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On April 16, 2013, the Michigan Court of Appeals affirmed in a published opinion a trial court’s grant of a judgment of divorce, despite the fact that the plaintiff-wife in the divorce was mentally incompetent and the defendant-husband in the divorce was no longer male. In Estate of Devon Burnett, Docket 309640. The plaintiff incompetent spouse was 79 years old and suffering from dementia. The defendant spouse was a post-operative transgender male to female. This case brings to light two very interesting and important public policy considerations, which the Court of Appeals declined to address. First, should guardians of an incompetent spouse be able to sue for divorce on behalf of the incompetent spouse? Second, should the courts define a man and a woman by their biological sex? In dicta, the Court acknowledged that defendant’s argument that as a matter of policy, allowing guardians to file for divorce on behalf of an incompetent spouse who never filed for divorce while competent could lead to divorces brought by family members merely for financial gain, was an interesting one, but noted that such a policy consideration was better left to the legislature of the Michigan Supreme Court. In this particular case, the evidence clearly established that the parties were no longer holding themselves out as married. They were living in separate states, and there was no indication that the defendant spouse provided any support to the plaintiff incompetent spouse after 2005. If the plaintiff wife had been competent, certainly no judge would question her decision to file for divorce. However, the issue does remain–what purpose does divorce serve other than a financial advantage to the guardians and beneficiaries of the incompetent spouse’s will? On the one hand, if divorce is necessary to address the possibility of an abandoned spouse leeching off of an incompetent spouse’s means for support, then certainly, divorce actions initiated by guardians of an incompetent spouse seems necessary. On the other hand, is it equitable to allow guardians to initiate divorce actions solely for the purpose of financial gain once the incompetent spouse has passed away? Also in dicta, the Court of Appeals noted that it was declining to adopt a definition of “man” and “woman” as defined by biological characteristics. Since the Michigan Constitution and Michigan law expressly forbid same sex marriage, this decision from the Court of Appeals was surprising. On the one hand, adopting the view that ones status as male or female is determined by ones chromosomal pattern could allow for couples in a transgender relationship to legally marry, despite the fact that outwardly, the marriage may appear to be one between the “same sex.” On the other hand, the decision not to define a “man” and a “woman” at law may avoid confusion with other areas of the law where biological sex may be relevant. It seems that the Court of Appeals was fearful of the policy implications of such a decision, and so, instead of answering the question–to be or not to be–it simply declined to respond. Such an action from the Michigan Court of Appeals is not surprising. Just a few months ago, it acted similarly in its published decision regarding custody of a child between two same sex parents that were legally married in another state, as described in this blog for Usitalo v Landon.

Labels: appeal, appellate review, authority of guardian, divorce, Michigan, public policy, same sex couple, same sex marriage, transgender, Washtenaw County

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In a recent case, In the Matter of Kloosterman, unpublished opinion per curiam of the Court of Appeals, issued March 26, 2013 (Docket No. 312138), the Court of Appeals had the opportunity to examine the meaning of MCL 712A.2(b), the provision which permits a trial court to take jurisdiction over the child in a child welfare proceeding. In the case, Respondent-Father was appealing an order terminating his parental rights to his minor child. The petition had been filed by Respondent-Father’s parents, who were the minor child’s grandparent-guardians. The minor had lived with the grandparents for several years, and after unsuccessful attempts at convincing Respondent-Father to let them adopt the child, they filed the petition under MCL 3.977(2). Interestingly, when the grandparents filed the petition, Respondent-Father was serving a 6-20 year sentence for conducting a criminal enterprise. However, in May 2012, the Court of Appeals reversed that conviction in People v Kloosterman, 296 Mich App 636; 823 NW2d 134 (2012). The Trial Court determined that it has subject matter jurisdiction under MCL 712A.2(b)(1) and (2), and terminated Respondent-Father’s rights to the minor child under MCL 712A.19b(3)(g). On appeal, the Court of Appeals, using the plain meaning doctrine, reversed the Trial Court’s order. The Court noted that the Trial Court had improperly expanded the meaning of MCL 712A.2(b)(1) and (2) in an effort to bring the child with the Trial Court’s jurisdiction. The Court noted that subsection (1) could not apply because “parent or other person legally responsible” clearly would apply to the grandparent-guardians, and not the father, and subsection (2) could not apply, because the plain meaning of that section did not encompass “the broader social environment of the child.” In the Matter of Kloosterman, unpublished opinion per curiam of the Court of Appeals, issued March 26, 2013 (Docket No. 312138). Since the Court reversed based on the jurisdictional issue, it never reached the statutory ground(s) or best interest determination. In light of the Respondent-Father’s conviction being overturned, it will be particularly interesting to see how these analyses might change should another petition be filed, and whether or not proper jurisdiction can be found in the first place.

Labels: appeal of termination of parental rights, appellate review, child welfare, criminal conviction reversed; statutory interpretation; appeal, guardians, jurisdiction over the child, plain meaning

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In a recent opinion, the Michigan Supreme Court in People v Trakhtenberg, __ Mich __; __ NW2d __ (2012)(Docket No 143386) addressed a very narrow issue (among many larger issues) - the use of collateral estoppel by the prosecution to prevent a criminal defendant from challenging his trial counsel’s effectiveness. Defendant Trakhtenberg, after being convicted by the trial court and losing his direct appeal, filed a civil lawsuit alleging legal malpractice. This was summarily disposed of, by motion, and his appeal denied. In his criminal case, Defendant Trakhtenberg had filed a motion for relief from judgment which was denied by both the Trial Court and the Court of Appeals. However, the Supreme Court retained jurisdiction while remanding back to the COA to remand to the Trial Court for a Ginther hearing. Based on this hearing, the Trial Court ruled that Defendant’s counsel was ineffective and ordered a new trial, however, the COA reversed. The Supreme Court granted leave. The Supreme Court distinguished this case from cases like People v Gates, 434 Mich 146 (1990) and Yates v United States, 354 US 298 (1957) by noting first and foremost, it was the prosecution and not the Defendant asserting collateral estoppel “to estop the Court’s full review of defendant’s claim that he received ineffective assistance of counsel.” Ultimately the Court held that the COA erred when it applied the doctrine of collateral estoppel to Defendant Trakhtenberg’s ineffective assistance of counsel claim because the defendant did not have a “fair and full opportunity to litigate his claim in the malpractice proceeding.” While a narrow holding, this is still a potentially big win for similarly situated defendants.

Labels: appeal, appellate review, collateral estoppel, criminal appeal, ginther hearing, legal malpractice, michigan supreme court, Oakland County, offensive collateral estoppel, prosecutor, trakhtenberg

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