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STATE OF MICHIGAN
COURT OF APPEALS


JANET M. DAVIS, Plaintiff-Appellee/Cross Appellee/Cross-Appellant, v CHARLES THOMAS DAVIS, Defendant-Appellee/Cross Appellant/Cross-Appellee, and ALDEN S. HALPERT, Defendant-Cross-Plaintiff Appellant/Cross-Appellee.

UNPUBLISHED July 30, 1996

No. 175102 LC No. 91-409596

Before: Hood, P.J., and Griffin and J. F. Foley,* JJ. PER CURIAM. Defendants appeal by right a judgment in favor of plaintiff and an order denying their motion for a new trial. Plaintiff cross appeals by right an order granting partial summary disposition pursuant to MCR 2.116(I)(2) in favor of defendants on her equitable mortgage claim and denying her motion for summary disposition pursuant to MCR 2.116(C)(9) and (10) on her fraudulent transfer claim. Plaintiff also cross appeals by right the trial court's ruling at trial refusing to admit certain evidence due to the attorney-client privilege. We affirm in part, reverse in part, and remand for further proceedings. This case arose after defendant Davis assigned his interest in a land contract for property located in Osceola County, Michigan, to defendant Halpert approximately ten months before plaintiff filed for divorce from Davis. Plaintiff filed suit against Davis and Halpert alleging the following: (1) ______________________________ *Circuit judge, sitting on the Court of Appeals by assignment. -1

defendants committed a fraud, (2) the transfer constituted a fraudulent conveyance against plaintiff, and (3) the transfer resulted in an equitable mortgage in plaintiff's favor. Halpert filed a cross complaint against defendant Davis and a counter-complaint against plaintiff seeking a declaration that he was the sole owner of the subject property, or alternatively, that he was entitled to a lien on the subject property in an amount that the court determined to be fair. Plaintiff subsequently filed a motion for summary disposition pursuant to MCR 2.116(C)(9) and (10) to quiet title to the subject property. The trial court denied plaintiff's motion and granted partial summary disposition to defendants pursuant to MCR 2.116(I)(2) on the equitable mortgage issue. After a bench trial, the trial court entered judgment in plaintiff's favor on the fraudulent conveyance claim. The court set aside the assignment of the land contract to Halpert and restored the subject property to the marital estate. The court left the distribution of the subject property to the court presiding over the divorce between plaintiff and Davis. The court also entered an order of no cause of action against plaintiff in favor of defendants on plaintiff's fraud claim and against defendant Halpert and in favor of plaintiff on Halpert's counterclaim. The court also entered a judgment for $8,666.00, representing the down payment Halpert paid to Davis for the assignment of the land contract, against Davis in favor of Halpert on Halpert's cross claim. Defendants filed a motion for a new trial, arguing that plaintiff was not a creditor under the Uniform Fraudulent Conveyance Act, MCL 566.17; MSA 26.887, because she was not a creditor at the time of the assignment and that Davis had an absolute right to convey the subject property to Halpert. Defendants also argued that the trial court's remedy of setting aside the conveyance was improper. The trial court denied its motion. Defendants first argue that the trial court erred in holding that plaintiff was a "creditor" entitled to make a claim under the Uniform Fraudulent Conveyance Act, MCL 566.17; MSA 26.887. We disagree. MCL 566.221; MSA 26.892 defines a fraudulent conveyance as: Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and any charge upon lands, goods or things in action, or upon the rents or profits thereof, made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent, as against the persons so hindered, delayed or defrauded, shall be void. MCL 566.11; MSA 26.881 defines "creditor" as "a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent." Furthermore, MCL 566.17; MSA 26.887 expands the definition of "creditor" to include both present and future creditors: Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors.

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Defendants argue that plaintiff is not entitled to recovery because she was not a creditor at the time of the assignment since she was married to Davis. Defendants' argument is contrary to the clear provisions of

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