Preview:

STATE OF MICHIGAN COURT OF APPEALS

CAMRON JON KENNEY, Plaintiff-Appellee, v DAVID JAMES KENNEY, Defendant-Appellant, and ROBERT SCHAFFER and GRACE SCHAFFER, Intervening Defendants-Appellants.

UNPUBLISHED January 13, 2009

No. 278142 Eaton Circuit Court LC No. 03-001473-DO

Before: Hoekstra, P.J., and Bandstra and Donofrio, JJ. PER CURIAM. Defendant David Kenney ("defendant") and intervening defendants Robert and Grace Schaffer ("the Schaffers," or collectively with defendant Kenny, "defendants") appeal by leave granted the November 1, 2006 judgment of divorce. We affirm. Plaintiff and defendant were married on August 14, 1999. In 2001, defendant was sentenced to serve 30 years in federal prison following his conviction on federal drug charges. Plaintiff filed the instant action for divorce on October 31, 2003. The parties have no children. The most significant asset at issue in the divorce was the marital home, a 1973 Baron mobile home sitting on five acres of land ("the property"). Defendant entered into a land contract to buy the property, from Robert and Edna Teachout in 1993, before the parties were married. During their marriage, plaintiff and defendant spent more than $16,000 on improvements to the property, including an addition to the mobile home, a deck and a paved driveway. Plaintiff continued to reside in the marital home on the property after defendant was sentenced. Eventually, she began living there with another man. Plaintiff commenced these divorce proceedings in October 2003. According to plaintiff, sometime in 2000 or 2001, after defendant was arrested on the federal drug charges upon which he would be convicted, he showed her an agreement between himself and the Schaffers, telling her that it would "take care of [them] not losing the house." The agreement, which plaintiff did not read at that time, purported to transfer title to the property to the Schaffers in exchange for $16,500. The agreement further provided that defendant would -1-

retain possession of the property as a lessee, that he would maintain the property "with ownership care," that he would complete payment of his land contract with the Teachouts, that he would pay any taxes, and that, once the land contract was paid in full, the Schaffers would receive the deed to the property and defendant would then pay rent to the Schaffers. Robert Schaffer ("Robert") testified that in 1996, defendant asked him to loan defendant money to pay an attorney relating to a previous drug offense, that he loaned defendant $16,500 and that he and defendant agreed that if defendant "didn't meet the aspects of [their] agreement," defendant would transfer the property to the Schaffers. Robert further testified that, he, Grace, and defendant signed the agreement on June 12, 1996, and that the agreement was not notarized until "early [19]97." Plaintiff testified that defendant told her that the agreement had been "back dated" in order to avoid forfeiture of the property in connection with defendant's federal drug charges. Plaintiff also testified that during the marriage, defendant told her that the property was his and that she "would be taken care of." The Schaffers first demanded that plaintiff make payments relating to the property in November 2003, and they began eviction proceedings against plaintiff thereafter. In her complaint for divorce, plaintiff claimed a marital interest in the property, alleging that defendant owned the property at the time of his arrest and that he transferred it to the Schaffers thereafter, without plaintiff's knowledge or consent, for one dollar, in order to avoid having it forfeited to the United States Government.1 The Schaffers intervened as holders of record title to the property, having received a warranty deed to the property from the Teachouts in April 2002. Defendant and the Schaffers argued that plaintiff lacked standing to challenge the validity of their agreement because she was not a party to that agreement. The trial court found that plaintiff had standing to challenge the Schaffers' title to the marital real property. Further, the trial court awarded the property to plaintiff, finding that it was part of the marital estate and that the agreement between defendant and the Schaffers was not executed prior to the marriage, but rather, was an attempt by defendant and the Schaffers to defeat plaintiff's claims to the property by fraudulent means. The trial court ordered the Schaffers "to convey unencumbered legal title to the real estate by warranty deed to [p]laintiff," and also awarded plaintiff her costs and attorney's fees. On appeal, defendants first argue that the trial court erred by concluding that plaintiff had standing to challenge the validity of the agreement between defendant and the Schaffers transferring the property to the Schaffers. We disagree. Whether a party has standing is a question of law that this Court reviews de novo. Michigan Citizens for Water Conservation v Nestle Waters North America, Inc, 479 Mich 280, 291; 737 NW2d 447 (2007). This Court reviews findings of fact by the trial court pertinent to the determination of standing for clear error, giving due deference to the trial court's superior ability to assess the credibility of the witnesses appearing before it. MCR 2.613(C); Glen LakeCrystal River Watershed Riparians v Glen Lake Ass'n, 264 Mich App 523, 531; 695 NW2d 508

1

Plaintiff asserted, and defendant did not deny, that the mobile home was not transferred to the Schaffers, but rather remained titled in plaintiff's name.

-2-

(2004). A finding is clearly erroneous if the appellate court, on all of the evidence, is left with a definite and firm conviction that a mistake has been made. Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990). Generally, a party has standing if, "in an individual or representative capacity [he or she has] some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy." Bowie v Arder, 441 Mich 23, 42-43; 490 NW2d 568 (1992), quoting 59 AmJur2d, Parties,

Download CAMRON JON KENNEY V DAVID JAMES KENNEY.pdf

Michigan Law