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STATE OF MICHIGAN IN THE SUPREME COURT

Supreme Court Case No. 153980 and 153981 Court of Appeals Case No. 323387 Court of Appeals Case No. 329264 Saginaw County Probate Case No. 13-130558 DE

In Re:

James Erwin, Senior, Deceased /

APPELLANT'S BRIEF ON APPEAL TO MICHIGAN SUPREME COURT

ORAL ARGUMENT REQUESTED

L. FALLASHA ERWIN (27018) Commercial Law Corporation, P.C. Attorney for Appellant 220 Bagley, Suite 1010 Detroit, MI 48226 (313) 964-2502 (phone) (313) 964-2929 (fax) Email: ferwin@sbcglobal.net

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TABLE OF CONTENTS

TABLE OF CONTENTS.................................................................................................. .............iii

TABLE OF AUTHORITIES..........................................................................................................iv

OPINION AND ORDER APPEALED FROM AND RELIEF SOUGHT........................……x

STATEMENT OF QUESTIONS PRESENTED........................………………………………..xii

First Issue: Whether Maggie Erwin (Maggie) is excluded from the definition of surviving spouse of JES by MCL 700.2801(e)(2)?

Second Issue: Whether Maggie would be unjustly enriched if she does not contribute to the estate of JES by receiving entirety property?

Third Issue: Whether Beatrice King (King) was subject removal as the personal

representative of the estate pursuant to MCL 700.3611(2)?

Fourth Issue: Whether the probate court erred in denying King and other interested persons' petition for change of venue for the convenience of the majority of interested persons under MCR 5.128?

Fifth Issue: Whether the Tuscola County Probate Court Judge should be

disqualified from hearing the instant action?

INTRODUCTION........…......................…………………………………………….……….......1 BASIS OF JURISDICTION............................................................................................................3 STATEMENT OF QUESTIONS INVOLVED..............................................................................3 STATEMENT OF MATERIAL PROCEEDING AND FACTS..................................................4 A. UNDERLYING FACTS DOCKET # 323387.................................................................4 1. Family Background.................................................................................................4 2. Initiation of Probate Processing............................................................................5 3. Probate Court Processing.......................................................................................6

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4. Motion Hearing.......................................................................................................8 B. UNDERLYING FACTS DOCKET # 329264...............................................................10 1. Civil Action.............................................................................................................10 2. Removal of King as Personal Representative and Request for Stays .......................................................................................................................12 3. Restraining Order.................................................................................................13 4. May 6, 2015 hearing on Change of Venue.........................................................14 5. May 18, Hearing to Remove King as Personal Representative.......................15 6. Rehearing.............................................................................................................16 ARGUMENT....………………….………………………..……………………...........................18

A. STANDARD OF REVIEW……………………………………………………….........18 B. EXCLUSION AS SURVIVING SPOUSE.....................................................................20

C. ENTIRETIES PROPERTY............................................................................................28 1. The Tkachik Decision...........................................................................................28. 2. The Tkachik Decision Applied to Instant Matter..............................................30.

D. REMOVAL OF PERSONAL REPRESENTATIVE...................................................33

1. Standing as Interested Person.....................................................................................33 2. Conditions for Removal...............................................................................................33

3. Basis of King's Removal..............................................................................................35

E. VENUE AND DISQUALIFICATION..............................................................................41 1. Venue..............................................................................................................................42 2. Disqualification of Judge..............................................................................................44

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CONCLUSION..............................................................................................................................50

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TABLE OF AUTHORITIES Cases

Cain v. Dep't of Corrections, 451 Mich 470 (1996).......................................................................45

Cliff v Michael E. Heath, D.D.S., 2011 WL 14475.............………................…..………………. 32

Crampton v. Dep't of State, 395 Mich 347 (1975)..........................................................................45

Detroit Leasing Co. v City of Detroit, 2006 WL 1009266.….….…………………..........................27

Grotelueschen v Grotelueschen, 113 Mich.App 395, (1982)……………………………………..28

Hanik v Wilczynski, 33 Mich App 268 (1971)….......................………………….……………….27

Horner v McNamara, 249 Mich App 177, 186 (2002)…………………….......................………29

Holmes v. Michigan Capital Medical Center, 242 Mich App 703, 711 (2000)..…........................27

Huntington Nat Bank v. Ristich, 292 Mich.App 376, 383; 808 NW2d 511 (2011)........................34

In re Duane v. Baldwin Trust 274 Mich.App. 387, 733 N.W.2d 419 (2007)……...…………….35

In re Estate of Harris 151 Mich App 780 (1986)..……………….………..................................passim

In re Kramek Estate, 268 MichApp565, 710 NW2d 753 (2005)....………………………………38

In re Lundy Estate, 291 Mich App 347 (2011)............................... …………………………....…….18

In re Nale Estate, 233 Mich App 525 (2010)…..............................………..…….....……………18

In Re Murchison, 349 U.S. 133 (1955)...........................................................................................45

In re Napieraj, 304 Mich.App. 742, 745–746, 848 N.W.2d 499 (2014)........................................25

In re Peterson, 415 Mich App 423, 889 NW2d 753 (2016)...................................................passim

In re Samuel Gentile Trust, 2010 WL 4137450…………………………………………………..19

In re Temple Martial Trust, 278 Mich App 122, (2008) ...........................................................19,33

In re Webb H. Coe Martial and Residuary Trusts, 233 Mich App 525 (1999)…......................…18

Kidder v Ptacin, 284 Mich App 166, 169, 771 NW2d 806 (2009).................................................19

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Kleinert v. Lefkowitz, 271 Mich. 79, 259 N.W. 871 1935).............................................................42

Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 100 L. Ed. 2d 855 (1988).............45

Matter of Dupras, 140 Mich App 171, 363 NW2d 26 (1984)...……………….………….………18

Matter of Estate of Sumpter, 166 Mich. App. 48, 419 N.W.2d 765 (1988)………………...……38

Meszaros v. Astolas's Estate, 282 Mich 675 (1937)......................……………………………….18

People v Babcock, 469 Mich 247, 253 (2003)….............................……..……………………………18

People v Lukity, 460 Mich 484, 488, 596 NW2d 607 (1999).........................................................19

People v Mayhew, 236 App 112, 123, n5 (1999)…………………….…............................….…..32

People v. Sloan, 450 Mich. 160, 177 n. 8, (1995)….…………………………............................…...27

People v Waterstone, 296 Mich App 121, 132, 818 NW2d 432 (2012).........................................19

Schwartz v Triff, 2 Mich App 379 (1966).……....................……………………………………...27

Selph v Evanoff, 28 Mich App 201 (1970)…………………….....………………….....................27

Spalding v Spalding, 355 Mich 382, 384–385, 94 NW2d 810 (1959)............................................19

Terrien v Zwit, 467 Mich 56; 648 NW2d 602 (2002).......................................................................2

Tkachik v. Mandeville, 487 Mich. 38, 790 NW2d 260 (2010)…..........................………......passim

Veenstra v Washtenaw Country Club, 466 Mich 155, 159 (2002)........................……….………18

Withrow v Larkin, 421 U.S. 35, 47 (1975)......................................................................................45

Statutes

MCL 600.861...................................................................................................................................42

MCL 600.866(1)..........................…………………………………………………………………18

MCL 600.867(1).….....….....………………………………………………………………...passim

MCL 700.290…...................…………………………………………………………………passim

MCL 700.1102……………………………………………………………………………………26

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MCL.700.1105(c)…...........………………………………………………………..…………passim

MCL 700.2101.………………………………………………………………….......................….21

MCL 700.2114.…………….......................………………………………………………………21

MCL 700.2401.................................................................................................................................21

MCL 700.2801(2)……………………………………………………………….………....... passim

MCL 700.2801(2)(e)................................................................................................................passim

MCL 700.3201............................................................................................................................42,43

MCL 700.3201(4)......................................................................................................................43,44

MCL 700.3301 through 700.3311..................................................................................................26

MCL.700.3415.................................................................................................................................25

MCL 700.3611(1)..………………………...………………………………………………......33,34

MCL 700.3611(2)..………...……………………………………………………………….…19,35

MCL 700.3415……………………………………………………………………………………38

MCL 700.3703(4)…………………………………………………………………………………38

MCL 700. 3705(1)…………………………………………………………………………...……37

MCL 700. 3706(2)……………………………………………………………………...…………37

MCL 700.3951(1)............................................................................................................................37

20 Pa. Cons.Stat. Ann. § 305(b).....................................................................................................23

Rules

MCR 2.003......................................................................................................................................44

MCR 2.003(C).................................................................................................................................44

MCR.2.114(B)(2)……...………………………………………………………………………12,13

MCR 2.119 (E) (2)..........………………………………………..……………....................28,35,28

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MCR 2.222.........................……………………………………………………..……………..42,44 MCR 2.313(A)(5)(a)..........................................................................................................................7

MCR 2.401(G)(1)............................................................................................................................47

MCR 2.504(B).................................................................................................................................47

MCR 2.603......................................................................................................................................47

MCR 2.614…......…………………………………………………………………………………48 MCR 2.614(A)(1)............................................................................................................................41 MCR 3.101(D).................................................................................................................................41 MCR 5.125……………………………………………………………………………………......34

MCR 5.125(B)(1)…………………………………………………………………………………22 MCR 5.128..............................................................................................................................4,42,44 MCR 5.128(A)............................................................................................................................34,35 MCR 5.203......................................................................................................................................37 MCR 5.307(A).................................................................................................................................37 MCR 7.303(B)(1).....……....…………………………………….....………………………………3 MCR 7.305(H)(3).....…………………………………………….....………………………………3 MRE 603..........................................................................................................................................32 MRE 901.……………………………………………………………….......................…………..27 MRE 1002…………………………………………………………………………........................27 Other John H. Martin, Improving Michigan Estate Settlement, 29 T.M. Cooley L. Rev. 1, 21-22 (2012)…….......................................................…………………………………………………...38 Michigan Code of Judicial Conduct, Canon 2(A)...........................................................................44

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STATEMENT OF QUESTIONS PRESENTED

I.. Did the probate court and COA err in finding Maggie was not excluded as a surviving spouse under MCL 700.2801(2)(e) without credible evidence even though she had been separated from JES for over thirty years?

Appellant answers “Yes.” Appellees answer “No.”

Probate Court answered “No.” Court of Appeals answered "No"

II.. JES acquired property by the entirety with Maggie in 1973. In 1976, ME moved out of the martial home and established a separate domicile until JES' death on October 17, 2012. Did the probate court and COA err in failing to order a contribution from Maggie to JES' estate when she was absent from the property for over thirty years and did not assist in its maintenance?

Appellant answers “Yes.” Appellees answer “No.”

Probate Court answered “No.” Court of Appeals answered "No" III Whether Beatrice King was subject removal as the personal representative of the estate pursuant to MCL 700.3611(2)? Appellant answers “Yes.” Appellees answer “No.”

Probate Court answered “No.” Court of Appeals answered "No" IV Whether the probate court erred in denying King and other interested persons' petition for change of venue for the convenience of the majority of interested persons under MCR 5.128?

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Appellant answers “Yes.” Appellees answer “No.”

Probate Court answered “No.” Court of Appeals answered "No" V. Whether the Tuscola County Probate Court Judge should be disqualified from hearing the instant action? Appellant answers “Yes.” Appellees answer “No.”

Probate Court answered “No.” Court of Appeals answered "No"

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I. INTRODUCTION

The Court, by its order dated September 29, 2017, granted leave to appeal this matter from

the Court of Appeals ("COA"). This appeal is the consolidation of two cases. The first case,

Docket # 323387, involved when is a spouse excluded from the statutory definition of a surviving

spouse of a decedent who dies without a will. The decedent, James Erwin, Senior, ("JES")

married Maggie Grays a/k/a Maggie Erwin ("Maggie") in 1968, his second marriage. He died on

October 17, 2012 without a will. At the time of his death, he was still married to Maggie.

However, Maggie voluntarily moved out of the martial home with JES in 1976, sought child

support from JES, and remained separated from JES while maintaining an independent household

until his death.

Beatrice King ("King"), JES' second oldest child from his first marriage, was appointed

personal representative of the JES Estate ('Estate") in June of 2013. Since Maggie had been an

absentee spouse for over thirty years, King sought from the probate court a determination that

Maggie was excluded as a surviving spouse under MCL 700.2801(2)(e). Moreover, King sought a

contribution from Maggie for the maintenance of the entirety property due to her extended

absence. King argued that Maggie was unjustly enriched because she did not contribute to the

maintenance of the entirety property citing the decision of Tkachik v. Mandeville, 487 Mich. 38

(2010), Appx. 297a,

The probate court found Maggie's absence was not enough to exclude her as a surviving

spouse under MCL 700.2801(2)(e). The probate court further found Maggie was not unjustly

enriched as required by Tkachik, supra, and accordingly, did not have to contribute to the JES

Estate.

The COA affirmed the decisions of the probate court.

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The second case, Docket # 329264, involved several issues. The first issue involved King's

removal as personal representative by Maggie for failure to provide an accounting. The failure to

provide an accounting did not relate to Maggie but her daughter and power of attorney.

King had challenged Maggie's standing as an interested person to file a petition for her

removal as personal representative since Maggie's status as an interested person was as the

surviving spouse of JES. Since the appeal of Docket # 323387 was pending before the COA,

King argued MCL 600.867(1) stayed Maggie from pursing a petition to remove her. The probate

court ultimately issued a partial stay after granting Maggie's request for King's removal.

The second and third issues appealed involved the change of venue and disqualification of

the probate judge sitting in Tuscola County. The issues are related since the majority of heirs

wanted a change of venue because the Tuscola County Probate Court exhibited through the

proceedings a bias against them. Moreover, the regular communication and direction from

Saginaw County to Tuscola County raised suspicion that Saginaw County, whose probate judges

supposedly recused themselves, were controlling the proceedings in Tuscola County.

The Supreme Court in Terrien v Zwit, 467 Mich 56; 648 NW2d 602 (2002) restricted

lower courts from creating and identifying public policies that individual judges thought were

worthy of furtherance, or from general considerations of supposed public interest.

The probate court and the COA with their rulings have changed the definition of an

excluded surviving spouse for purposes of Michigan intestacy law and when an absent spouse

must contribute to an estate when receiving entirety property. Following their rulings, a spouse

only has to be married at the time of a death of a spouse to qualify as a surviving spouse. By

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adopting standards not provided in the statute and arbitrarily selecting argument as substantive

proof, the lower courts have established public policy forbidden by Terrien.

The exclusion of a spouse from the definition of a surviving of a surviving spouse under

Michigan intestacy law needs clarification. The Court can provide the clarification by resolving

the conflict of two COA panels on the interpretation of MCL 700.2801(2)(e).

II. BASIS OF JURISDICTION

The Court of Appeals ('COA") issued an unpublished opinion on May 10, 2016 on

Docket # 323387 and Docket # 329264. The COA affirmed the probate court decisions, among

other things, finding that Maggie should not be excluded as the surviving spouse of JES under

MCL 700.2801(2)(e) even though she had been physically separated from the decedent for over

thirty years.

King filed an application for leave to appeal on June 21, 2016 with the Supreme Court.

The Court granted the application with its order dated September 29, 2017. Jurisdiction with the

Court is pursuant to MCR 7.303(B)(1) and MCR 7.305(H)(3).

III. STATEMENT OF QUESTIONS INVOLVED

First Issue: Did the probate court and COA err in finding Maggie was not excluded as a surviving spouse under MCL 700.2801(2)(e) without credible evidence even though she had been separated from JES for over thirty years? Second Issue: JES acquired property by the entirety with Maggie in 1973. In 1976, ME moved out of the martial home and established a separate domicile until JES' death on October 17, 2012. Did the probate court and COA err in failing to order a contribution from Maggie to JES' Estate when she was absent from the property for over thirty years and did not assist in its maintenance? Third Issue: Whether Beatrice King (King) was subject to removal as the personal representative of the estate pursuant to MCL 700.3611(2)?

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Fourth Issue: Whether the probate court erred in denying King and other interested persons' petition for change of venue for the convenience of the majority of interested persons under MCR 5.128?

Fifth Issue: Whether the Tuscola County Probate Court Judge should be disqualified from hearing the instant action? III. STATEMENT OF MATERIAL FACTS AND PROCEEDING

A. UNDERLYING FACTS DOCKET # 323387 1. Family Background JES passed away on October 17, 2012 without leaving a will. The decedent moved to

Saginaw Michigan in 1944. He lived his entire live in Saginaw until he died while living in

Kansas.

JES was married twice. His first marriage was to Mattie Atwater a/k/a Mattie Erwin, and

produced had six children: L. Fallasha Erwin (LFE), Holly, MI; Beatrice King (King), Clarkston,

MI; Yvonne Flowers, Bridgeport, MI; James Erwin, Jr., Saginaw, MI; Brenda Erwin, Saginaw,

MI; and Belinda Erwin, Saginaw, MI.

JES' second marriage was to Maggie in 1968 and this union produced four children:

Sherry Erwin (deceased); Jacqueline Nash (Nash), Olathe, KS; Billy James Erwin (BJE),

Saginaw; MI and Stacy Erwin Oakes (Oakes), Saginaw, MI. Sherry passed away in 1991 leaving

one son, her heir, Demarkius Erwin.

All JES' children were born in Saginaw and they all are adults over the age of twenty-one

at JES' death. In 1973, 5 years after he married Maggie, JES acquired the property at 3012

Douglass as entirety property, and maintained it as the martial abode for him and Maggie and

their principal residence. Deed, Appx. 40a. In February of 1976, three years after acquiring the

Douglass property, Maggie unilaterally decided to move from the martial home to establish a

separate residence.

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On March 11, 1976, JES consented to the entry a support order after Maggie filed a

complaint for child support against him. Support Documents, Appx. 41a. From February of 1976

until JES' death, Maggie maintained a separate domicile from JES. She had no continuous

interaction with JES, and never resumed a martial relationship with him.

JES lived alone until health issues caused him to require assistance with his day-to-day

affairs. During his life, Willie C. Erwin, Victoria Harris, and Hattie Price all assisted him in his

personal and business affairs. Affidavits, Appx. 44a. Roughly the last two years of his life, JES

suffered from dementia causing him to require around the clock observation. Maggie did not

assist in JES' care.

LFE is the oldest child from JES' first marriage and Nash is the oldest surviving child from

his second marriage. They had several telephone conferences regarding JES' health. In the early

part of April 2012, they made the decision that JES would move in with Nash in Kansas. Shortly,

after moving in with Nash, JES scheduled a flight back to Saginaw to attend the funeral of his

former first wife, Mattie.

Unfortunately, JES collapsed on the flight to Saginaw and had to be hospitalized in Flint

Michigan. He was not able to attend the funeral and he was subsequently transported back

Kansas.

LFE and Nash communicated regularly while JES was in Kansas until he passed away

approximately 6 months later.

2. Initiation of Probate Processing

The cooperation between the two sets of JES' children ceased after JES' death. Nash, BJE

,and Oakes chose to make decisions regarding the Estate of JES without the input from JES' older

children. Because of the lack of communication and lack of cooperation specifically from Nash

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and Oakes, LFE and King, JES' oldest children, petitioned the Saginaw County Probate Court to

open a probate estate for JES.

On May 6, 2013, King served all potential heirs of her intent to open an informal probate

estate for JES and anyone who wanted to object had 14 days to do so. None of the potential heirs

and no one else filed objections and King filed for appointment and was appointed the personal

representative of the JES Estate on June 12, 2013.

On June 23, 2013, King informed all potential heirs of her appointment as personal

representative and requested certain material and information to administer the Estate. No heirs

served responded to the request.

3. Probate Court Processing

King filed a motion to compel production and inspection of the Douglass on

September13, 2013. A hearing date was set for October 2, 2013. Nash did not file a response but

filed a petition to remove King as personal representative on September 16, 2013.

Because of the relationship that Oakes had with the probate court judges in Saginaw

County, they disqualified themselves. Oakes was a political activist the political Saginaw area

and served two terms as a state representative for the 95th District which encompassed the

Saginaw area. The Saginaw County Probate Court initiated the process that had the matter

assigned to Judge Nancy L. Thane, Family Court Judge of Tuscola County.

Judge Thane scheduled a hearing for January 22, 2014 on an alleged stipulation for King's

motion to compel and inspection and Nash's petition for removal of King as personal

representative. The scheduled hearing date, however, was based upon the forged signature of

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King's counsel (LFE)1 who only learned of the hearing approximately one week before the

hearing date when he called the Tuscola Probate Court to ask about scheduling.

King and her counsel attended the January 22, 2014 hearing and Judge Thane issued

orders dated January 24, 2014 granting King's motion to compel and for inspection and

dismissing Nash's petition for removal of King as personal representative.

LFE served all the interested parties with the order to compel and for inspection. All

interested parties served delayed King's inspection of the Douglass property which prevented

King from taking an inventory of the contents. The preparation of an inventory was ongoing

since disclosures from the heirs suspected of concealing assets were either evasion or

inconclusive. Moreover, the probate court order to compel was either completely ignored or

respondents gave incomplete and/or deceptive answers.

Because of the lack of response from the interested parties served, King filed a Motion for

Sanctions. In the motion, King argued that the respondents had not complied with the earlier

probate court order to compel discovery requests and described the deficiencies. In addition,

King argued the probate court should have awarded sanctions pursuant to MCR 2.313(A)(5)(a)

because the issuance of the order to compel required the probate court to issue sanctions since the

conditions for issuance were satisfied.

Because of issues that arose regarding access to the Douglass property and the claim of

Maggie that she was the surviving spouse of JES, King filed a Motion for Determination that

Maggie is not the surviving spouse of JES and that she should contribute to the Estate of JES for

the Douglass property. The probate court set a hearing date of July 9, 2014.

1LFE filed an affidavit with the probate court stating his signature on a stipulation for the hearing date was falsified. This filing was required because the Tuscola Register questioned LFE's veracity and expressed her opinion to Judge Thane. Erwin Affidavit, Appx. 50a.

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Prior to the hearing date, King only received responses from Oakes and Maggie although

the response for Maggie was actually from Oakes. Maggie filed an unsigned affidavit of JES and

Maggie. Unsigned Affidavit, Appx 52a The unsigned document entitled affidavit from a Wayne

County Circuit Court action filed by LFE in 2010 against General Motors Corporation in an

attempt to get Maggie back on JES' health insurance because she had been terminated. LFE

voluntarily dismissed the lawsuit at the behest of General Motors. Wayne County Circuit Docket,

Appx 54a.

.In addition to her response, Maggie had filed a late claim for funeral expenses. King

issued a subpoena to Maggie to testify at the hearing since her claim stated she had paid

approximately $12,000 in cash for JES' funeral. King wanted to question Maggie about such a

large expenditure in cash. In addition, King wanted to question both Maggie and Oakes about

Oakes' special relationship with the operator of the funeral parlor.

4. Motion Hearing

At hearing, for the first time Maggie's counsel disclosed that Maggie would not be

attending the hearing. (07/09/14 Tr. 4 L 5-11, Appx 55a) King filed affidavits of Willie C.

Erwin, Victoria Harris, and Hattie Price who all knew JES and at times care for him. All could

testify about his personal and business affairs. (07/09/14 Tr. 4 L 13-23, Application ex B, Appx.

44a) Oakes and Maggie offered no sworn testimony or substantiated evidence and replied on an

unsigned document entitled affidavit.

Furthermore, the probate court allowed only Nash to place on the record an unsworn

statement. (07/09/14 Tr. 24-29, Appx. 55a). The probate court did not allow any sworn

testimony or allow any other interested party to make a statement. (07/09/14 Tr.29 L 17-22, Appx

55a) King's counsel had requested the probate court to allow others to testify (07/09/14 Tr. 29 L

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16-22, Appx 55a) because of the statements made by Nash were not under oath, were not true and

a requested evidentiary hearing would allow credible evidence to be collected. (07/09/14 Tr. 35 L

1-3, Appx 55a). The probate court decided that she would take the matter under advisement and

decide whether the motions warranted an evidentiary hearing. (07/09/14 Tr. 35 L17-23, Appx

55a).

The probate court then made an unusual statement at the end of the proceedings by stating,

"I'll probably be putting myself right out there on the fence for this" and went on to imply the JES

heirs who started the probate estate may have done so just for money. (07/09/14 Tr.36, Appx

55a).

The probate court issued an opinion on July 17, 2014 based only on Maggie attorney's

arguments, and Nash's unsworn statements finding that Maggie was JES' surviving spouse and

Maggie would not have to contribute to JES' estate for the entirety property. (7/17/14 opinion,

Appx 93a)

The probate court opinion required King to submit an order for execution by the court.

The submitted order was signed order on August 7, 2014. The probate court issued a corrected

order on September 2, 2014 to reflect properly that the hearing was held on July 9, 2014 and not

on January 9, 2014.

King filed a timely Claim of Appeal on August 27, 2014 with the COA. After the Claim

of Appeal was filed, Maggie, through counsel, filed two motions to suppress the record on appeal.

The first motion was filed to supplement the record with a signed affidavit for Maggie and JES.

King challenged the affidavit because it was signed by a different notary than the unsigned

affidavit. The COA allowed the supplement of the record with the signed affidavit.

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Maggie's second motion was to supplement the record with the complaint filed in the

Wayne County against General Motors. The COA granted this motion even though the complaint

was not introduced in the probate court and there never was a hearing on the complaint before it

was dismissed.

King filed a motion for a stay in the COA on October 22, 2015 because of what King

perceived as unusual proceedings in the probate court. Maggie filed an answer on November 2,

2015. The COA, by a vote of 2 to 1, on November 18, 2015 denied King's request for a stay of

the probate proceedings. (COA order, Appx.95a)

The Appellant's brief was filed on January 15, 2016. The Appellee Maggie filed her

Appellee brief on February 8, 2016 and King filed her Reply Brief on February 26, 2016.

Oral argument was scheduled for and held on May 3, 2016. The COA issued an

unpublished opinion on May 10, 2016 affirming the probate court's decision finding that Maggie

is JES surviving spouse and she does not have to make a contribution to the Estate for the entirety

property transferred to her.

B. UNDERLYING FACTS DOCKET # 329264

1. Civil Action

Shortly after King filed the Claim of Appeal on August 27, 2014 (Docket #323387),

Maggie filed a civil action on a claim for the alleged funeral expense paid for JES on November

17, 2014. Because Maggie had not submitted the claim to King until March 18, 2014, the claim

was denied by King since the period for submitting estate claims had expired on October 21,

2013. (Claim Disallowance, Appx. 351a) Although the probate court ordered Maggie to submit

or resubmit the claim to King, she never did so King issued a disallowance

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. After, Maggie filed the civil action; King filed a motion to stay the civil action on

December 12, 2014. At a hearing held on January 16, 2015, the probate court denied the request

for a stay. King sought a stay because the paramount issue of the administration of the Estate is

whether Maggie is the surviving spouse of JES. A surviving spouse has superior priority in the

administration of an estate.

Maggie instituted the civil action as the real party in interest based upon a sworn claim

made under penalty of perjury that she had paid cash for the funeral of JES. (Funeral Proof of

Claim, Appx 96a). During the discovery period, King made several discovery requests of

Maggie. She did not file a response to King's discovery requests but filed a Motion for a

Protective Order and Sanctions on March 25, 2015, King responded arguing Maggie had not

established the grounds that warranted the issuance a protective order and such a protective order

would restrict King from basically gaining any information from Maggie.

The probate court chose not to conduct an evidentiary hearing on the request for a

protective order even though King had raised several objections. The probate court overruled

King's objections and instructed Maggie's counsel, Carolyn Bernstein ('Bernstein"), to submit the

order under the seven-day rule of MCR 2.602(B)(3). King objected to the accuracy of the

Maggie's proposed order and the probate court set a hearing date of May 27, 2015.

In the process of obtaining the protective order, Bernstein, revealed for the first time that

Oakes held a Power of Attorney for Maggie at the time King was appointed personal

representative. (POA, Appx 100a). The Power was not executed until May 24, 2013 and drafted

by Maggie's counsel but never disclosed to the probate court and/or King's counsel. However,

Maggie is acknowledged to suffer from Dementia specifically Alzheimer disease dating back to

2010 or before.

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2. Removal of King as Personal Representative and Request for Stays

On March 25, 2015, Maggie, in her capacity as JES' surviving spouse, also filed a petition

to remove King as personal representative and for sanctions. On April 8, 2015, King filed a

Response and Brief to Maggie's petition for removal and sanctions, which addressed the

allegations for removal. (Response to Remove, Appx 106a) The probate court scheduled the

hearing on the petition for removal for April 15, 2015. One day prior to the hearing, April 14,

2015, Maggie filed a First Supplement to the Petition to Remove Personal Representative.

At the April 15, 2015 hearing, King objected to the Petition to Remove Personal

Representative because it failed to comply with the Michigan Court Rules, specifically MCR

2.114(B)(2). Since neither Maggie nor her counsel, Bernstein, signed the petition under penalty

of prejudice; the probate court instructed Maggie to correct the petition, re-file it, and schedule a

new hearing.

Prior to the May 27, 2015 hearing date on King’s objection to the order granting a

protective order to Maggie, King filed a motion in the COA on April 20, 2015, to stay Maggie

from acting as JES' surviving spouse since the COA had not decided the issue. King argued the

COA should prevent Maggie pursuant to MCL 600.867(1) from filing a petition to remove King

as a surviving spouse when the Court had not decided that issue of whether she is JES' surviving

spouse. King also filed in probate court on April 20, 2015, a Petition and Order to Change Venue

for the convenience of the witnesses and parties. Petition to Change, Appx 357a

By a vote of 2 to 1, the Court of Appeals denied King's Motion for a Stay without

explanation from the majority on May 14, 2015. (COA Order, Appx 95a) This ruling allowed

Maggie to purse the petition to remove King as personal representative.

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One day after King filed her Motion for a Stay in the Court of Appeals and Petition and

Order to Change Venue in probate court on April 21, 2015, Maggie filed an Amended Petition to

Remove the Personal Representative and sought sanctions in probate court and set a hearing date

of May 18, 2015. This amended petition was the same as the original petition filed except the

petition complied with MCR 2.114(B)(2) and sought sanctions. Oakes' counsel, Robert Miller

("Miller"), filed a Response supporting the petition filed by Maggie. The Response supporting the

amended petition was basically identical to the Response filed on the original petition on April 7,

2015.

3. Restraining Order.

On May 1, 2015, without notice to King and/or LFE, Maggie filed an ex-parte Petition for

a Restraining Order and Consolidate Hearings. The rationale Maggie gave for the requesting the

restraining order and to consolidate hearings was that King had filed a motion for a stay in the

Court of Appeals and had filed a petition to change venue, which Maggie considered frivolous

actions.

In requesting the probate court to consider her unilateral request, Bernstein without

consent or notice to King's counsel sought to move hearing dates established by King, May 6,

2015, and May 27, 2015, to a date solely selected by her, May 18, 2015.

Although Bernstein did not give King advance notice of her filing of the ex-parte Petition

for a Restraining Order and Consolidate Hearings, she apparently had communication with Miller,

who had an ex-parte communication with the presiding judge in Tuscola County and also sent the

ex-parte communication to the chief judge of Saginaw County who because of prior dealings with

Oakes had disqualified himself. Miller Letter, Appx 160a

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The probate court granted Maggie's request and issued a restraining order and an order to

consolidate hearings on May 5, 20152. The probate court without notice to King and her counsel

issued the restraining order one day prior to the scheduled hearing date of May 6, 2015 on King's

Petition and Order to Change Venue. The probate court allowed Maggie unilaterally to change a

hearing set by King for May 27, 2015 but allowed the May 6, 2015 hearing.

4. May 6, 2015 hearing on Change of Venue,

On May 6, 2015, the probate court held a hearing on King's Petition and Order to Change

Venue. (05/06/15 Tr, Appx. 164a. During the hearing, neither the probate court nor Bernstein

informed King and her counsel that the probate court had issued a restraining order the day before

restricting their activities in behalf of the Estate. Miller did not attend the hearing on May 6,

2015. In addition, neither the probate court nor Bernstein disclosed they had changed the May 27,

2015 hearing scheduled by King without concurrence from King and/or her attorney. Bernstein,

however, did disclose during the hearing that she had scheduled the hearing for removal of King

as personal representative for May 18, 2015.

The probate court denied King's Petition and Order for Change of Venue at the hearing3.

After the probate court's ruling, King's counsel disclosed to the probate court that he had a conflict

with the hearing date set for May 18, 2015 because he had a status conference scheduled in

United States District Court before Judge Sean Cox.

King's counsel mistakenly understood the probate court's request that he should provide

proof of his conflict to opposing counsel only. King's counsel missed the probate court's request

2 Restraining Order, Appx. 161a. 3 The probate court one day before the actual hearing noted it was denying King's petition in the May 5, 2015 restraining order. Restraining Order, Appx. 161a.

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that King's counsel also provide proof of the conflict to the probate court. King's counsel

provided proof to opposing counsel but failed to provide the same proof to the probate court.

On May 15, 2015, Friday, Judge Sean Cox of the United States District Court, Eastern

District rescheduled the status conference that was to be held on May 18, 2015. As a professional

courtesy, King's counsel informed opposing counsel of the adjournment with the expectation that

Bernstein was scheduling an alternative hearing since King was not available on May 18, 2015.

(King Affidavit, Appx. 353a)

5. May 18, Hearing to Remove King as Personal Representative

While King and her counsel were restricted by the probate court's restraining order of May

5, 2015 (Restraining Order, Appx 161a ) from taking any action in behalf of the Estate including

filing or responding to matters of the Estate. Bernstein on May 11, 2015, seven days before the

proposed May 18, 2015 hearing, filed a Supplemental Brief in Support of Petition to Remove

Personal Representative.

With King not available for a May 18, 2015 hearing and King's counsel expectation that

an alternative hearing date would be set, Neither King nor her counsel appeared in Tuscola

County Probate Court on May 18, 2015. However, both Bernstein and Miller appeared for the

May 18, 2015 hearing although Miller did not appear for the May 6, 2015 hearing. Neither

Bernstein, nor Miller nor the probate court attempted to contact King or her counsel to inform

them that the hearing of May 18, 2015 was taking place.

The probate court granted Maggie's petition removing King as the personal representative

of the JES Estate, awarded sanctions against King and LFE for actual attorney fees to Oakes of

approximately $13,000, ruled that King and LFE could not receive fees or reimbursement from

the Estate for work performed and allowed Maggie to appoint her handpicked successor personal

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representative without notice to any of the interested persons. Restraining Order, Appx. 161a.

The amount of attorney fees to be awarded to Maggie had not been determined at the time of this

filing. The probate court did not mention King's written Response (Response to Dismissal, Appx

106a) that addressed the allegations made by Maggie.

Bernstein allegedly mailed the proposed probate court's order removing King under the

seven-day rule, MCR 2.602(B)(3), on May 20, 2015. Because May 25, 2015 was the designated

national holiday, Memorial Day, King's counsel did not receive the proposed order in his office

until May 26, 2015. This receipt date was the last date that that King could file objections to the

proposed order.

King prepared and faxed objections to the proposed order on May 26, 2015. King’s

counsel then telephoned the Saginaw County Probate Court to advise the staff that objections to

the proposed order had been faxed and he was placing the filing fee for the objections in the mail

that day.

The Saginaw County Probate Court rejected the filing of the objections because the filing

fee did not accompany the objections. With King’s counsel located in Detroit and the time

constraints he had to prepare objections, he could not get the $20 filing fee to Saginaw before the

Register’s Office closed. The probate court subsequently signed the proposed order over King’s

rejected objections.

6. Rehearing

On June 18, 2015, King filed a Motion for Rehearing of Order Removing the Personal

Representative, Rehearing on Motion for Change of Venue for the Convenience, Motion for Stay

Pending Appeal, and Motion for Disqualification of Judge. The probate court set a hearing date

of July 6, 2015.

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On July 6, 2015, King orally argued on the Motion for Stay Pending Appeal and

Motion for Disqualification of Judge. (07/06/15 Tr., Appx. 221a). The probate court denied all

King's motions except for a partial stay. Specifically, King had asked the probate court to stay

any further proceeding with the removal of King as personal representative until the COA could

decide the key issue of the Estate, Maggie's status as a surviving spouse. The probate court

decided not to stay the entire proceeding but did stay Maggie from holding herself out as the

surviving spouse of JES until the Court of Appeals determined her status. (07/06/15 Tr. 25, Appx.

254a)

Maggie presented a proposed order under the seven-day rule and King filed objections that

the proposed order did not accurately reflect the probate court's ruling. The probate court

scheduled and held a hearing on the objections on August 13, 2015. (08/13/15 Tr., Appx. 255a).

The probate court issued the final order on August 26, 2015 that included language of a limited

stay of Maggie acting as a surviving spouse. (Probate Court Order, Appx 275a)

King filed a Claim of Appeal on September 15, 2015. The COA filed an administrative

order consolidating Docket #323387 and Docket #329264 and expediting both matters.

King filed a motion to stay the proceeding during the appeal on October 22, 2015. The

COA denied King's motion by its order of November 18, 2015.

Oakes filed a motion to dismiss the portion of King's appeal that involved attorney fee

sanctions on December 3, 2015. King filed an answer on December 28, 2015 and the COA issued

an order on January 19, 2016 denying Oakes request for a partial dismissal. (COA Order on

Dismissal, Appx. 277a)

King filed an Application for Leave to Appeal the Supreme Court on June 21, 2016. The

Supreme Court granted King's request for leave to appeal on September 29, 2017.

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IV ARGUMENT

A. STANDARD OF REVIEW

King seeks the Court's review of the two issues reviewed by the COA under Docket #

323387. Specifically, whether Maggie is not a surviving spouse because of the exclusion under

MCL 700.2801(2)(e) and whether Maggie would be unjustly enriched if she does not make a

contribution to the JES Estate of JES following the ruling of Tkachik v Mandeville, supra.

Generally, MCL 600.866(1) provides that an appeal from probate courts is not heard de

novo but on the record. In re Lundy Estate, 291 Mich App 347 (2011).

However, a de novo review may be appropriate for issues presented by reasons assigned

for appeal. Meszaros v. Astolas's Estate, 282 Mich 675 (1937). A review of whether Maggie is

excluded from the definition of a surviving spouse under MCL 700.2801(2)(e) involves statutory

construction. Appellate reviews of questions of law such as statutory construction are de novo

reviews. In re Nale Estate, 233 Mich App 525 (2010); People v Babcock, 469 Mich 247, 253

(2003); Veenstra v Washtenaw Country Club, 466 Mich 155, 159 (2002).

Although the review of the interpretation of statutes is de novo, the standard of review for

factual findings in probate court is "clearly erroneous." In re Webb H. Coe Martial and Residuary

Trusts, 233 Mich App 525 (1999); Matter of Dupras, 140 Mich App 171, (1984).

The probate court in determining that Maggie did not have to contribute to JES' estate did

not do so as a finding of fact but as stated in her opinion, based on argument. (Probate Court

Opinion, Appx. 93a) With no finding of fact, the standard of review should default to a de novo

review.

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In its unpublished opinion, the COA acknowledges that statutory interpretation is a de

novo review but implies that the proper standard is clearly erroneous since there was a finding of

fact. (COA Opinion at 2, Appx. 278a) King submits there was never creditable evidence

submitted under Docket # 323387 even though the COA ruled the probate court relied on

affidavits presented but the probate court's opinion clearly reflects it only relied on the unsigned

document entitled an affidavit that merely stated JES and Maggie were married. The probate

court failure to mention the properly executed affidavits by submitted King implies the probate

court did not consider them. (Probate Court Opinion at 2, Appx. 93a)

Under Docket # 329264, King again argued there was no factual evidence submitted of

any type either sworn testimony or affidavits. The probate court relied merely on argument made

by Maggie as the surviving spouse of JES.

The COA reviewed the removal of King as an abuse of discretion. The trial court abuses

its discretion when its outcome falls outside the principled range of outcomes. In re Temple

Estate, 278 Mich App 122, 128; 748 NW2d 265 (2008). However, a lower court making an

error of law has inherently abused its discretion. People v Lukity, 460 Mich 484, 488, 596

NW2d 607 (1999); People v Waterstone, 296 Mich App 121, 132, 818 NW2d 432 (2012);

Kidder v Ptacin, 284 Mich App 166, 169, 771 NW2d 806 (2009). Moreover, a trial court abuses

its discretion when its ruling is not an exercise of reason but rather a ruling based on passion or

bias. Spalding v Spalding, 355 Mich 382, 384–385, 94 NW2d 810 (1959).

By misapplying MCL 700.3611(2) in the removal of King, the probate court would have

abused its discretion. With an abuse of discretion, the standard for the reviewing court must be de

novo.

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The COA used the abuse of discretion standard in determining the removal of King as

personal representative, Maggie standing to file a petition to remove King based on Maggie being

a spouse of JES and the change of venue and disqualification of the assigned probate court. The

COA should have found an abuse of discretion because of the misapplication of probate statutes

and the bias exhibited by the probate court. With abuse of discretion found, the COA should have

performed a de novo review.

B. EXCLUSION AS SURVIVING SPOUSE.

The probate hearing for the determination of whether Maggie is the surviving spouse of

JES was hearing held on July 9, 2014, King filed with the probate court affidavits of Willie C.

Ervin, Victoria Harris, and Hattie Price. (07/09/14 Tr. 4 L13-18, Appx. 55a) All three individual

had a personal relationship with JES, knew, or was involved in his personal affairs, and all three

knew Maggie had not been visible as JES' wife for a minimum of twenty years. (Affidavits,

Appx. 44a)

Maggie's evidence to support her claim that she is the surviving spouse was purportedly an

affidavit of JES. (07/09/14 Tr. 17 L15-25, Appx. 55a) The document was unsigned and not

authenticated. (Unsigned, Appx. 52a) Moreover, Maggie's counsel argued that separation was

not relevant for MCL 700.2801(2)(e) and that the statute requires a divorce, an annulment, or a

filed legal separation. (07/09/14 Tr.18 L 8-10, Appx.55a) Maggie counsel's argument was the

controlling factor under MCL 700.2801(2)(e) is whether the individuals are married at the time of

death if so, the absent spouse shall not be excluded as a surviving spouse. The spouses living

together is not an important factor (07/09/14 Tr. 18 L 11-20, Appx 55a)

The probate court did not consider the affidavits submitted by King (Affidavits, Appx.

44a) and in its opinion said its ruling on is based on an alleged affidavit of JES supposedly filed in

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a civil action in 2010. (Unsigned, Appx. 52a) The probate court acknowledged that Maggie and

JES had been separated since 1976. However, because the unsigned document represented that

JES said, "I married Maggie Lee Erwin in 1968 and she continues to be my spouse to date." The

probate court found "pursuant to the statutory definition, Maggie Erwin is the surviving spouse of

James Erwin Sr." (07/09/14 Tr., Appx. 55a)

The probate court's ruling agreed with Maggie that the controlling factor was not the

separation of the surviving spouse but whether Maggie was married to JES at the time of

death. The probate court's interpretation effectively eliminates MCL 700.2801(2)(e).

The Michigan intestacy laws are found under Article II, Part 1 of the

EPIC, specifically MCL 700.2101 through MCL 700.2114. The provision that is the focal point

of this appeal is MCL 700.2801(2) which excludes certain spouses as surviving spouses and

provides:

"[f]or purposes of part 1 to 4 of this article4 and of section 3203, a surviving spouse does not include any of the following; ********************************************* (e) An individual who did any of the following for 1 year or more before the death of the deceased spouse: (i) Was willfully absent from the decedent spouse. (ii) Deserted the decedent spouse…." Although the probate court found that physical separation was not required under the

statute, the Erwin Court's analysis of "willful absence" as used in the statute required physical

separation but it was not the only factor to be considered. The Erwin Court determined "the

willful absence provision in context with the desertion and willful neglect provisions ... include

some level of intent as well as physical distance." (COA Opinion at 4, Appx. 278a)

4 MCL 700.2101 et seq to MCL 700.2401 et seq.

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The Erwin Court adopted the interpretation of now-repealed MCL 700.290 because of

similar wording with MCL 700.2801(2)(e), and adopted the holding of In re Estate of Harris 151

Mich App 780 (1986), Appx. 287a decided under MCL 700.290. (COA Opinion at 4, Appx.

278a)

In the Harris case, Novel Harris was the surviving husband of his deceased wife,

Wilhelmena Harris. Wilhelmena died after 13 years of marriage and 10 days before her death,

she executed a will leaving her entire estate to the couple's four children. Novel elected to take

against the will and petitioned for a homestead allowance and exempt property, which was all the

personal property of the estate. The personal representative denied Novel's petition based on

MCL 700.290. The probate court determined the only issue was whether Novel was absent for

continuous year or more prior to Wilhelmena's death. The probate court found that MCL 700.290

was not applicable because Novel was not absent from the martial home for one year or more

continuously.

The personal representative appealed the probate court decision and the Court of Appeals

affirmed the decision. The Harris Court analyzed the meaning "absent" and "desert." The Harris

Court had to decide among other things did absence encompass "emotional as well as physical

absence from or physical desertion from the decedent spouse. (Emphasis added)." Id at 785

Appx. 287a. The Harris Court concluded that MCL 700.290 only required to physical separation

and then stated:

“Since all of us are subject to inattentiveness, whether wilful or not, at some time or another, such an interpretation of [emotional] absent would render the statute so broad in application as to put in jeopardy every surviving spouse’s right...." We do not believe that this was the intent of the Legislature. Id at 785, Appx. 287a The Harris Court then determined "[p]hysical presence in the marital home is strong

evidence that the party remains involved in the marriage to some degree and has not

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intentionally given up any rights thereof (emphasis added)." Id at 787, Appx. 287a. The

Harris Court interpreted MCL 700.290 to give a husband and wife at least one year to reconcile.

The Harris Court also found that MCL 700.290 must be read as "showing an intent by the

Legislature that a spouse must intend to give up their rights in a marriage before the rights can be

lost." Id at 786, Appx. 287a. The Harris Court found a spouse chooses to give up rights under a

marriage if the spouse is intentional absent from the martial home for over one year continuously

as stated in the statute. Id at 787, Appx. 287a.

The Erwin Court's opinion was issued on May 10, 2016. The Erwin Court concluded "that

willful absence for the purposes of the EPIC is a factual question that may concern more than

physical proximity." Although the Erwin Court found the Harris decision to be persuasive, it

misapplied the ruling of the case. Specifically, the Erwin Court cited the Harris decision as

support for the proposition that willful absence encompasses "emotional as well as physical

absence from or desertion of the decedent spouse (emphasis added)." (COA Opinion at 4, Appx.

278a) However, the Harris Court specifically excluded emotional separation as a factor5. Harris

at 785, Appx. 287a.

Moreover, the Erwin Court concluded that physical separation is but one piece of evidence

to be considered by a trial court along with emotional intimacy of the spouses. The Erwin Court

ruled that even though Maggie was separated from JES for 35 years after voluntarily moving out,

she was still considered his surviving spouse and not excluded under MCL 700.2801(2)(e). The

Erwin Court added the factor of emotional intimacy but failed to explain how it is to be evaluated.

5 If the Michigan Legislation intended that before a spouse is excluded from the definition of a surviving spouse both physical and emotion separation must be proven, then it could have used "enduring estrangement" as defined in a Pennsylvania statute. Specifically, 20 Pa. Cons.Stat. Ann. § 305(b), defines enduring estrangement to mean “[a] physical and emotional separation from the deceased at the time of death...."

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One could easily conclude that if there is physical separation between spouses than

emotional separation or emotional intimacy is going to be totally lacking or of minor significance.

Two weeks after the Erwin Court's decision, a different COA panel issued a published

conflicting decision in the case of In re Peterson, 415 Mich App 423, 889 NW2d 753 (2016),

Appx. 291a. The Peterson Court involved a dispute over the probate of Lyle Seth Peterson’s

estate. Lyle married Arbutus Peterson in 1959. They acquired property which that was

subsequently developed into their martial home in 1974.

During his marriage, Lyle began having an extramarital affair with Susan Strieter in the

early 1990s. He moved out of the martial home in 2006 into a cabin owed by him and Arbutus.

Ultimately, in 2007, Lyle moved into property he occupied with Strieter until his death.

During the time Lyle was living with Strieter, he continued to visit Arbutus at the martial

home who would cook for him, wash his clothes, and generally take care of him. At his death,

Arbutus had not seen Lyle for at least one year and chose to take a widow's elective share against

a will Lyle had executed.

Lyle's daughter from a previous relationship challenged Arbutus status as a surviving

spouse. The Peterson Court had to decide whether Arbutus was an excluded surviving spouse as

defined in MCL 700.2801(2)(e).

The Peterson Court also analyzed the Harris case as did the Erwin Court and found it was

not controlling precedent because of the repeal of MCL 700.290 (footnote 2) but agreed with the

Harris decision that the phase "willfully absent” refers to physical absence only. Id at 432, Appx.

291a. The Peterson Court further found that the statute refers to "someone who "did" certain acts

including being "willfully absent" or other actions as defined in MCL 700.2801(2(e). Id at 432,

Appx. 291a. The surviving spouse has to be the spouse who left or caused the absence.

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Furthermore, the Peterson Court agreed with the Harris Court that the statute does not

require emotional separation. It stated:

[t]his Court examined the statute [MCL 700.2801(2)(e)], and concluded that it would be absurd to interpret the statute to encompass emotional separation (emphasis added). Id at 431 citing Harris at 785 The Peterson Court found as Harris that emotional separation is not a factor under MCL

700.2801(2(e). On the other hand, the Peterson Court disagreed with both the Erwin Court and

the Harris Court that intent to abandon the marriage must be proven to exclude a surviving spouse

under MCL 700.2801(2)(e). Specifically, the Peterson Court stated:

The Legislature’s use of the term “willfully” established the requisite intent that the individual must have in order to be disqualified as a surviving spouse: the individual must have acted with the specific intent to bring about the particular result addressed in the statute. See In re Napieraj, 304 Mich.App. 742, 745–746, 848 N.W.2d 499 (2014). Specifically, in order for an individual to be “willfully absent” within the meaning of MCL 700.2801(2)(e)(i ), the individual must have done something with the intent to bring about his or her absence from the deceased spouse (emphasis added). Id at 432

King submits the Peterson Court analysis of MCL 700.2801(2)(e) is more in line with the

literal reading of the statute . Intent is found by the action of the individual, i.e., if the individual

left on his/her own volition then intent is by the action of leaving. By leaving a marriage and

staying away for over a year without spousal contact, the spouse intended to abandon the

marriage.

The Erwin Court mistakenly found that Harris required both emotional and physical

separation and a specific finding of intent by the surviving spouse to relinquish her marital status

with the decedent spouse. The Erwin Court's requirement that physical separation is but one

factor to be considered under MCL 700.2801(2)(e) expands the plain meaning of the provision

and effectively eliminates the provision. Under the Erwin Court's interpretation, a spouse can be

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physically absent for 40 years but claim she was still emotionally involved in the marriage with

the decedent spouse. What evidence could prove such emotional involvement? As the Peterson

Court stated "it would be absurd to interpret the statute to encompass emotional separation." Id at

432, Appx. 291a

If the reasoning of Harris is properly applied even under the EPIC, spouses who are

absence from the martial home for over one year continuously from their decedent spouse intents

to give up their marital rights. The probate court and the Erwin Court found that Maggie had been

separated from JES for over thirty years. The undisputed fact that Maggie maintained a separate

domicile for over thirty years is clear evidence that Maggie was not interested in restoring the

marriage with JES. She willfully separated herself by voluntarily moving out of the martial home.

Maggie had to force JES to pay child support by filing a complaint in 1976 to force JES to pay

child support. Maggie did not seek and JES never provided separate spousal support to Maggie.

(Probate Court Opinion, at 2 Appx. 93a)

If the Court adopts the Erwin Court's reasoning it will eliminate physical separation as a

determining factor of MCL 700.2801(2)(e). The statute calls for "willfully absent" or desertion.

The Erwin Court has promulgated a new public policy by finding that if there is a marriage, the

spouse will always be a surviving spouse regardless if the spouse is absent for over one year. A

moving party will never prove there was emotional separation because the only testimony would

come from the surviving spouse most likely. The Erwin Court's interpretation of the statute

eliminates the statute as intended by the Legislature and substitutes its ideology for the State's

jurisprudence requiring only a marriage at the death of a spouse.

To support its position, the Erwin Court created the term "emotional intimacy" with a

limited reference to the record. The Erwin Court wrongly stated that the "continued emotional

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intimacy" was based on the 2010 lawsuit (COA Opinion at 5, Appx. 278a) when the probate

court's opinion states its conclusion was based on argument of counsel. (Probate Court Opinion at

2, Appx. 93a) There was no sworn testimony or documentary evidence admitted in the probate

court that would support the Erwin Court finding. Moreover, the usages of prior pleadings are

limited to the impeachment of a party. Hanik v Wilczynski, 33 Mich App 268 (1971); Selph v

Evanoff, 28 Mich App 201 (1970); Schwartz v Triff, 2 Mich App 379 (1966). The Erwin Court

never addressed why the probate court was able to rely on prior pleadings outside of the scope of

impeachment before affirming the probate court's decision.

The Erwin Court and implies that the probate court did not abuse its discretion by relying

on a lawsuit filed in 20106. (COA Opinion at 5, Appx. 278a) By not properly applying MCL

700.2801(2)(e), the probate court, per se, abused its discretion.

The probate court relied on one statement from the 2010 pleadings that JES in 2010 was

married to Maggie. (Probate Court Opinion, Appx. 93a) Under MCL 700.2801(2)(e), willful

absence or desertion should have been determined not whether the marital status had been

maintained.

6 The probate court only had before it unsigned pleading and an unsigned affidavit. If the probate court relied on these documents, they were not in compliance with MCR 2.119(E)(2). MRE 901 required the document authenticated and that the original provided pursuant to MRE 1002. For a document to constitute a “valid affidavit” it must be: “(1) a written or printed declaration or statement of facts, (2) made voluntarily, and (3) confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Detroit Leasing Co. v City of Detroit, 2006 WL 1009266, Holmes v. Michigan Capital Medical Center, 242 Mich App 703, 711 (2000), citing People v. Sloan, 450 Mich. 160, 177 n. 8, (1995). The Appellee supplemented the record after the Appellant had filed her brief with signed copies of the complaint and affidavit (notarized copy had a different notary). The lawsuit cited was dismissed with prejudice and only stated that Maggie was married to JES. The probate court never addressed the limited purpose of the lawsuit and even after its finding, Maggie still did not have a husband and wife relationship with JES and was absent for over a year.

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By not limiting use of prior pleadings and finding that physical separation is not a

controlling factor, the Erwin Court overturns Grotelueschen v Grotelueschen, 113 Mich.App 395,

398–399 (1982) that held that "[i]f either party in a marriage relationship is unwilling to live

together, then the objects of matrimony have been destroyed.” While the Court's adoption of the

Peterson decision, would sustain the precedent of Grotelueschen.

Although King had requested an evidentiary hearing in probate court to determine the

status of Maggie, ( 07/09/14 Tr. 35 L 1-3, Appx. 55a), the Erwin Court concluded the probate

court did not have to hold such a hearing and could rely on MCR 2.119(E)(2). However, the

probate court only had three valid affidavits before it and they were submitted by King.

C. ENTIRETIES PROPERTY

1. The Tkachik Decision. The Michigan Supreme Court in considering Tkachik, supra, was faced for the first time

the issue of whether a widower who was willingly absent from the marriage during the final 18

months of his wife's life be required to make a contribution to his deceased wife estate. Frank

Mandeville, widower, held properties with the decedent, Janet, as tenants by entirety. Frank spent

long periods away from Janet and was absent during the last 18 months of the Janet’s life. She

maintained the properties by paying all necessary expenses, including mortgage, tax, and

insurance payments. Frank attempted to secure sole possession of the entirety properties and the

personal representative of Janet’s estate, Tkachik, requested contribution from Frank on the

properties for expenses paid during his absence. The lower courts rejected Tkachik’s request for

contribution and she ultimately filed a leave to appeal that the Michigan Supreme Court granted.

The Supreme Court found that Frank, as an owner of entirety property, by operation of law

became the sole owner of the property at Janet's death.

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Although there was no precedent under Michigan law for a contribution between co-

tenants of property held as tenants by the entirety, the Court found persuasive the case law from

other jurisdictions. After analyzing cases from several jurisdictions, the Court adopted the

proposition for contribution between co-tenants of entirety property and noted:

"From the actual language of these authorities, it seems that each of these cases stands clearly for the proposition that “a tenant by the entireties is entitled to contribution when he or she makes a payment, after the parties discontinue living together as husband and wife, which preserved the property and, therefore, accrued to the benefit of the co-tenant.” Crawford, 293 Md. at 313, 443 A.2d 599 (emphasis added)" Id at 61

A core factor for a contribution between the estate of the decedent spouse and the

surviving spouse on the transfer of entirety property by operation of law was whether the spouses

had discontinued living together as husband and wife. Id at 61, 62, Appx. 297a. The Court found

that Frank and Janet had not lived as husband and wife for the final 18 months of Janet's life.

Another core factor the Court used was whether the deceased co-tenant maintained the

entirety property without the assistance of the separated spouse. The Court ruled that Janet solely

maintained the properties during the period of Frank's’ absence.

A final core factor was whether the absent spouse "was deemed a non-surviving spouse

under MCL 700.2801(2)(e)(i)." Id at 57, Appx. 297a. Frank was excluded as a surviving spouse

of Janet in the probate proceedings.

After finding the core factors present, the Court determined it has equity authority to make

equitable decisions on marital property. See Horner v McNamara, 249 Mich App 177, 186

(2002). The Court further noted other factors it found that made up the special circumstances for

it to order contribution under its equity authority such as Frank's failure to communicate with

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Janet before her death, Janet attempt to disinherit Frank, and an attempt to transfer Frank's interest

in the entirety property. Id at 57, Appx. 297a

The Supreme Court found that Frank was unjustly enriched due his absence and it would

be equitable for Frank to contribute for expenses incurred in maintaining the properties during his

absence.

2. The Tkachik Decision Applied to Erwin Estate.

Tkachik is the” blueprint” for this matter particularly the core factors. The core factors

from Tkachik are present in the instant matter. Maggie and JES have not lived together as

husband and wife for 36 years at the time of his death. Maggie was the spouse that moved out of

the martial home in 1976 and did not care or communicate with JES up to the time of his death.

(Affidavits, Appx. 44a)

JES solely maintained the martial property. There is no evidence that Maggie, over the

36 years of separation, ever contributed to the maintenance of the martial home. There is no

evidence that Maggie assisted on the maintenance of the entirety property because JES paid for

the upkeep of the property.

A final core factor that is the linchpin of whether a contribution is warranted on entirety

property is whether the absence spouse is found to be a non-surviving spouse under MCL

700.2801(2)(e)(i). King submits that if a spouse is not excluded as a surviving spouse then an

estate does not have a basis to seek contribution on entirety property. Although the Court

enumerated others factors that made up the basis for ordering contribution in Tkachik, those

factors would not have sustained the Court's equity ruling for contribution if Frank was not

excluded from Janet's estate as the surviving spouse.

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The Court defined "unjust enrichment as the unjust retention of money or benefits which

in justice and equity belong to another. Id at 47-48, Appx. 297a. If Frank was not excluded as the

surviving spouse of the estate, he would have received much greater benefits by taking his

statutory elective share, against the decedent's will. The Court would not have found unjust

enrichment.

The COA in finding that Maggie did not have to make a contribution to the JES Estate did

not analyze the core factors but focused on the minor factors. The COA's emphasis was on

Maggie receiving JES' work insurance policy and he did not try to disinherit Maggie or try to

transfer the entirety property. These are minor factors and not controlling in this matter.

Maggie’s extended absence of over 36 years is a factor which is just as significant as or

more significant than a decedent spouse attempts to disinherit a separated spouse or an attempt to

transfer of the entirety property. Maggie would be unjustly enriched and equity requires that she

should contribute to the Estate for the maintenance of the Douglass property. The probate court's

opinion stated," Personal Representative relies on the case of Tkachik v Mandeville, 287 [sic]

Mich 38 (2010)" and then stated "in the Tkachik case, the surviving spouse had willfully

abandoned the other spouse." The opinion then stated:

"In the case at hand, Maggie Erwin and James Erwin Sr. chose a separated lifestyle. The arguments presented indicated that Maggie Erwin and James Erwin Sr. still had contact and an on-going relationship during their separated years, with Maggie Erwin even providing care for James Erwin Sr. at some point in time. There was no willful abandonment within the Erwin matter, by either party. Thus, the court determines that Maggie Erwin shall not be required to make contributions to the estate as it relates to the Douglass Street property (emphasis added)" (Probate Court Opinion, at 2 Appx. 93a)

The probate court found the Tkachik case distinguishable because there was no willful

abandonment. However, as the probate court found, JES and Maggie were separated and

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maintained separate households for over thirty years before his death. The probate court had no

evidence to rely on but the argument put forward by Maggie's counsel and Nash's unsworn

statements that Maggie had actually cared for JES or maintained "continued emotional intimacy."

An attorney's statements and arguments are not evidence. Cliff v Michael E. Heath,

D.D.S., 2011 WL 14475, People v Mayhew, 236 Mich App 112,123, n5 (1999) Furthermore,

MRE 603 requires that any person who testifies in court be administered an oath to testify

truthfully. The Maggie's argument of no abandonment is just that, argument and not evidence.

The probate court ignored sworn statements from third party affidavits that Maggie had abandon

JES and placed the basis of its opinion on Maggie attorney's argument. The COA concurred with

the probate court's erroneously finding.

The COA when applying the Tkachik decision found there was evidence that JES provided

Maggie with financial support. (COA Opinion at 6, Appx. 278a) The COA is wrong. No

evidence was ever submitted or testimony given that JES was providing financial support to

Maggie.

The COA has expanded the holding of Tkachik to require some proof that decedent had

planned to disinherit the absence spouse. This factor, as noted above, is a minor factor and not

significant when determining if a contribution should be made on the death of a co-tenant of

entirety property when the survivor has been absent for a substantial period of time. The COA

never addressed the central holding from Tkachik issue, whether the absence spouse is unjustly

enriched if she/he does not have to make a contribution on transfer of the entireties property.

If Court finds that Maggie is an excluded spouse under MCL 700.2801(2)(e), then

Maggie should be ordered to make a contribution to the JES' Estate for the entirety property.

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D. REMOVAL OF PERSONAL REPRESENTATIVE

1. Standing as Interested Person.

The COA found that Maggie is a spouse under MCL 700.1105 so she could file a petition

to remove King as personal representative pursuant to MCL 700.3611(1).

MCL.700.1105(c) defines a spouse as an interested person. However, MCL 700.1102

defines the applicability of definitions under MCL 700.1105. Specifically, the provision provides:

"[T]he definitions contained in this part apply throughout this act unless the context requires otherwise or unless a term defined elsewhere in this act is applicable to a specific article, part, or section (emphasis added)."

In the instant matter, MCL 700.1105(c) is not applicable because there is a more specific

definition of a spouse when a decedent spouse dies intestate. MCL 700.2801(2) specifically

excludes from the definition of a spouse, a spouse that deserted the decedent or was willfully

absent from the marriage for one year before the decedent's death.

The COA interpretation and reliance on MCL 700.1105(c) would create a significant

dichotomy. There is a very strong possibility a spouse such as Maggie can be excluded as a

surviving spouse for intestacy law purposes but have the ability to dictate the administration of the

decedent spouse's intestate estate. If you are not the surviving spouse of the decedent, than you

should not be an interested person of the decedent's estate unless you are a bona fide creditor of

the estate.

2. Conditions for Removal

The COA reviews a removal of a personal representative for an abuse of discretion. In re

Temple Martial Trust, 278 Mich App 122, 128 (2008). An abuse of discretion occurs when the

probate court chooses an outcome outside the range of reasonable and principled outcomes. Id at

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128. However, if the lower court's ruling involves the interpretation and application of court rules

and statutes, the Court reviews the ruling de novo. Huntington Nat Bank v. Ristich, 292

Mich.App 376, 383 (2011).

MCL 700.3611(1) provides "[A]n interested person may petition for removal of a

personal representative for cause at any time (emphasis added)." MCR 5.125 defines interested

persons. The probate court determined that Maggie was the surviving spouse of JES and thus,

was an interested person who could seek removal of King as personal representative. (05/06/15

Tr. 25-26, Appx. 164a; 07/06/15 Tr. 26, Appx. 221a) The probate court further determined that

the stay of MCL 600.867 only applied to Maggie when it came to distributions from the Estate.

(05/06/15 Tr. 26-28, Appx. 164a) The COA also would not grant a stay which allowed Maggie to

pursue the removal of King.

The probate court reversed its position in the hearing held on July 6, 2015 and ruled that

Maggie should be stayed from acting as the surviving spouse of JES. (07/06/15 Tr. 25, Appx.

221a) This ruling, however, was after the probate court allowed Maggie to remove King as the

personal representative.

During the May 18, 2015 hearing, the probate court did another reversal when before the

completion of the civil action and without any other support it determined that Maggie paid for

JES' funeral and she was an interested person because of the claim. (05/18/15 Tr. 21, Appx. 197a)

This decision was another example of irregular action taken by the probate court.

The COA determined Maggie was an interested person because she was a spouse as

defined under MCL 700.1105(c). The COA found it was irrelevant whether Maggie could inherit

as a surviving spouse under the Michigan intestacy laws. (COA Opinion at 7, n3, Appx. 278a)

The jurisprudence of the State should not allow a person who has no right to inherit from an estate

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determine who represents an estate and how an estate is administrated. The COA opens the door

for such a situation.

To remove a personal representative, MCL 700.3611(2) provides:

[T]he court may remove a personal representative under any of the following circumstances: (a) Removal is in the best interests of the estate. (b) It is shown that the personal representative or the person who sought the personal representative’s appointment intentionally misrepresented material facts in a proceeding leading to the appointment. (c) The personal representative did any of the following: (i) Disregarded a court order. (ii) Became incapable of discharging the duties of office. (iii) Mismanaged the estate. (iv) Failed to perform a duty pertaining to the office.

The probate court has never conducted an evidentiary hearing to gather evidence to

support allegations made against King. Moreover, MCR 2.119(E)(2) was not applicable because

the probate court did not base its rulings on affidavits. From the probate court's ruling, it is

reasonable to say the probate court never considered King's Response. (Response to Removal,

Appx. 106a)

The COA gave very little weight to the unusual circumstances on how King was removed

even though it was detailed in a motion for a stay and in King's Appellant's Brief. King was never

given the opportunity to defend the allegations made against her.

3. Basis of King's Removal.

King has never disregarded a court order or mismanaged the Estate. Absence evidence of

such wrongdoing, King's removal was improper. See In re Duane v. Baldwin Trust 274 Mich

App 387, (2007) Moreover, there is no evidence that King has harassed or mistreated Maggie or

any of the heirs.

The record from the probate court will clearly shows that neither King nor her counsel has

had direct contact with Maggie and/or the complaining heirs. King has filed two motions to

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compel production and the probate court granted both motions. However, the probate court has

steadfastly refused to order Nash, BJE, or Oakes to turnover assets to King or order sanctions

when requested.

For example, King had requested accounting of bank accounts because Nash had moved

bank accounts of JES to Kansas and the probate court took no action when requested to do so.

(07/09/14 Tr. Appx. 55a). A second example is when King was provided an email that

demonstrated Nash attempted to get the proceeds from a lawsuit settlement paid directly to

Maggie. When Nash's attempt failed, she sent the email to LFE. Nash had the email in her

possession since January but did not provide it to King until months later in March. (Nash Email,

Appx.326a) When presented to the probate court as evidence that Nash was concealing assets, the

court again took no action.

Outside of the harassment argument, Maggie sought King's removal because of the failure

to file an inventory and accounting. The probate court was aware that King only had access to

nominal assets unless the Nash, BJE ,and Oakes cooperated and disclosed assets. Instead of

ordering compliance, the probate court allowed Maggie, Nash, and Oakes to file petitions seeking

the removal King as personal representative. Is it not suspicious that those same individuals, a

minority of the Estate's interested persons, who King attempted to question about concealed assets

are the same individuals who sought King's removal and wanted the Estate closed?

King had filed an interim inventory with the intent to amend it when King recovered

sufficient assets to determine to true value of the Estate. The probate court used the alleged non-

filing of inventory, no accounting, and no schedule of costs incurred (05/18/15 Tr. 9, 14, Appx.

197a) as a basis for King's removal. However, since the JES Estate is an informal unsupervised

estate, the personal representative is not required to file an accounting with the probate court.

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Moreover, since the probate court removed King and replaced her with an individual

"handpicked" by Oakes and Bernstein, the only asset reported by the successor personal

representative was provided by King and LFE.

Although King filed zero asset Inventory Form to be in compliance with MCL

700.3706(2); MCR 5.307(A), if the probate court determined King was not properly administering

the Estate, MCR 5.203 provided the Follow-Up Procedures which did not require removal.

Moreover, MCR 5.203 would only be applicable if King failed to comply with MCL 700.3951(1),

Filing of Notice of Continued Administration. King timely filed the Notice of Continued

Administration on June 9, 2014 and June 12, 2015. (Continuation Forms, Appx. 328a) There is

no allegation that King has misappropriated funds because King and her counsel have paid all the

expenses of the Estate out of pocket. However, the probate court removed King because she

failed to file an accounting disclosing how much of her money she spent on the Estate. This

action is not in the best interest of the Estate.

MCL 700.3705(1) provides "[a] personal representative is under a duty to settle and

distribute the decedent's estate ...as expeditiously and efficiently as is consistent with the best

interests of the estate." The best interest of the estate is the best interest of all the heirs and not 1

or 2 or a minority. The best interest for all the heirs is to try to undercover all the significant

assets not the nominal ones that are "the low hanging fruit" as offered by Nash, BJE, and Oakes.

King was attempting to undercover all assets for the Estate so all the heirs could share instead of a

vocal 37. The only interested person complaining of an inventory, accounting and seeking to

close the Estate is Oakes who King attempted to question about concealed assets.

7 Maggie's attorney disclosed that there was mutual fund in the name of JES of $5,000. The fund was never transferred to King. Holihan Letter Appx. 344a

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The removal of King as personal representative can only be for cause. In re Kramek

Estate, 268 Mich App 565,710 NW2d 753 (2005). The procedure prescribed in the court rules for

removal of a personal representative of an estate applies only to situations where the personal

representative has done or has failed to do something that is not capable of correction. Matter of

Estate of Sumpter, 166 Mich. App. 48, 419 N.W.2d 765 (1988) When the cause for removal

cannot be corrected, then the procedures for the removal of the personal representative are

applicable. Moreover, In re Kramek Estate, supra, the court found that it was not in the best

interest of the estate that the personal representative be removed because of bickering among heirs

and the potential conflict of interests over a settlement agreement and concern for litigation costs.

The allegations that King failed to file an inventory and provide an accounting should not

be a basis for her removal when King has not collected all Estate assets and had filed the required

Continuation Forms. The filing of an inventory and accounting is all that was needed to correct

an alleged cause. Matter of Estate of Sumpter, supra. Moreover, if any interested persons were

really concerned with an inventory and accounting, those persons could have made a request

pursuant to MCL 700.3415, Appx.334a.

In an unsupervised estate, the request under MCL 700.3415 would have been a practical

resolution. Moreover, in an informal unsupervised estate, as mentioned above, there is no

requirement that King must file an accounting with the probate court. See John H. Martin,

Improving Michigan Estate Settlement, 29 T.M. Cooley L. Rev. 1, 21-22 (2012)

The COA found support for the removal of King on the fact that Oakes did not

receive an accounting. Pursuant to MCL 700.3703(4) an annual accounting is based on receipt

and disbursements from "the estate." King has not spent Estate funds and has only collected

minimal funds. King admits that an accounting is required to be provided interested persons, but

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due to the nominal amounts found and the only demand coming from Oakes, King perceived

Oakes' request as an irritant. The majority of the heirs had approved oral progress reports and the

majority of the heirs did not join the petition for King's removal since they supported her action.

Moreover, the COA did not understand the cynicism behind the request from Oakes and

the response by LFE in behalf of King. Oakes had not complied with King's request for

information and when she did she was less than truthful. For example, Oakes provided an

affidavit to King that she knew nothing about the affairs of her father, JES and "to her knowledge"

Maggie paid all the funeral and burial expense for JES. Affidavit of Oakes, Appx 335a The same

Maggie who has suffered from dementia since 2010 or prior, who filed a sworn claim alleging to

have paid cash for JES funeral expenses. Funeral Proof of Claim, Appx 96a) This claim was

also allegedly verified by Maggie's attorney who signed under penalty of perjury. But King was

prevented by probate court rulings from pursuing verification of the claim which she believed was

fabricated.

Oakes' affidavit states "to her knowledge" Maggie paid the funeral expense for JES but

neglects to mention her knowledge comes from acting in behalf of Maggie. Oakes' affidavit was

intentionally meant to mislead King. Moreover, Maggie's attorney also attempted to mislead

King because she never disclosed the power. King protested to the probate court about the

concealment. The concealment was only disclosed when a protective order was sought in the

civil action to protect Maggie from testifying and exposing her Maggie's mental capacity and her

lack of knowledge about the funeral payment.

There is no question that Oakes was behind the petition filed in Maggie' name to remove

King as personal representative. This is the same Oakes that the judges in Saginaw Probate Court

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who supposedly disqualified themselves8 because of their personal relation with her as a state

representative while continuing to orchestrate the proceedings in Tuscola County. This is the

same Oakes who owes $5,000 to the Estate, denied owing the money in her affidavit even though

there was a note in the safe of JES that mysteriously disappeared. (Affidavits of King and

Stanley, Appx 30 338a). Between the time the note was first witnessed until its disappearance,

Nash and BJE are the only persons who had access to the safe.

The COA states that the record was "replete with familial conflict9." (COA Opinion at 8,

Appx. 278a) King disputes the COA's statement because there only been a conflict from a small

minority of heirs seeking to close the Estate to conceal undisclosed assets. What happen to the

$5,000 mutual fund? Holihan Letter, Appx 344a.

The probate court not only removed King but awarded sanctions against King and LFE for

actual attorney fees to both Miller and Bernstein for " the repeated filing of pleadings that do not

comport to either the court rules, the statutes or law in the State of Michigan." (05/18/15 Tr. 20,

Appx. 197a) The probate court never identified the violations that would justify the award of

actual attorney fees. In addition, the probate court ruled that neither King nor LFE can collect any

fees from the estate even though they had financed the administration of the Estate (05/18/15 Tr.

8 King has provided documentation, Miller Letter, Appx. 160a, that Oakes attorney, Miller, had ex parte communication with the residing probate court judge in Tuscola County and with the supposedly disqualified Saginaw County Probate Court judge. During oral argument before the COA, LFE again advised the court that the Saginaw County was coordinating the hearing in Tuscola County that included the Saginaw County Register having constant communication with the supposedly disqualified judge regarding the proceedings of the case. The COA chose to take no action. 9 The COA referenced to emails from Oakes attorney Miller was a request for an accounting but the Court of Appeals failed to disclose that (COA Opinion at 2, Appx. 278a) Miller refused to either have Oakes pay the money owed the Estate provides proof that she repaid the loans. LFE Letter, Appx 343a. King provided affidavits that loan document had disappeared from the home safe and there was no proof of payment. (Affidavits of King and Stanley, Appx 30 338a),

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21-22, Appx. 197a) The probate court's ruling punishes King and LFE twice for what amounted

to failing to file an accounting when there were only nominal assets to report.

The probate court subsequently awarded Miller and Oakes approximately $13,000 in

attorney fees. The probate court at this time has not determined the amount of attorney fees it

would award to Bernstein. Moreover, before a judgment could be entered, the probate court

allowed Oakes to file garnishments on the bank accounts of King and LFE when a stay should

have been in effect.

Approximately ten days after King and LFE had filed a motion for a rehearing challenging

the award of actual attorney fees and before a scheduled December 9, 2015 hearing, Miller and

Oakes signed Writs of Garnishments on November 17, 2015 and had them approved by the

probate court even though the probate court had scheduled the December 9, 2015 hearing. Miller

and Oakes filed and obtained the writs eleven days after it was aware of the rehearing request

filed on November 6, 2015 which was in violation of the MCR 2.614(A)(1) stay. Moreover, the

probate court had a duty under MCR 3.101(D) to verify the accuracy of the request for Writs of

Garnishment and it failed to do so. The obvious error on the garnishments was there was never a

judgment entered on September 4, 2015. (Garnishments, Appx.347a.) As a result of this action,

the bank accounts of King and LFE were seized and released to Miller and Oakes.

An Application for Delayed Leave to Appeal has been filed with the Saginaw County

Circuit Court on the improper garnishment. However, to date, all the judges in the Saginaw

County Circuit Court have disqualified themselves. (Order of Disqualification, Appx. 355a)

E. VENUE AND DISQUALIFICATION

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The COA ruled King's appeal on the issues of venue and disqualification were not

properly before it because they did not result from a final probate court order. The appeal was

considered as an application for leave to appeal which was granted.

The probate court, however, stated the order on venue and disqualification was final.

(05/06/15 Tr. 28, Appx. 164a). MCL 600.861 is a statutory authority that allows a party to a

probate proceedings to file an appeal directly with the Court of Appeals when a" final order

affecting the rights or interests of any interested person in an estate or trust."

1. Venue

The court rule for change of venue is MCR 5.128(A) and lists the reasons for change. It

provides:

"On petition by an interested person or on the court’s own initiative, the venue of a proceeding may be changed to another county by court order for the convenience of the parties and witnesses, for convenience of the attorneys, or if an impartial trial cannot be had in the county where the action is pending (emphasis added)."

MCR 5.128 is the probate version of MCR 2.222 except considerably relaxed. An

interested party only has to demonstrate the inconvenience of the present venue.

MCL 700.3201 provides: "(1) Venue for the first informal or formal testacy or appointment proceeding after a decedent’s death is 1 of the following: (a) The county where the decedent was domiciled at the time of death. (b) If the decedent was not domiciled in this state, in a county where property of the decedent was located at the time of death. *************************** (4) On motion by a party or on the court’s own initiative, a proceeding’s venue may be changed to another county by court order for the convenience of the parties and witnesses, for the attorneys’ convenience, or if an impartial trial cannot be had in the county where the action is pending. (emphasis added)" Under MCL 700.3201, “domicile” is where his or her “home” was at the time of death. Kleinert

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v. Lefkowitz, 271 Mich. 79, 259 N.W. 871 (1935). If the decedent is not domiciled in the state,

then venue is proper in the county where decedent had property at the time of his death.

JES domicile at the time of death was Kansas since he was not able to return to Saginaw.

He did not own property at the time of his death because the only property in his name passed by

operation of law to Maggie.

The probate court erred in not allowing a change of venue for the convenience of the

majority of the interested persons not just LFE. Under MCL 700.3201, JES Estate is not required

to be in Saginaw County although it is being heard in Tuscola County. Pursuant to MCL

700.3201(4), a change of venue can be made for the convenience of the interested persons. Six of

JES' heirs requested the change of venue. Proof was provided that it would be more convenient

for the heirs to commute to Genesee County instead of Tuscola County. Petition to Change,

Appx. 357a

King had requested a change of venue because of the number of irregularities that had

arisen since the matter has been in Tuscola County that has been documented in this appeal. Most

importantly, one of the disqualified Saginaw probate judges should not be directing the

proceeding in Tuscola County behind closed doors. Moreover, the majority of the heirs have

experienced the general hostility from the Tuscola court and staff.

The probate court denied King's Petition and Order to Change Venue not because it was

for the convenience of the majority of interested persons but because the probate court determined

it would only benefit LFE. (05/06/15 Tr. 23, Appx. 164a) The probate court applied the wrong

standard and never determined whether it would be convenient for all the other interested persons.

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The COA ruled that venue should not be changed because of the time the petition was

filed. However, MCR 5.128 and does not have a time perimeter and is a more liberal version of

MCR 2.222. Likewise, MCL 700.3201(4) does not have a time perimeter.

The probate court denied the change because King agreed to have the case heard in

Tuscola County. But, the consent was not given with the understanding that Saginaw would be

controlling the proceedings. Both the probate court and the COA overlooked the majority of the

interested persons wanted the venue changed and they had never stipulate to appear in Tuscola

County10.

2. Disqualification of Judge

MCR 2.003 outlines the procedure and grounds for disqualification of a Michigan judge.

MCR 2.003(C) requires disqualification in order to protect a litigant's right to an impartial

decision maker. The rule provides a non-exhaustive list of various grounds for disqualification,

“including but not limited to instances in which: (1) [t]he judge is personally biased or prejudiced

for or against a party or attorney.”

Under the circumstances, even a judge's own subjective belief that he or she may harbor

no actual bias that would preclude the court from presiding fairly and impartially in the matter is

insufficient to justify the judge's continued participation, particularly when viewed in light of the

judge's further obligation, under the Michigan Code of Judicial Conduct, Canon 2(A), which

states, in pertinent part, that:

"Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety."

10 A change of venue was sought because it was apparent that Saginaw County was controlling the proceedings in Tuscola County. Maggie had obtained a restraining order on May 5, 2016 and in that order before the hearing on May 6 2015, denied the change of venue (Retraining order, Appx. 161a.).

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As recognized by the United States Supreme Court in the case of In Re Murchison, 349

U.S. 133 (1955), a judge whose impartiality is questioned by a litigant may well be the last person

to perceive actual bias against that litigant. As such, a finding of actual bias is not necessary in

order to require disqualification when the circumstances disclosed by the record would give rise

to serious doubts, in the minds of objective and disinterested observers, about the judge's ability

to remain wholly impartial. As noted by the Court in Murchison:

"A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. However, our system of law has always endeavored to prevent even the possibility of unfairness. To this end, no man can be a judge in his own cage and no man is permitted to try cases in which he has an interest in the outcome that interest cannot be defined with precision. Circumstances and relationships must be considered. ...But to perform its high function in the best way “justice must satisfy the appearance of justice.” Murchison, supra, at 136. [Citations omitted] (Emphasis added)."

Thus, even where actual bias or prejudice is not affirmatively shown or established with

certainty, the Michigan Supreme Court has stated, “[W]e acknowledge there may be situations in

which the appearance of impropriety on the part of a judge... is so strong as to rise to the level of

a due process violation.” Cain v. Dep't of Corrections, 451 Mich 470 , 513 (1996). Further, the

constitutional right to due process requires disqualification where “experience teaches that the

probability of actual bias on the part of the judge or decision maker is too high to be

constitutionally tolerable.” Cain, supra, at p. 498, quoting Crampton v. Dep't of State, 395 Mich

347 (1975). See also, Withrow v Larkin, 421 U.S. 35, 47 (1975).

Intent, scienter, or prior knowledge of the facts giving rise to the appearance of

impropriety is not necessary in order to warrant a judge's disqualification. Thus, in Liljeberg v.

Health Services Acquisition Corp., 486 U.S. 847, 100 L. Ed. 2d 855 (1988), the Court noted:

“... advancement of the purpose of the provision -- to promote public confidence in the integrity of the judicial process --does not depend upon whether or not the judge actually

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knew of facts creating an appearance of impropriety, so long as the public might reasonably believe that he or she knew.” Liljeberg, supra, at 859-60.

The first hearing in the probate court was held on January 22, 2014. For starts, the probate

court allowed then Oakes' attorney to change the hearing date on King's Motion to Compel

without notice to King and/or LFE. The scheduled hearing was based on the falsification of

LFE's signature. No one from the Tuscola County probate court staff attempted to contact King

or her counsel, LFE. (Erwin Affidavit, Appx. 50a)

Since that hearing, the probate court has consistently ruled in favor of the Nash, BJE, and

Oakes without an evidentiary hearing or the submission of any substantive evidence. The probate

court has allowed Maggie to start a civil action on a funeral claim, which Maggie initially paid

with cash but later changed to checks that did not correspondence to the claim amount. In

addition, the probate court has allowed Maggie's attorney, Bernstein, to unitary change a hearing

date for a motion filed by King and recently, signed on May 5, an ex parte restraining order one

day before King and LFE appeared before the Court on May 6, 2015. Moreover, the restraining

order established a hearing date that King and LFE only learned of just before the hearing from

another pleading. Neither the probate court nor Bernstein notified King and LFE that a

restraining order was outstanding against them and why.

During the May 6, 2015, LFE advised the Court he had a conflict with the hearing date

set by Bernstein for May 18, 2015. LFE provided counsel proof of his conflict to opposing

counsels. Although the conflict was cleared on May 15, 2015, LFE so informed opposing counsel

but King was unavailable. Nonetheless, Bernstein appeared for the hearing before the probate

court. LFE received neither notification from Bernstein nor the probate court regarding the

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hearing. The probate court entered an order in flavor of Bernstein unopposed removing King as

personal representative and for sanctions awarding actual attorney fees11.

Contrast the treatment received by Bernstein. (Erwin Affidavit, Appx. 345a). On June 10,

2015, the probate court had scheduled a final pretrial conference for 10:30 am. LFE drove from

Detroit, some 2/12 hours, to Caro Michigan to attend the conference.

Bernstein did not appear for the conference. The probate court ordered LFE to wait while

it located her. After some time, Bernstein was located and allowed to participate by telephone.

After the conference, the probate court told LFE for the first time he could also participate

by telephone but this was only after the probate court had sanctioned King and LFE when they

failed to appear at the May 18, 2017 hearing. The probate court had not made this option

available to LFE as stated by the probate court in LFE's absence during the May 18, 2015 hearing.

(05/18/15 Tr. 23, Appx. 197a)

During the July 6, 2015 hearing, LFE explained how he participated in a telephone

conference and it was not because the court called him, he called the court. (07/06/15 Tr. 12-13,

Appx. 221a). The probate court made the statement that LFE was allowed to appear as a courtesy

but that was not factually correct. (07/06/15 Tr. 29, Appx. 221a)

The probate court did not attempt to reach LFE on May 18, 2015 to determine if he could

participate but entered an order removing King as the estate personal representative as a default

for not appearing. Pursuant to MCR 2.401(G)(1), the failure of an attorney or party to appear at a

pretrial conference constituted a default under MCR 2.603 or a ground for dismissal under MCR

2.504(B). If the probate court was dispensing equal treatment then the civil action complaint of

Maggie should have been dismissed when Bernstein failed to appear.

11 After having two motions to compel granted and discovery orders presented and not honored, King filed a motion for sanctions. The probate court would not grant.

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If the probate court was fair and balanced, it should have called LFE on May 18, 2015 to

determine why he and King were not present at the hearing. It chose not to call and held the

hearing, and allowed the entry a default order under the 7-day rule and then rejected the filing of

the objections after the order was received under questionable circumstances.

The probate court has allowed opposing attorneys in this matter to disregard the stay of

MCR 2.614 and stay of MCL 600.867(1). For example, Miller filed a Motion for the Payment of

Attorney Fees on July 21, 2015 before the final order awarding attorney fees as sanctions was

entered on August 26, 2015. (08/13/15 Tr. 10-20) King filed for a rehearing in a timely fashion

on the removal order that included the award of attorney fee sanctions the order should not have

been effective until August 26, 2015. King filed a Claim of Appeal on September 15, 2015 in

which the award of attorney fees were challenged.

An order was entered on October 16, 2015 for the payment of attorney fees to Oakes and a

motion for rehearing and stay was filed on or about November 6, 2015 with a hearing date set for

December 9, 2015. A stay should have been in effect but the probate court allowed Writs of

Garnishments to be filed not on a judgment but on an order that should have been stayed.

Garnishments, Appx. 347a Moreover, Miller falsely stated that a judgment was obtained on

September 4, 2015 when a judgment had not been entered in the matter at all and Miller had a

pending motion before the COA to dismiss part of King's appeal in regards to attorney fees.

Even though the case law establishes that unfavorable rulings alone is not enough to

disqualify a judge, considering the rulings made in this matter without evidential support and the

improper involvement of Saginaw County, the appearance of bias cries for a change. King and

the majority of the interested persons have no chance of getting a fair hearing without a change.

To date, the, probate court has never sanctioned or ordered heirs to turnover assets.

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The COA affirmed the probate court but found bias was not demonstrated because the

probate court only called Bernstein once and when Oakes attorney, Miller, did not appear at a

hearing and he also did not get a call from the probate court. The treatment of LFE does not come

close to the treatment received by Bernstein and Miller.

Mr. Miller did not appear at the hearing on May 6, 2015 on King's Petition for Change of

Venue. The probate court did not call Miller but at the hearing that King and LFE were not

present, the probate court noted that Bernstein covered for Miller12. (05/18/15 Tr. 17, Appx.

197a) What was the consequence of Miller's failure to appear? There was no consequence to

Miller since the probate court awarded him actual attorney fees of approximately $13,000 against

LFE and King.

Ms. Bernstein did not appear at a pretrial conference on June 10, 2015. The probate court

called her so nothing happen to her client's claim and she was able to participate in the conference

with no penalty.

Even though the COA believes all the parties and attorneys were treated without

bias. As noted earlier, Miller had ex parte communication with the probate court and with the

disqualified judge. Furthermore, King's counsel, LFE, personal knowledge that Tuscola County

Register had constant communication with the Saginaw County Register. After those

communications, the Saginaw County Register would then hold meetings and discussions with the

disqualified judge. The obvious conclusion is that Saginaw County is directing the proceedings in

Tuscola County.

12 Miller supposedly represents Oakes individually and Bernstein supposedly represents Maggie. However, Oakes holds a power of attorney for Maggie so Bernstein works directly with Oakes because Maggie lacks the mental capacity to act on her own.

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Normally, the issuance of a restraining order is an extraordinary process. However, in an

estate that allegedly has little to no assets, the probate court issued a restraining order because

King filed a petition to change venue and a motion to stay the proceedings with the COA. These

filings were not frivolous and definitely not the type of actions justifying the issuance of a

restraining order.

If all the factors are considered, the probate court has been bias. Moreover, the oversight

by the disqualified judge hints that the proceedings are balanced toward Oakes. If our

jurisprudence is to have the appearance of impartiality, a change of venue and disqualification of

the probate judge is warranted.

CONCLUSION

For all the foregoing reasons, Appellant King most respectfully requests the Court to

reverse the rulings of the Court of Appeals.

Respectfully submitted,

COMMERCIAL LAW CORPORATION, P.C. By: _/s/ L Fallasha Erwin_____ L. Fallasha Erwin (P27018) Attorney for Beatrice King, Appellant 220 Bagley, Suite 1010 Detroit, MI 48226 ferwin@sbcglobal.net (313) 964-2502 (phone) Date: November 27, 2017 (313) 964-2929 (fax)

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