In their opinions

“[T]he majority’s unrestrained decision today is a huge mistake.”

Michigan Supreme Court Justice Elizabeth A. Weaver, dissenting in Tkachik v. Mandeville.

It’s not too often that you’ll find MSC Justices Stephen J. Markman, Michael F. Cavanagh, Maura D. Corrigan and Chief Justice Marilyn Kelly in agreement about much of anything.

But the four of them formed a majority and ruled that when Frank Mandeville’s wife, Janet, died, he unquestionably received fee simple title to property they held as tenants by the entirety.

No surprise there. But they also ruled that Frank owed Janet’s estate some cash because, well, because he was a cad.

In the last 10 years of their marriage, Frank frequently took long trips to foreign countries. He was gone on one such trip for the 18 months before she died. While Frank was abroad, Janet had to pay the mortgage, insurance and taxes on their property by herself.

He never called or wrote, even though he knew she was battling breast cancer. He didn’t even return for her funeral.

Before she died, she did everything she could, short of divorcing Frank, to cut him out of her life. She wrote him out of her will. She transferred her retirement benefits to keep them from him. She even tried to defeat the right of survivorship in the marital properties through a quitclaim deed.

A few months after Janet’s death, Frank strolled into probate court and petitioned to set aside Janet’s will. Susan Tkachik, Janet’s sister and personal representative, had little trouble convincing the court that Frank had “willfully abandoned” Janet, and, under MCL 700.2801(2) was not a “surviving spouse.”

Then Susan went on the offensive. She filed her own probate complaint, arguing that because Frank was not a surviving spouse, he and Janet had owned the marital property as tenants in common, and that he shouldn’t get fee simple title.

But MCL 700.2801(2), said the probate court, has limited application and certainly doesn’t destroy a tenancy by the entireties. Frank gets the property in fee simple.

Susan wasn’t through. She amended her complaint to seek contribution from Frank for all the mortgage, insurance and taxes payments Janet made before her death.

The probate court didn’t go for that one, either. Nor, after a couple of trips up and down the appellate ladder, did the Court of Appeals.

Writing for the majority, Markman, said that’s just not fair. Susan sought equitable relief, and that’s what she’s going to get.

Our consideration of the “special circumstances” of this case leads us to conclude that the following facts are legally sufficient to permit a claim for contribution between tenants by the entirety:

(a) where the decedent spouse has taken sole responsibility for the property maintenance payments while the other spouse had absolutely no personal contact with her for at least the last 18 months of her life;

(b) where the other spouse did not attempt once to communicate with the decedent spouse during this time, even though he acknowledged that he was aware that she was battling cancer;

(c) where the other spouse was disinherited in the decedent spouse’s will;

(d) where the decedent spouse sought diligently, albeit unsuccessfully, to divest the other spouse of his interest in the real properties before she died; and

(e) where the other spouse was deemed a non-surviving spouse under MCL 700.2801(2)(e)(i).

These unusual facts cry out for equitable relief so that “complete justice” can be done and give us assurance that in granting plaintiff’s remedy we are exercising our discretion carefully and responsibly.

Justices Robert P. Young Jr., Weaver and Diane M. Hathaway dissented. Said Young:

There is an old legal adage that “bad facts make bad law.” This phrase has rarely been as true as on the circumstances giving rise to this case. …

With its decision today, the majority now permits posthumous collateral attacks on the validity of marriages in this state where neither spouse has taken the appropriate legal steps to challenge the marriage or the financial equities of the marriage during life.

In doing so, the majority ignores the perfectly adequate legal remedies that our Legislature created in specific contemplation of marital disharmony — specifically, an action for separate maintenance — instead preferring to craft a new remedy recognized nowhere else in the country.

This rule allowing contribution between tenants by the entireties outside the context of a divorce or separate maintenance action is not supported by a single case or authority from any jurisdiction, let alone authority from Michigan.

As such, the new rule the majority creates today is untested and holds unforeseen consequences that reach much further than the narrow and unassuming decision the majority believes it has issued in this case.

Weaver, in her dissent, quoted Young’s statement with approval and labeled the majority’s approach a “huge mistake.”