MSC remands fugitive entitlement case

The Michigan Supreme Court has remanded a 2006 divorce case to Houghton Circuit Court for clarification of its alimony award. But before the court can hear clarify the alimony issue in Friend v. Friend, defendant Julia Friend must first make good on the circuit court orders.

Alexander and Julia Friend were married in 1982, and had two sons.

In July 2006, Alexander filed for divorce. The two agreed to a court order that gave Julia physical custody of the boys. They both had legal custody. The court allowed Julia to move with the children to South Carolina.The children resisted visitation with their father, who claimed that Julia encouraged the children to resist.

The divorce was tried over four days in August 2007. The court ruled that the parents would work together to help the children build a relationship with their father. The court also ruled that certain assets, namely an inheritance Alexander had received, were his separate property, and split the remainder of the couple’s assets equally.

Julia was unwilling to facilitate the relationship between the children and their father, according to Michigan Supreme Court background on the case. She did not follow the court order to make the children available for counseling, nor did she make them available for visits with their father. She appealed the court ruling on parenting time, spousal support, property distribution, and attorney fees in the Court of Appeals.

Total spousal support was approximately $54,000 over five years, on a declining scale. The Friends are three years into the agreement, and Alexander pays $1,000 per month this year, and $500 per month for the next two years.

At the same time, Alexander filed motions in an attempt to get his former wife to comply with the visitation and counseling. She did not comply. The trial court found her in contempt and issued an arrest warrant. She appealed to the Michigan Supreme Court. Her former husband argues that she cannot, under the fugitive disentitlement doctrine.

Justice Maura D. Corrigan, in her dissent of the order, agreed:

Defendant has repeatedly violated the trial court’s orders concerning custody and parenting time, thus depriving the plaintiff father of any contact or relationship with his children for nearly three years. The trial court has found the defendant in contempt of court at least twice and issued a bench warrant for her arrest. The majority reaches the merits of defendant’s application while she continues to defy the trial court’s orders, including the very order from which she seeks relief. I would instead adpot the ‘fugitive disentitlement doctrine’ and condition our consideration of defendant’s application on her compliance with the trial court’s orders.

Justices Stephen J. Markman and Robert P. Young joined Corrigan’s dissent.

The majority stated, “As a precondition of the trial court clarifying the nature of its award, appellant shall purge herself of any outstanding findings of contempt in the circuit court within 90 days of the date of this order.”

Corrigan would have rather put the horse before the cart, so to speak:

I would not entertain her request for legal redress ‘while [s]he stands in an attitude of contempt to legal orders and processes of the courts of this state.’ MacPherson, supra. Instead, I would adopt the approach of the Arizona Supreme Court in Stewart v Stewart, 91 Ariz 356 (1962), and require defendant to comply with the trial court’s orders within a specified period of time or face dismissal of her application for leave to I appeal. I would give defendant 56 days to comply before dismissing her application.

In their opinions . . .

“Because I question defendant’s right to appellate relief while she is in contempt of the trial court’s orders, and to avoid the harsh sanction of outright dismissal, I would explore the approach of the Arizona Supreme Court in Stewart v Stewart, 91 Ariz 356 (1962), and condition the grant of any relief this Court concludes is otherwise appropriate on defendant’s compliance with the trial court’s orders.”

– Michigan Supreme Court Justice Maura Corrigan, concurring in the MSC’s leave granted order in Friend v. Friend.

Exactly. The fugitive disentitlement doctrine is based on the notion that an appellate court can boot an on-the-run criminal defendant’s appeal.

The MSC is mulling whether to adopt some version of the doctrine in civil settings and has asked the parties in this hotly contested divorce case for briefs on the issue.

* * *
“It cannot reasonably be disputed that, in general, senior citizens and the elderly are more susceptible to falls and injuries from falls, especially where there is some defect present in a walking surface, considering natural frailities and the loss of agility and balance that unfortunately come with age.”

– Michigan Court of Appeals Judge William B. Murphy, dissenting in Ford v. Nat’l Church Residences, Inc.

Everyone needs to watch their step. Ford, an 88-year-old woman, tripped on a cracked sidewalk leading to her senior-citizens’ apartment.

The majority turned aside Ford’s argument that her landlord breached the covenant in MCL 554.139(1)(a) or (1)(b) “[t]hat the premises and all common areas are fit for the use intended by the parties” and “[t]o keep the premises in reasonable repair.”

The majority noted that the crack was “open and obvious.”

Murphy acknowledged

that, in the context of the open and obvious danger doctrine, an objective standard is used and that the fact-finder must consider the condition of the premises, “not the condition of the plaintiff.”

But, Murphy continued, under MCL 554.139(1)(a)

defendant had a legal obligation to keep the sidewalk “fit for the use intended by the parties.” (emphasis added.)

The express language of the statute has a subjective component to it, where the language refers to the parties’ intent as to use. The parties’ intent here, clearly and necessarily, was that the sidewalks would be used to walk on for purposes such as ingress and egress relative to the apartments.

But encompassed within that intent and the parties’ knowledge was the fact that the sidewalks would be used to a great extent by the elderly.

Murphy argued that a jury should decide whether the sidewalk was fit for the use intended by the parties.