Annulment and elderly parents?

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IF YOUR ELDERLY PARENT GETS MARRIED TO A GOLD DIGGER WHO DOES NOT CARE FOR YOUR PARENT AND IS ONLY OUT FOR THEIR MONEY WHAT CAN YOU DO?

Issues: Action for annulment of marriage; MCL 552.12; MCR 2.202(A)(1); Tiedman v. Tiedman; MCL 552.1, .2, and .3; Fraud to support an annulment; Stegienko v. Stegienko; Yanoff v. Yanoff; Applicability of Romatz v. Romatz
Court: Michigan Court of Appeals (Unpublished) 11/20/2007
Case Name: Summers, Elson v Kimberely
e-Journal Number: 37694
Wayne County Circuit Court
LC NO 06-612426-DO

Judge(s): Per Curiam – Servitto, Sawyer, and Murray

For a marriage to be valid in Michigan the parties must:
-not be married already,
-not be of the same sex,
-not be too closely related,
-be of marriageable age,
-be capable of contracting,
-enter the marriage without fraud or duress,

A strong presumption exists favoring MARRIAGE’S VALIDITY. Once the celebration of a MARRIAGE is shown, the contract of MARRIAGE, the capacity of the parties, and everything necessary to the validity of the MARRIAGE are presumed. [Michigan Family Law Bench Book MFLBB 2.7]

An annulment is a judicial determination that a valid MARRIAGE did not occur.

An annulment dissolves two categories of MARRIAGE:
*MARRIAGE void ad inito- void from the beginning (although not favored, can be attacked after death of one or both parties)[note this case below defines this]
* Voidable marriage- valid until a party brings an action to annul (must be brought while both parties are living)

Either party may file a petition or complaint for annulment in the family division of the circuit court in the county where at least one party resides. There are no length of residence requirements.

Children of an annulled MARRIAGE:

-the children are legitimate ( for nonage, incompetence, and bigamy, the children are the legitimate offspring of the party capable of contracting MARRIAGE)

-the court provides for the custody and support of the children of the annulled MARRIAGE, regardless of grounds ( and while the annulment is pending)
Property awards- same principals as in a divorce.
Attorney fee awards- same principals as in a divorce.
Grounds: Bigamy,marraige prohibited by the relationship of the parties, incompetence, underage marriage, fraud and duress, inability to have children.

-The court opinion-follows-
Adopting the defendant-wife’s argument, the court held the right to annul a voidable marriage is a personal right and the action for annulment of such marriage can be maintained only by a party to the marriage contract, or where the spouse seeking annulment is under a legal disability, by someone in his or her behalf.

The plaintiff filed this action for annulment of his marriage, but died shortly after the complaint was served.

The trial court initially entered an order allowing plaintiff’s daughters to substitute as parties, but later determined the order was not "appropriate" and dismissed the case.

The issue was whether plaintiff’s death extinguished his claim for annulment. Michigan law is unclear as to actions for annulment. The plaintiff did not plead any of the conditions in MCL 552.1 in the complaint.

Rather, he claimed the defendant fraudulently induced him to marry her by promising him she would care for him, and she breached that promise.

Plaintiff also contended the marriage was not consummated, which alone is not grounds for annulment unless it was part of the fraud inducing the wronged party to consent to marriage and the parties did not cohabited after the fraud.

The appellants-daughters argued based on Romatz an action for annulment survives the death of a party.

Defendant argued Romatz was inapplicable because the case was filed under MCL 555.1 and involved a request to declare the marriage of an incompetent person void based on his lack of capacity to enter into a contract.

The complaint in this case alleged the marriage was voidable based on defendant’s allegedly fraudulent promise to take care of plaintiff.

According to defendant, where a marriage is merely voidable the parties are married until the court enters a judgment of annulment.

Because plaintiff died before any court judgment declared the marriage voidable, the parties were married when plaintiff died and the marriage ended with his death. The court agreed and affirmed.

The lower court dismissed the action. The Michigan Court of Appeals affirmed the action.
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Appellants appeal as of right.

An action brought to annul a marriage is equitable in nature. MCL 552.12. This Court
reviews equitable matters de novo. Schmude Oil Co v Omar Operating Co, 184 Mich App 574,
582; 458 NW2d 659 (1990).

Pursuant to MCR 2.202(A)(1), if a party to an action dies, "and the claim is not thereby
extinguished, the court may order substitution of the proper parties." The issue to be determined,
therefore, is whether plaintiff’s death extinguished his claim for annulment.

It is well established in Michigan that a court is without jurisdiction to enter a judgment
for divorce after the death of one of the parties. See, e.g., Tiedman v Tiedman, 400 Mich 571,
576; 255 NW2d 632 (1977). However, Michigan law is not as clear regarding actions for
annulment.

MCL 552.1 provides that a marriage is "absolutely void" if it is "prohibited by law"
because of the relationship by consanguinity or affinity of the parties, because one or both parties
is already married, or because either party was "not capable in law of contracting" at the time of
marriage.

Pursuant to MCL 552.2, "in case the consent of one of the parties was obtained by
force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the
marriage shall be deemed void without any decree of divorce or other legal process." MCL
552.3, on which the trial court relied in dismissing this matter, provides:

When a marriage is supposed to be void, or the validity thereof is doubted,
for any of the causes mentioned in the 2 preceding sections, either party,
excepting in the cases where a contrary provision is hereinafter made, may file a
petition or bill in the circuit court of the county where the parties, or one of them,
reside, or in the court of chancery for annulling the same, and such petition or bill
shall be filed and proceedings shall be had thereon, as in the case of a petition or
bill filed in said court for a divorce; and upon due proof of the nullity of the
marriage, it shall be declared void by a decree or sentence of nullity.

In his complaint, plaintiff did not plead any of the conditions in MCL 552.1. Rather, he
alleged that defendant fraudulently induced him to marry her by a promise that she would care
for him, and that she had breached that promise.

Michigan case law has held that for fraud to
rise to the level to support an order of annulment, it must be of a "nature wholly subversive of
the true essence of the marriage relationship," Stegienko v Stegienko, 295 Mich 530, 535; 295
NW 252 (1940), and must "affect the free conduct of the wronged party and be clearly
established." Yanoff v Yanoff, 237 Mich 383, 387; 211 NW 735 (1927).

Plaintiff also maintained that the marriage was not consummated, but that alone is not grounds for annulment unless it is part of the fraud that induced the wronged party to consent to marriage and the parties did not cohabited after that fraud. MCL 552.2.

Appellants argue that the Supreme Court specifically held that an action for annulment
survives the death of a party in Romatz v Romatz, 355 Mich 81; 94 NW2d 432 (1959), in which
the Court overruled its prior decision that had reversed the circuit court’s grant of annulment.1
The action had been brought by the guardian of the husband, who had been adjudicated
incompetent shortly after his marriage.

The husband died in the time between the publication of the two opinions, and the Supreme Court stated, in language relied upon by appellants here:

This brings us to the jurisdictional instrument itself; the bill of complaint
filed in behalf of Anton Romatz in his lifetime. If that bill conferred requisite
jurisdiction at the time, and we so hold, subsequent events -- such as Anton's
death prior to hearing below -- have not destroyed such jurisdiction. [Romatz,
supra, 355 Mich at 85.

Defendant argues that Romatz is distinguishable because the complaint in that case was
filed under MCL 555.1 and involved a request to declare the marriage of an incompetent person
1 Romatz v Romatz, 346 Mich 438; 78 NW2d 160 (1956).
void based on his lack of capacity to enter into a contract. In the present case, the complaint
alleged that the marriage was voidable based on defendant’s allegedly fraudulent promise to take
care of plaintiff.

According to defendant, where a marriage is merely voidable, the parties are
married until a court enters a judgment of annulment. Because plaintiff died before any
judgment by a court declaring the marriage voidable, the parties were married when plaintiff
died, and the marriage ended with his death.

We believe that defendant has the better argument. Although not clearly laid out in
Michigan law, legal authority and case law from other jurisdictions support this position.

" The right to annul a voidable marriage is a personal right and the action for annulment of such a
marriage can be maintained only by a party to the marriage contract or, where the spouse seeking
annulment is under legal disability, by someone in his or her behalf." 4 Am Jur 2d, Annulment
of Marriage, § 61, p 2, citing White v Williams, 159 Miss 732; 132 So 573 (1931); In re Estate of
Davis, 55 Or App 982; 640 P2d 692 (1982).

Further, "[a]n action to annul a marriage on the ground of fraud can only be brought by the defrauded spouse while both parties to the marriage are living; it cannot be annulled at the suit of the heirs of the spouse imposed upon or other third persons." 4 Am Jur 2d, Annulment of Marriage, § 62, p 2, citing Norris v Harrison, 91 US App
DC 103; 198 F2d 953 (1952); Gibbons v Blair, 376 NW2d 22 (ND, 1985); Johnson v Sands, 245
Ky 529; 53 SW2d 929 (1932); White, supra.

Posted here by
Terry Bankert
12/1/07
attorneybankert@yahoo.com