Ponke v. Ponke

564 N.W.2d 101 (1997) 222 Mich. App. 276

Jacqueline Marie PONKE, Plaintiff-Appellant,
v.
Raymond William PONKE, Defendant-Appellee.
Dennis R. LUTZ, Personal Representative of the Estate of Jacqueline Marie Ponke, Deceased, Plaintiff-Appellee,
v.
Raymond William PONKE and Allan R. Bredin, D.D.S., Defendants, and
Timothy R. Ash & Associates, Intervenor-Appellant.

Docket Nos. 174546, 183007.

Court of Appeals of Michigan.

Submitted October 2, 1996, at Lansing. Decided March 14, 1997, at 9:10 a.m. Released for Publication May 22, 1997.

Larry Barnett, Waterford, for plaintiff in Docket Nos. 174546 and 183007.

Timothy R. Ash & Associates by Timothy R. Ash, Bingham Farms, for intervenor-appellant.

Before McDONALD, P.J., and BANDSTRA and C.L. BOSMAN^[*], JJ.

PER CURIAM.

In Docket No. 174546, the attorney who represented plaintiff Jacqueline Ponke in a divorce action^[1] appeals as of right from an order denying a motion to show cause why defendant Raymond W. Ponke should not be held in contempt for violating an injunctive order prohibiting him from transferring assets during the pendency of the parties' divorce action. In Docket No. 183007, intervenor, Timothy R. Ash & Associates (hereafter Ash), appeals by leave granted from an order granting a motion for summary disposition by the personal representative of Jacqueline's estate in a wrongful death action brought against Raymond Ponke. The appeals were consolidated. We affirm in Docket No. 174546, and reverse in Docket No. 183007.

Jacqueline Ponke filed a complaint for divorce against defendant Raymond Ponke in December 1993. On January 4, 1994, the trial court issued an ex parte restraining order. The order prohibited Raymond from transferring "any property possessed by the parties hereto, either jointly, severally or otherwise, during the pendency of this suit or until further Order of this Court," and was served on Raymond on January 5, 1994. Three days later, on January 8, 1994, Raymond bludgeoned Jacqueline to death with a hammer. On January 12, Raymond retained Ash to defend him against the murder charge. In consideration of Ash's representation, Raymond signed his pension and a quitclaim deed to the marital home to Ash.^[2] Thereafter, the personal representative of Jacqueline's estate filed a wrongful death action against Raymond in which Ash intervened to protect its interest in the assets Raymond had transferred to it.

In the divorce action Jacqueline's attorney filed a motion to show cause why Raymond should not be held in contempt for violating the injunctive order prohibiting him from transferring assets during the pendency of the divorce action. The court denied the motion, determining that because the divorce action abated upon Jacqueline's death, the restraining order was no longer in effect at the time Raymond transferred the assets.

On appeal, Jacqueline's attorney argues the trial court erred in failing to hold Raymond in contempt for violating the injunction. Whether the injunction remained effective after Raymond killed his wife is a question of law this Court reviews de novo. Burgess v. Clark, 215 Mich.App. 542, 547 N.W.2d 59 (1996). We find no error in the court's ruling. Where one of the parties to a divorce action dies before the entry of a judgment, the action abates because there is no longer any marriage to dissolve. LeTarte v. Malotke, 32 Mich.App. 289, 188 N.W.2d 673 (1971). Jacqueline's attorney's reliance on Irvin v. Irvin, 93 Mich.App. 770, 286 N.W.2d 920 (1979), to support the claim a trial court may enforce a penalty for violation of an injunctive order in a divorce action after one of the parties dies, is misplaced. Although in Irvin, this Court found the trial court could remedy a violation of an injunctive order in a divorce action after the violator's death, both parties to the divorce were living when the husband violated the injunction. Thus, the divorce proceedings had not abated at the time of the violation. In the instant case, Raymond violated the injunction after his wife's death. Here, the divorce action had abated at the time of the alleged violation and the injunctive order consequently was without effect. The trial court did not err in denying relief with regard to the motion to show cause.

In the wrongful death action, the personal representative of Jacqueline's estate filed a motion for summary disposition against Ash, seeking a determination Ash did not have any claim to the assets that were transferred to it by Raymond. The trial court granted the motion, concluding Raymond was precluded from transferring the pension and marital home to Ash pursuant to M.C.L.A. § 700.251; M.S.A. § 27.5251 and M.C.L.A. § 600.2922; M.S.A. § 27A.2922^[3], which prohibit a surviving spouse who "feloniously and intentionally" kills the other spouse of the marriage from benefiting from the killing.

On appeal, Ash claims the trial court erred in interpreting M.C.L.A. § 700.251; M.S.A. § 27.5251 as mandating a finding Raymond predeceased his wife for purposes of transferring his pension and his separate interest in the marital home. We agree.

The statute provides in relevant part:

(1) A surviving spouse, heir, or devisee who feloniously and intentionally kills or aids and abets the killing of the decedent is not entitled to any benefits under the will or under intestate law, and the estate of the decedent passes as if that spouse, heir, or devisee predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the devisee passes as if the devisee predeceased the decedent.

(2) A joint tenant who feloniously and intentionally kills or aids and abets the killing of another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as his or her property and that joint tenant does not have rights by survivorship. This subsection applies to joint tenancies and tenancies by the entirety in property, joint accounts in banks, savings and loan associations, credit unions, and other financial institutions, and any other form of co-ownership with survivorship incidents.

* * * * * *

(5) Any other acquisition of property or interest by the killer or by one who aids and abets the killer is treated in accordance with the principles of this section.

* * * * * *

(7) This section does not affect the rights of any person who, before rights under this section were adjudicated, purchases, from the killer or aider and abettor for value and without notice, property which the killer or aider and abettor would have acquired except for this section, but the killer or aider and abettor is liable for the amount of the proceeds or the value of the property.

In construing statutory meaning, a court's primary goal is to ascertain and give effect to legislative intent. Institute in Basic Life Principles, Inc. v. Watersmeet Twp. (After Remand), 217 Mich.App. 7, 551 N.W.2d 199 (1996). This Court should first look to the specific statutory language to determine the intent of the Legislature. Id. The Legislature is presumed to intend the meaning that the statute plainly expresses. Id. Judicial construction of the statute is not permitted where the plain and ordinary meaning of the language is clear. Id.

The provisions of M.C.L.A. § 700.251; M.S.A. § 27.5251 prevent the murdering spouse from acquiring any property or interest upon the death of the decedent spouse, thereby precluding the murdering spouse from "benefiting" from the killing. Section 251(1) mandates that the estate of the murdered spouse pass as if the murdering spouse predeceased the murdered spouse. The provision clearly provides that the property appointed by the will of the decedent to or for the benefit of the murdering spouse passes as if the murdering spouse predeceased the decedent. However, the provision does not force a murdering spouse to forfeit ownership rights to property obtained before the murder. Likewise, § 251(5) prohibits a murdering spouse from acquiring any other property or interest as a result of that wrongful conduct, but does not prevent the murdering spouse from retaining an interest in the murdering spouse's own property. In the instant case, because Raymond was the principal on his pension while his wife was a beneficiary, he did not acquire his pension upon the death of his wife, and the pension would not have been devised to Raymond upon his wife's death. With regard to Raymond's pension, Raymond derived no benefit from his wife's death. The trial court erred in ruling Raymond had no interest in his pension to transfer to Ash.

We also find error in the court's conclusion Raymond forfeited his interest in the marital home. Section 251(2) provides that when a joint tenant murders the other joint tenant, the tenancy is severed, and the murdering spouse no longer has rights of survivorship. A plain reading of subsection 2 indicates each joint tenant will take half an interest in the property when one spouse kills the other. The statute does not require the forfeiture of the murdering spouse's interest in the property. Subsection 2 merely precludes the murdering spouse from taking the murdered spouse's share of the property by a right of survivorship. Thus, when Raymond killed his wife, he may have severed the joint tenancy in their home, but he still retained a one-half interest in it. The statute therefore did not preclude Raymond from transferring his interest to Ash for payment of his legal expenses.^[4] The trial court erred in so ruling.

In Docket No. 174546, the court's order denying relief regarding the motion to show cause is affirmed. In Docket No. 183007, the court's order granting summary disposition in favor of the personal representative with regard to Ash's claim to an interest in Raymond's pension and share of the marital home is reversed. In Docket No. 174546, costs are awarded to defendant. In Docket No. 183007, neither party is entitled to costs.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Since Jacqueline Ponke's death, no one has assumed her status as plaintiff in the divorce action.

[2] Raymond was convicted of first-degree murder and sentenced to life imprisonment without parole.

[3] Although M.C.L.A. § 600.2922; M.S.A. § 27A.2922, the wrongful death act, states it is subject to M.C.L.A. § 700.251; M.S.A. § 27.5251, it has no direct bearing on the issues raised in this appeal.

[4] Because we have found Raymond possessed an interest in the marital home which he could properly transfer to Ash, and because the record is incomplete with regard to the facts surrounding the transfer, we decline to address Ash's claim it is a bona fide purchaser of an interest in the marital home pursuant to § 251(7). However we note our skepticism that Ash acquired any interest other than that of a lien holder.