author: T. M. Burns, P. J.

text:
    SCHALM v MT. CLEMENS GENERAL HOSPITAL
    Docket No. 77-1114.
    Submitted January 16, 1978, at Detroit.
    Decided April 18, 1978.
    Carl Schalm and Ethel J. Schalm brought an action for medical malpractice in treating the cancers of Carl A. Schalm against Mt. Clemens General Hospital and eight individual doctors. During the litigation Carl Schalm died and thereafter his estate was substituted as a party plaintiff for him. The Macomb Circuit Court, Robert J. Chrzanow^ki, J., granted an accelerated judgment of dismissal to all defendants on the ground that all claims were barred by the malpractice two-year statute of limitations. Plaintiffs appeal. Held:

    An action based on malpractice must be brought within two years of discontinuance of treatment or otherwise serving plaintiff or within two years of the time when plaintiff discovers or should discover the asserted malpractice, whichever is later. However, if disputed fact issues exist on either point of the statute of limitations analysis, summary dismissal by accelerated judgment is improper. Accelerated judgment was improper in this case because, on the record, there was some room to question whether the plaintiff knew or should have known that malpractice had been committed. A plaintiff is not charged with knowledge of the contents of his medical file for discovery of malpractice.
    Reversed and remanded.
    1. Limitation op Actions — Malpractice—Summary Dismissal.
    An action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later; if disputed fact issues exist on either point of the statute of limitations analysis, summary dismissal by accelerated judgment is improper (MCLA 600.5805[3], 600.5838; MSA 27A.5805[3], 27A.5838).

      References for Points in Headnotes

       61 Am Jur 2d, Physicians and Surgeons § 181 et seq.

    Statute of limitations applicable to malpractice action against physician, surgeon, dentist, or similar practioner. 80 ALR2d 320.

       61 Am Jur 2d, Physicians and Surgeons § 213.

      2. Limitation of Actions — Malpractice—Discovery of Malpractice — Reasonable Diligence — Accelerated Judgment — Question of Fact.
    Discovery of malpractice or, when it should have been discovered in the exercise of reasonable diligence, is the primary question in determining the limitations on malpractice actions; where no reasonable minds could differ on the discovery question, an accelerated judgment may be proper; the fact that a plaintiff is given a correct diagnosis should not always require that he be charged with notice that an earlier, and later known to be incorrect, diagnosis was malpractice and under such circumstances, accelerated judgment would be improper because there is some room to question whether plaintiff knew or should have known that malpractice had been committed.
    3. Malpractice — Discovery of Malpractice — Mental State— Fraudulent Concealment — Awareness of Malpractice Action — Limitation of Actions.
    A plaintiff’s knowledge of his true condition is but one factor in evaluating the question of the reasonableness of his efforts to discover asserted malpractice; also relevant might be plaintiff’s mental state, assurances by medical personnel falling short of fraudulent concealment, and information received from others which show plaintiff was aware of his cause of action.
    4. Malpractice — Discovery of Malpractice — Physicians and Surgeons — Medical Files — Duty to Patient — Limitation of Actions.
    A patient should not have to question his physician, for the purpose of discovering malpractice, about the contents of his medical file as to whether tests have been recommended by specialists sought by the physician and not performed; the responsibility of conveying this type of information should be with the physician, not the patient.

      Dietrich, Cassavaugh, Fogelson & Perkins, for plaintiffs.

      Sullivan, Ranger, Ward & Bone, for defendant Schmunk.

      Dice, Sweeney, Sullivan & Feikens, P. C., for defendants Ward, Phardel, Fagen and Rudnikoff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Robert P. Siemion), for defendant Mt. Clemens General Hospital.

      Schureman, Frakes, Glass & Wulfmeier (by Robert A. Obringer), for defendants Ragheb, Matthews, Jr., and Rousseau.
    Before: T. M. Burns, P. J., and M. F. Cavanagh and D. C. Riley, JJ.
   T. M. Burns, P. J.

This is a medical malpractice action against Mt. Clemens General Hospital and eight individual doctors. Plaintiff filed his complaint and four subsequent amended complaints seeking to recover for the alleged malpractice of the various defendants in the discovery and treatment of a cancer. On motions brought by defendants, the trial court granted accelerated judgment, GCR 1963, 116.1(5), holding that all claims against the defendants were time barred under MCLA 600.5805(3); MSA 27A.5805(3) and MCLA 600.5838; MSA 27A.5838.

Our review of the trial court’s determination is guided by two principles: first, under the above cited statutes, "an action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later”, Dyke v Richard, 390 Mich 739, 747; 213 NW2d 185 (1973); second, if disputed fact issues exist on either point of the statute of limitations analysis, summary dismissal by accelerated judgment is improper, Kelleher v Mills, 70 Mich App 360; 245 NW2d 749 (1976).

The facts which apply to the statute of limitations question allow us to consider the defendants in two groups; those who treated plaintiff before February 1, 1971, and those treating him after that date. 5The asserted malpractice of the defendants in the first group is a failure to run appropriate tests and diagnose plaintiff’s malady as cancer, rather than an ulcer, before plaintiff was told he had cancer on February 1, 1971. None of the doctors in this group treated plaintiff after January 14, 1971. They were made defendants in the original complaint filed on April 19, 1974, the first and second amended complaints filed May 10, 1974, and September 15, 1975, respectively.

The alleged malpractice of the second group is failure to note a possible second cancer or to perform an endoscopic exam in February of 1971. The exam was performed after seven months, in September of 1971, and a further cancer discovered which led to more surgery at that time. These defendants were brought into the case by the third and fourth amended complaints filed January 29, 1976, and June 15, 1976.

I

We turn our attention to the first group of doctors. None of these doctors treated plaintiff after January 14, 1971. The first complaint in this case was filed April 19, 1974. Obviously, unless there are fact questions under the "discovery” branch of the accrual rule, accelerated judgment as to these defendants was proper.

Defendants argue there are no fact questions. They argue that as a matter of law, plaintiff was put to inquiry about their possible malpractice in misdiagnosing his ailment when he was told he had cancer in February of 1971. Under this argument, plaintiff knew or should have known, of the asserted malpractice in the incorrect diagnosis as soon as the correct diagnosis was made. Primary reliance is placed on Johnson v Caldwell, 371 Mich 368; 123 NW2d 785 (1963), and Patterson v Estate of Flick, 69 Mich App 101; 244 NW2d 371 (1976), lv granted, 399 Mich 838 (1977), and we admit that language in these cases supports this proposition, even though neither is a true misdiagnosis case.

Under Dyke, the question is when was the "asserted malpractice” discovered or, when should it have been discovered in the exercise of reasonable diligence. Does the fact that plaintiff is given a correct diagnosis always require that he be charged with notice that the earlier, and now known to be incorrect, diagnosis was malpractice? We think not.

There will be cases where no reasonable minds could differ on the discovery question and accelerated judgment would be proper in such a case. However, in this case there is some room to question whether plaintiff knew or should have known that this first group of doctors had committed malpractice when he was told of his true condition in February of 1971.

Plaintiff’s knowledge of his true condition is but one factor in evaluating the question of reasonableness of his efforts to discover the asserted malpractice. See, e.g., Cates v Frederick W Bald Estate, 54 Mich App 717; 221 NW2d 474 (1974), lv den, 394 Mich 758 (1975), Patterson v Estate of Flick, supra, (W. S. White, J., dissenting). Also relevant might be the plaintiff’s mental state, assurances by medical personnel falling short of fraudulent concealment, and information received from others which show plaintiff was aware of the cause of action.

On the record before us, reasonable minds could differ as to the date plaintiff must be charged with knowledge of the asserted malpractice. Accelerated judgment as to this group of defendants was improper.

II

The same principles guide our analysis of the claims against the second group of doctors. Drs. Matthews and Schmunk continued to treat plaintiff, even after they were joined in this suit, until his death. However, it is unclear whether this treatment was "as to the matters out of which the claim for malpractice arose”. Given the circumstances of this case, we do not believe it is necessary to determine how broadly or narrowly those terms should be applied and again turn to the discovery portion of the accrual rule.

The three doctors involved in this part of the case were responsible for the diagnosis of plaintiff’s cancer and the first surgery in February of 1971. Drs. Schmunk and Matthews were also responsible for performance of the endoscopic examination in September of 1971. This led to discovery of a second cancerous area and its surgical removal. The alleged malpractice by Drs. Matthews and Schmunk is failure to read and act on a radiologist report prepared by Dr. Curatolo in February of 1971, which indicated the possibility of this second cancer and do the tests recommended in the report at that time rather than waiting until September of 1971. The alleged malpractice of Dr. Rousseau is failure to note the second cancer when he read the x-rays in February of 1971.

Although defendants argue that Dr. Curatolo’s report was in the hospital file and, therefore, with reasonable diligence, plaintiff could have discovered their alleged malpractice long before they were actually brought into the suit in 1976, it appears that plaintiff (and plaintiff’s counsel) first learned of the possibility that the second cancer was diagnosable in February of 1971 (as opposed to its actual discovery date in September of that year) when Dr. Curatolo was deposed on January 15, 1976. Defendants also argue that when the recommended exam was performed and the second cancer discovered in September of 1971, the failure to act in February of 1971 was readily apparent and, therefore, the statute of limitations should run from that date.

We reject the contention that because Dr. Curatolo’s report was in the hospital file, a fact not shown on this record, that plaintiff is charged with knowledge of its contents from that date. Plaintiff is alleging that he was never informed of the necessity for an endoscopic exam in February of 1971. It seems unfair that we should require a patient to question his physician about the contents of his medical file as to whether tests have been recommended by specialists sought by the physician and not performed. The responsibility of conveying this type of information must be with the physician, not the patient.

A jury might infer that plaintiff could, with reasonable diligence, have discovered the asserted malpractice within a short time after the second cancer was found in September of 1971. But, we will not hold that such is the only possible finding. There are other medical-factual possibilities for the existence of this abnormal growth in September of 1971. Plaintiff had knowledge that this area should have been examined and the cancer diagnosed earlier only when Dr. Curatolo was deposed in January of 1976. Under Whitney v Gallagher, 64 Mich App 46; 235 NW2d 57 (1975), accelerated judgment was improperly entered as to this second group of defendants.

Reversed and remanded for further proceedings not inconsistent with this opinion. Costs to abide the final result.

       Carl Schalm, the named plaintiff in this case, died on February 14, 1976, and thereafter his estate was substituted as a party plaintiff.

       We are concerned with the statute as it existed before the amendments of 1975 PA 142.

       The defendants in this group are Mt. Clemens General Hospital, Dr. Moufid Ragheb, M. D., Dr. Robert C. Ward, D. O., Dr. John W. Phardel, Dr. Robert O. Fagen, D. O. and Dr. Peter Rudnikoff, D. O.

         The defendants in the second group include Dr. Christian Matthews, Jr., M. D., Dr. Robert F. Schmunk, M. D., and Dr. Daniel Rousseau, M. D.

       The hospital, and defendants Dr. Ward, Dr. Phardel and Dr. Ragheb.

       Dr. Fagen.

       Dr. Rudnikoff.

       Slightly different facts apply to Dr. Rousseau, but he may still be considered with this group.

       Drs. Matthews and Schmunk.

       Dr. Rousseau is a radiologist who read x-rays in February of 1971. He did not note the fourth lesion discovered in September of 1971 in his report. It was noted by Dr. Curatolo ten days later, but Drs. Matthews and Schmunk did not act on Dr. Curatolo’s recommendation contained in his report until September of 1971.

       In Johnson, the malpractice was misadvice. The plaintiff had been told that nothing could be done for her problem. She was charged with discovery of her cause of action when she was later told that surgery would correct her condition. 371 Mich at 380.
      In Patterson, the plaintiff was told immediately after surgery that a nerve had been accidentally severed during surgery. She was charged with notice of her claim at that time.
      For a collection of cases dealing with improper diagnosis as it is affected by the discovery accrual rule, see 80 ALR2d 368, § 7.

        See, Cates v Bald Estate, supra, and Kelleher v Mills, supra, and Winfrey v Farhat, 382 Mich 380; 170 NW2d 34 (1969).

       This phrase appears in MCLA 600.5838; MSA 27A.5838 and appears to be a further limitation of the rule stated in DeHaan v Winter, 258 Mich 293; 241 NW 923 (1932).

       Actually, this was a fourth cancerous area, three others having been discovered and removed in the February surgery.


source: Caselaw Access Project

author: Bronson, J.

license: Public Domain

text:
    13-SOUTHFIELD ASSOCIATES v DEPARTMENT OF PUBLIC HEALTH
    Docket No. 77-1568.
    Submitted February 16, 1978, at Lansing.
    Decided April 18, 1978.
    The Michigan Department of Public Health issued a certification to the Department of Housing and Urban Development that there was no need for an additional nursing home in Southfield where 13-Southfield Associates were planning to build a home and for which it had sought assistance in arranging the financing. Such "no-need” certification foreclosed the possibility of FHA financing for the proposed construction. 13-Southfield Associates sought a hearing before the Public Health Department on the no-need certification, which was denied. 13-South-field Associates then commenced an action against the department and Maurice S. Reizen, M.D., the state Health Director, seeking review of the department’s certification, superintending control and a declaratory judgment on the need for a nursing home and whether plaintiff was entitled to a hearing before the Department of Health. The plaintiffs complaint was dismissed on the basis that circuit court lacked jurisdiction to review an agency’s action absent a record at the agency level, Oakland County Circuit Court, Richard D. Kuhn, J. Plaintiff appeals. Held:

    Plaintiff had no right to a hearing before the department concerning the need for the proposed nursing home and the resultant lack of a record prevents review of that factual determination. Appeal is available, but is limited to whether the department’s action was authorized by law, an issue not contested by plaintiff. Superintending control is not available where another adequate remedy is available, and it was in this case. The trial court did not abuse its discretion in denying declaratory relief to plaintiff.
    Affirmed.
    References for Points in Headnotes
    [1-3] 2 Am Jur 2d, Administrative Law § 403.

       2 Am Jur 2d, Administrative Law §§ 697, 698.

       1 Am Jur 2d, Administrative Law § 21.

       22 Am Jur 2d, Declaratory Judgments § 9.

      1. Administrative Law — State Agency — Right to a Hearing— Nursing Homes — Health Department — Certification of Need — Statutes.
    There is no statutory right to a hearing before the designated state agency under the Federal statutory provisions which require that a state agency provide a certification of need for a proposed nursing home before the Department of Housing and Urban Development will consider an application for FHA mortgage insurance on that proposed nursing home (12 USC 1715w, 42 USC 291d).
    2. Property — Constitutional Law — Property Interest — Due Process Protection — Nursing Home — Certification of Need— FHA Mortgage Insurance.
    A plaintiff who has been denied FHA mortgage insurance for the construction of a nursing home because the Department of Public Health certified that there was no need for the proposed nursing home has suffered no deprivation of a property interest deserving due process protection; where a plaintiff has failed to show a legitimate claim of entitlement to the benefit desired, denial of that benefit does not require due process protection.
    3. Administrative Law — Administrative Procedures Act — Department of Health — Certification of Need — Nursing Home— Hearing — Contested Case — Statutes.
    The issuance or denial of certification by the Department of Health as to the need for a nursing home in a specified area is not a "contested case” under the Administrative Procedures Act as no evidentiary hearing is required by law; therefore, judicial review of the Department’s issuance of a no-need certificate is unavailable (MCLA 24.301; MSA 3.560[201]).
    4. Administrative Law — Judicial Review — Agency’s Determination — Constitutional Law — Statutes.
    Review under the statute which provides for an appeal to circuit court from any order, decision or opinion of any state board, commission or agency from which an appeal or other judicial review has not been otherwise provided by law is not de novo, but is limited in scope to whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent material and substantial evidence on the whole record (Const 1963, art 6, § 28, MCLA 600.631; MSA 27A.631).
    5. Courts — Superintending Control — Inadequate Remedy — Right to Appeal.
    Superintending control is not available where there is a right to appeal, even though the scope of review on appeal is quite narrow, and where there are no extraordinary circumstances making review by appeal an inadequate remedy (GCR 1963, 711).
    6. Courts — Superintending Control — Administrative Law — Agency’s Determination — Lack op Record.
    Superintending control is unavailable for review of an agency’s factual determination where there is no record for the court to consider.
    7. Courts — Powers—Declaratory Judgment — Court Rules.
    Circuit courts have the power to issue declaratory judgments; however, that power is discretionary (GCR 1963, 521.1).

      Hyman, Gurwin, Nachman, Friedman & Winkelman (by Irwin M. Alterman), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone, Frank J. Pipp and David L. Kaser, Assistants Attorney General, for defendants.
    Before: Banhof, C. J., and Bronson and N. J. Lambros, JJ.

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

   Bronson, J.

The issue in this case is whether plaintiff can obtain review of defendant Michigan Department of Public Health’s (Public Health) certification to the Department of Housing and Urban Development (HUD) that there existed no need for the nursing home plaintiff planned to construct.

Plaintiff planned to build a nursing home in Southfield. After purchasing land, it attempted to arrange financing for the construction. In the course of arranging financing, plaintiff applied to HUD for FHA mortgage insurance. HUD responded that plaintiff had to submit a certificate of need for the nursing home from Public Health to obtain the mortgage insurance. Public Health then certified to HUD that there was no need for nursing home beds in the area in which plaintiff planned to build, based on its state plan for health care facilities construction and the existence of other projects. Plaintiff asserts that as FHA mortgage insurance was therefore unavailable, financing was impossible to obtain.

Plaintiff sought a hearing on the no need certification before Public Health, which was denied. Plaintiff then filed the instant action in circuit court, seeking review of the agency’s certification, superintending control and declaratory judgment on the need for a nursing home and whether plaintiff was entitled to a hearing before Public Health. Plaintiff’s complaint was dismissed, on defendants’ motion, on the basis that circuit court lacked jurisdiction to review an agency’s action absent a record at the agency level. Plaintiff appeals as of right.

I. The right to an agency hearing.

A. Statutory right to a hearing.

Plaintiff’s argument regarding the statutory right to a hearing on Public Health’s "no need” certification is without merit. 12 USC 1715w(d)(4), which requires that the state agency noted in 42 USC 291d(a)(l) certify need for a facility before insurance may be issued, does not provide for a hearing regarding such certification. Nor is a right to a hearing mentioned in the rest of 12 USC 1715w.

Plaintiff’s attempt to use the hearing provisions of 42 USC 291d(a)(9) is unconvincing. That statute is part of a statutory scheme whereby money is allocated to the states, 42 USC 291a, for purposes of health care facility construction and modernization. See 42 USC 291. Under this scheme, a designated state agency, which in this state is Public Health, may formulate a plan which includes a survey of the need for the various types of facilities throughout the state. 42 USC 291d. After approval by the state agency and the attendant right to a hearing, 42 USC 291d(a)(9), final approval by the Surgeon General entitles an applicant to Federal funds allocated to the state.

Obviously, this scheme is quite distinct from that provided by 12 USC 1715w. The only common factor is that 12 USC 1715w refers to 42 USC 291d to determine the appropriate agency to certify need. Since 42 USC 291d also provides for the formulation of a comprehensive state plan, it is only natural that the agency formulating such a plan be the agency passing upon the "need” for a given facility. There is nothing in 12 USC 1715w or 42 USC 291d to imply that the hearing provision in the latter statute should be grafted upon the former. The other statutes cited by plaintiff also do not apply to the instant case.

B. Due process right to a hearing.

Plaintiff contends that due process mandates a hearing before Public Health as that agency’s certification to HUD deprived it of a property interest. We hold that there is no constitutional right to a hearing in the case at bar.

The United States Supreme Court recently defined the "property” interests which are protected by a due process right to a hearing. See Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972), Board of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972).

In Roth, the Court held that an untenured college professor did not have a property interest in reemployment after not being rehired, because he did not have a "legitimate claim of entitlement” to continued employment. Cf. Perry v Sindermann, supra. The Court in Roth held:

"Certain attributes of 'property’ interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.” Board of Regents v Roth, supra, at 577.

The Michigan Supreme Court applied the Roth definition in Bisco's Inc v Liquor Control Commission, 395 Mich 706; 238 NW2d 166 (1976), Bundo v Walled Lake, 395 Mich 679; 238 NW2d 154 (1976), holding that renewal of a liquor license is a "property” interest entitled to the due process protection of notice and a hearing. In both cases, the Court held that the licensee had a "legitimate claim of entitlement” to renewal of the license.

In the case at bar, we find that plaintiff has demonstrated no deprivation of a property interest deserving due process protection. Plaintiff could have no reasonable expectation that it would obtain mortgage insurance from HUD, because such insurance was conditional on a certification of need by Public Health. Likewise, determination that need for a nursing home existed could not be reasonably anticipated; that determination depended on Public Health’s assessment of the availability of nursing home beds in the area and projected future use. As plaintiff has failed to show a legitimate claim of entitlement to the benefit desired, denial of that benefit does not require due process protection. Plaintiff has no due process right to a hearing before Public Health.

II. Jurisdiction of circuit court to review Public Health’s "no need” certifícation

In part I of this opinion, we held that plaintiff had no right to a hearing before Public Health concerning the need for a nursing home in South-field. Consequently, any review of the agency’s determination cannot be dependent on the existence of a record — there is none now nor, in the absence of a right to a hearing, can plaintiff compel the development of a record. The absence of a record significantly narrows the possibility of review on the grounds advanced by plaintiff.

A. Administrative Procedures Act.

MCLA 24.301; MSA 3.560(201) provides for judicial review of an agency’s final decision or order in a "contested case”. A "contested case” is defined as:

"[A] proceeding, including but not limited to rate-making, price-fixing and licensing, in which determination of the legal rights, duties or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.” MCLA 24.203; MSA 3.560(103).

The need certification in the case at bar was not a "contested case”, as no evidentiary hearing was required by law. Thus, judicial review under MCLA 24.301; MSA 3.560(201) was unavailable. See Bisco’s, Inc v Liquor Control Commission, supra, at 719-721 (Levin, J., concurring), Kelly Downs, Inc v Racing Commission, 60 Mich App 539; 231 NW2d 443 (1975).

B. Statutory right to appeal.

MCLA 600.631; MSA 27A.631 provides:

"An appeal shall lie from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham county, which court shall have and exercise jurisdiction with respect thereto as in nonjury cases. Such appeals shall be made in accordance with the rules of the supreme court.”

Review under this statute is not de novo, but is limited in scope to "whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record”. Const 1963, art 6, § 28; Viculin v Department of Civil Service, 386 Mich 375, 392; 192 NW2d 449 (1971). As no hearing was required, the circuit court could not review the evidentiary support for Public Health’s "no need” determination. That court, limited to reviewing whether the agency’s action was "authorized by law”, could not grant the relief sought by plaintiff under MCLA 600.631; MSA 27A.631.

C. Superintending control.

GCR 1963, 711 provides for superintending control over lower courts and tribunals where no other adequate remedy is available. See GCR 1963, 711.2. In the case at bar, plaintiff has a right to appeal under MCLA 600.631; MSA 27A.631, even though the scope of review on appeal, in the absence of a hearing, is quite narrow. Therefore, superintending control is not available where there are no extraordinary circumstances making review by appeal an inadequate remedy. 4 Honigman & Hawkins, Michigan Court Rules Annotated, 59 (1967). As we hold that the lower court was not presented with such extraordinary circumstances, denial of relief under GCR 1963, 711 was proper.

In addition, superintending control is unavailable for review of an agency’s factual determination where there is no record for the court to consider. Lepofsky v Lincoln Park, 48 Mich App 347; 210 NW2d 517 (1973), Drouillard v Roseville, 9 Mich App 239; 156 NW2d 628 (1967). Here, it is Public Health’s factual determination that no need existed for the proposed nursing home from which plaintiff seeks review. Because there is no record, review of that determination is impossible.

D. Declaratory judgment.

Under GCR 1963, 521.1, circuit courts have the power to issue declaratory judgments. That power is discretionary; 521.1 states that a circuit court "may declare the rights and other legal relations of any interested party”. See, also, 2 Honigman & Hawkins, Michigan Court Rules Annotated, 688-690 (1963).

In the case at bar, plaintiff has a remedy, albeit a limited one, under MCLA 600.631; MSA 27A.631. Furthermore, as plaintiff has no right to a hearing before Public Health, a review of its factual no need determination is not possible in a declaratory judgment action. As Public Health is designated to determine need administratively, circuit court should not undertake an independent investigation of the need for the proposed facility. In this context, we hold that denying plaintiff declaratory relief was not an abuse of discretion. See 2 Honigman & Hawkins, Michigan Court Rules Annotated, 690 (1963).

In conclusion, we hold that plaintiff had no right to a hearing before Public Health concerning the need for the proposed nursing home. The resultant lack of a record prevents review of that factual determination. Appeal is available under MCLA 600.631; MSA 27A.631, but is limited to whether the agency’s action was authorized by law, an issue not contested by plaintiff. The trial court did not err in refusing to review Public Health’s action under the other grounds on which plaintiff relies.

Affirmed. Costs to appellees.

       12 USC 1715w(d)(4) provides in part:
      "The Secretary shall not insure any mortgage under this section unless he has received, from the State agency designated in accordance with section 291d(a)(l) of Title 42 for the State in which is located the nursing home or intermediate care facility or combined nursing home and intermediate care facility covered by the mortgage, a certification that (A) there is a need for such home or facility or combined home and facility.”
      Public Health is the agency charged under 42 USC 291d(a)(l) with developing a state plan describing, among other things, the need for health care facilities for the purpose of state participation in HUD’s program of grants and loans for the construction and modernization of health care facilities. See 42 USC 291a et seq. Public Health found no need for plaintiffs project on the basis of this plan.
      While 42 USC 291d(a)(9) requires Public Health to afford applicants for construction or modernization projects an opportunity for a hearing, that requirement does not mandate a hearing in the case at bar, as plaintiff is not proceeding under 42 USC 291d and is not applying for a grant or loan under section 291.

        See note 1, supra.

       US Const, Am XIV; Const 1963, art 1, § 17.

       Plaintiff asserts that Public Health’s Master Plan for development of health care facilities could be considered a record. We disagree; absent a hearing, there can be no record. Cf. MCLA 24.286; MSA 3.560(186).

       MCLA 24.201; MSA 3.560(101).

       See GCR 1963, 706.1, which provides that appeals under the statute are governed by GCR 1963, 701 and 702, except that no bond under 701.7 is required.

         Plaintiff does not contend that Public Health’s action was not authorized by law. It clearly was authorized by 12 USC 1715w.

       Plaintiff did not argue below or on appeal that Public Health’s Master Plan for health care facilities was a "rule” under MCLA 24.207; MSA 3.560(107) and that the no need certification was a declaratory ruling which was reviewable under MCLA 24.263; MSA 3.560(163). See Greenfield Construction Co, Inc v Department of State Highways, 402 Mich 172; 261 NW2d 718 (1978) (opinion of Levin, J.). We therefore do not address this issue.


author: D. E. Holbrook, Jr., J.

text:
    SKIDMORE v CZAPIGA
    Docket No. 77-1685.
    Submitted February 9, 1978, at Lansing.
    Decided April 18, 1978.
    Leave to appeal applied for.
    Roseann L. Skidmore brought a paternity action charging Walter J. Czapiga with being the father of her child and seeking an order of filiation and support. The Genesee County Circuit Court, Earl E. Borradaile, J., entered an order of filiation. Defendant appeals. He claims that he was not required to have given a notice of intent to claim "alibi” as a defense. Held:

    A defendant in a paternity action is not required to give notice of his intent to claim "alibi” as a defense in such action.
    Reversed and remanded.
    1. Statutes — Felony—Definition—Words and Phrases.
    The term "felony” is defined, in part, as an offense for which the offender, on conviction, may be punished by death, or by imprisonment in a state prison (MCLA 750.7; MSA 28.197).
    2. Statutes — Construction—Other Statutes.
    Statutes which refer to the same class of persons or things or share a common objective must be interpreted to be complementary and not contradictory.
    3. Statutes — Enactment—Amendment—Legislature’s Knowledge —Presumptions—Existing Statutes — Existing Laws.
    It must be presumed that the Legislature has knowledge of existing statutes and laws when it enacts or amends a statute.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 19, 20, 23.

       73 Am Jur 2d, Statutes § 271 et seq.

       73 Am Jur 2d, Statutes §§ 46, 127-141.

       10 Am Jur 2d, Bastards § 93.
    21 Am Jur 2d, Criminal Law § 137.
    29 Am Jur 2d, Evidence §§ 440,1178.
    Validity and construction of statutes requiring defendant in criminal case to disclose matter as to alibi defense. 45 ALR3d 958.
    Constitutionality, construction, and effect of statute requiring notice to prosecution of accused’s intention to rely upon alibi as defense. 30 ALR2d 480.

      4. Bastards — Trial—Paternity Action — Notice of Defense — Alibi Defense — Felony Cases — Statutes.
    A defendant in a paternity action is not required to give notice of his intent to claim "alibi” as a defense; the statute that requires notice of alibi in a felony case does not apply to a paternity action (MCLA 768.20; MSA 28.1043).

      Robert F. Leonard, Prosecuting Attorney, and Paul G. Miller, Jr., Chief, Support Division, for the plaintiff.

      John N. Pavlis, for defendant.
    Before: N. J. Kaufman, P. J., and D. E. Holbrook, Jr. and D. F. Walsh, JJ.
   D. E. Holbrook, Jr., J.

The instant appeal arises from a non-jury paternity suit following which the trial court entered an order of filiation.

During the course of trial the defendant attempted to present the testimony of three witnesses tending to establish the defense of "alibi”. Following objection by the prosecutor, the trial court ruled such evidence to be inadmissible since defendant had not complied with the notice requirement of the "alibi” statute. MCLA 768.20; MSA 28.1043.

In People v McFadden, 347 Mich 357; 79 NW2d 869 (1956), the Supreme Court held that notice of alibi was required in bastardy proceedings. Since that decision, however, in 1974 the Legislature amended the "alibi” statute limiting the same to "felony” cases. The pertinent portion of such amended statute reads as follows:

"If a defendant in a felony case proposes to offer in his defense testimony to establish an alibi * * * the defendant shall * * * file and serve upon the prosecuting attorney a notice in writing of his intention to claim that defense * * * .”

The prior statute, the one in effect at the time of McFadden, supra, applied to criminal cases not cognizable by a justice of the peace. The Court in McFadden, supra, found bastardy proceedings to be quasi-criminal in nature, held that such cases were not cognizable by a justice of the peace and further held that a defendant in such a proceeding, being entitled to the protection of provisions of the Code of Criminal Procedure, must comply with applicable provisions thereof that are prescribed for the benefit of the public, including notice of the defense of "alibi”, and that the defendant in such proceedings must give notice of his intent to claim the defense in order to introduce evidence thereof at trial.

In MCLA 750.7; MSA 28.197, the term "felony” is defined as follows:

" * * * an offense for which the offender, on conviction may be punished by death, or by imprisonment in state prison.”

That the offender in a paternity suit cannot be so punished is not subject to question. Moreover, statutes which refer to the same class of persons or things or share a common objective must be interpreted to be complementary and not contradictory. Palmer v State Land Office Board, 304 Mich 628; 8 NW2d 664 (1943). Reichert v Peoples State Bank for Savings, 265 Mich 668; 252 NW 484 (1934). Further, the Legislature when enacting or amending a statute must be presumed to have knowledge of existing statutes and laws.

We hold, therefore, because a finding that one is the father of an illegitimate child permits neither a penalty of death nor imprisonment in a state prison that the defendant is no longer required to give notice of his intent to claim "alibi” as a defense in a paternity action.

Reversed and remanded for a new trial.


author: Bronson, P. J.

text:
    QUARDERER v SHIAWASSEE COUNTY DRAIN COMMISSIONER
    Docket No. 77-1782.
    Submitted January 10, 1978, at Lansing.
    Decided April 18, 1978.
    Complaint by George Quarderer against Fred Baker, Shiawassee County Drain Commissioner, and Glen Beebe, Shiawassee County Treasurer, seeking a declaratory judgment that a drain easement acquired by Shiawassee County across plaintiffs land was void and that all proceedings relating to that drain project were void because the court conducting the condemnation proceedings lacked jurisdiction to grant the easement since notice of the proceedings was improperly served on plaintiff and the drain in question was an inter-county drain which was constructed under the authorization of a statute limited to intra-county drains only. The plaintiff also sought a declaration that a special assessment levied on plaintiffs property was null and void and a return of tax payments made under protest and damages. Thelma Quarderer was allowed to intervene as a party plaintiff. The Shiawassee Circuit Court, Peter J. Marutiak, J., found that the drain was not an inter-county drain and granted summary and accelerated judgment for defendants on grounds that the claim was barred by laches since the plaintiff had waited five years after the drain was begun before he commenced his action. Plaintiff appeals. Held:

      Legal notice of condemnation proceedings may be served by; (1) personal service, (2) leaving the citation at the residence of all interested persons, or (3) service by registered mail and publication in a local paper. Since notice in the condemnation case was not served in accordance with the statute, the doctrine of laches was improperly applied by the trial court in this action. The trial court’s finding that the drain was intra-county only, however, was supported by the record.
    Reversed in part, affirmed in part, and remanded.
    References for Points in Headnotes

       27 Am Jur 2d, Eminent Domain §§ 375-378.
    Service of notice: permissible modes of service of notice of eminent domain proceedings. 89 ALR2d 1404.

       27 Am Jur 2d, Eminent Domain § 494.

       27 Am Jur 2d, Eminent Domain §§ 494, 498.

      1. Notice — Statutes—Eminent Domain — Methods of Service.
    The statute prescribing the means for legal notice to be served in proceedings for the condemnation of real property provides for three methods of service; (1) personal service on the parties to be affected, (2) leaving the citation at the residence of all interested persons, and (3) service by registered mail and publication in a local newspaper (MCLA 280.78; MSA 11.1078).
    2. Taxation — Real Property — Special Assessments — Equity—Irregular Proceedings — Clean Hands.
    An owner of property may not sit by while improvements are being made to his property by a public authority under statutory authorization, where he knows that the only method of compensating those who perform the labor is by an assessment for benefits, and then seek redress in an equity court for irregularities in the proceedings after the benefits have been reaped.
    3. Eminent Domain — Defenses—Laches—Notice.
    The doctrine of laches is not applicable against a plaintiff contesting a right of way across his land gained through condemnation proceedings where the plaintiff has properly raised a claim that the condemnation proceedings are void because of insufficient service of notice.

      Robert A. Folen, for plaintiff.

      Chester C. Pierce (Miller, Canñeld, Paddock & Stone, by Charles L. Burleigh, Jr., of counsel), for defendants.
    Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.

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

   Bronson, P. J.

Plaintiff George Quarderer filed a complaint on April 30, 1974, seeking to have all proceedings of defendant drain commissioner relating to the North Creek-Orser Drain declared illegal and void. The complaint also sought a declaration that an easement acquired by defendant drain commissioner and a special assessment levied on plaintiff’s property were null and void. Plaintiff further asked for a return of tax payments made under protest and for damages.

Plaintiff is the owner of an undivided interest in a farm in Shiawassee County. From 1969 to 1972, the sole resident of the farm was plaintiff’s brother, Alphonse Quarderer.

Early in 1969, the Shiawassee County Drain Commissioner filed petitions for the improvement of the North Creek-Orser Drain. A citation inviting owners of affected lands to appear was served by leaving a copy at the residence of Alphonse Quarderer and by publication in a local paper. On July 30, 1969, an appearance by counsel for "Alphonse Quarderer, a single man, et al., by their attorney * * * ” was filed. The drain work was authorized on April 28, 1970. Construction began on July 2, 1970, and was completed on June 23, 1971.

Plaintiff claims that he had no actual knowledge of the drain project until May 7, 1971, when he observed construction on the land.

The property was assessed in 1971, 1972 and 1973; plaintiff made no payments until 1974, when the 1971 assessment was paid under protest.

The trial court held, upon defendants’ motion for "accelerated and summary” judgment, that plaintiff’s action was barred by laches.

Initially, we note that laches is not a proper ground for accelerated judgment; it is not one of the grounds enumerated in GCR 1963, 116.1(5). See Stewart v Troutt, 73 Mich App 378; 251 NW2d 594 (1977). But, see Sharp v Two Point Associates, Ltd, 78 Mich App 180; 259 NW2d 416 (1977). In the case at bar, however, we discern no prejudice to the parties from the hybrid motion for "summary and accelerated” judgment or the mislabeling of the judgment. See Birch Run Nursery v Jemal, 52 Mich App 23; 216 NW2d 488 (1974), rev’d on other grounds, 393 Mich 775; 224 NW2d 282 (1974).

Plaintiffs pleadings appear to raise two main allegations. First, plaintiff contests the condemnation proceedings in probate court in which the county acquired an easement over the property in question, for which plaintiff was awarded $725, on the basis of a conflict of interest of a special commissioner and a lack of notice of those proceedings. As relief for this first allegation, plaintiff asks that the condemnation proceedings and easement be declared null and void and also asks for damages for trespass. Plaintiffs second allegation concerns the jurisdiction of the drain commissioner ab initio; the relief requested is that all drain proceedings in this case be declared null and void and that the resulting tax assessment also be declared void.

The trial court held that all claims advanced by plaintiff were barred by laches. We will address plaintiffs claims separately.

The Condemnation Proceedings.

Plaintiff contends that the condemnation proceedings for acquisition of a right of way across his land were invalid and void because of insufficient service of notice of those proceedings. MCLA 280.78; MSA 11.1078 provides:

"(1) All citations, notices and orders relative to condemnation proceedings, unless otherwise provided, shall be served as follows:
"(a) Personally; or
"(b) By leaving a copy at the residence of the person or persons interested; or
"(c) By mailing a copy thereof by registered mail at the last known post office address of each person or persons, so far as is known; and
"(d) By publication in some newspaper printed or circulated in the county in which such lands are located at least 7 days prior to the date of hearing.
"(2) Nonresidents of the county may be served in any of the above methods.”

Although this statute is somewhat ambiguous, we view it as providing for three methods of service: (1) personal service, (2) leaving the citation at the residence of all interested persons, or (3) service by registered mail, and publication in a local paper. Our interpretation is based on two factors. First, the prior statute on notice required both mailing and publication, if the address of a nonresident landowner could be reasonably ascertained. Second, if such address could be ascertained, notice by publication alone would be constitutionally insufficient. Walker v City of Hutchinson, 352 US 112; 77 S Ct 200; 1 L Ed 2d 178 (1956), cited in International Salt Co v Wayne County Drain Commissioner, 367 Mich 160, 168; 116 NW2d 328 (1962).

The notice given in the case at bar did not comply with MCLA 280.78; MSA 11.1078. As the condemnation proceedings may be void for lack of notice to plaintiff, Walker v City of Hutchinson, supra, the doctrine of laches relied on by the trial court does not apply. See Village of Oak Park v Van Wagoner, 271 Mich 450; 260 NW 743 (1935). See also In re Petition of Auditor General, 332 Mich 77; 50 NW2d 721 (1952). Thus, accelerated (or summary) judgment on plaintiff’s claims relating to the easement acquired in the condemnation proceedings and the allegation of trespass should not have been granted on the basis of laches.

The Drain Proceedings in General and the Tax Assessment.

Plaintiff also alleges a lack of jurisdiction in the case at bar, asserting that the North Creek-Orster Drain is an inter-county drain and that the drain commissioner erroneously proceeded under § 191 of the Drain Code, relating solely to intra-county drains. Accelerated judgment on the basis of laches is generally improper where a plaintiff claims a lack of jurisdiction in a drain proceeding. See Village of Oak Park v Van Wagoner, supra. However, the legal description of the drain which was part of the record below discloses that the drain does not traverse land in more than one county. Thus, the drain commissioner correctly proceeded under MCLA 280.191; MSA 11.1191 in the case at bar. As there was no jurisdictional defect in this regard, the trial court was not foreclosed from dismissing the claim relating to the validity of the proceedings in general and the tax assessment on the basis of laches. See Village of Oak Park v Van Wagoner, supra.

We review this case, as we do all equity cases, de novo, but we will not reverse or modify a trial court’s order unless we are convinced that we would have reached a different result had we been in the position of the trial court. See, e.g, Ford v Howard, 59 Mich App 548; 229 NW2d 841 (1975). In the case at bar, as we are not convinced that we would have reached a different result, we affirm the trial court’s order dismissing plaintiffs claims relating to the validity of the tax assessment and all proceedings other than the condemnation action.

In sum, we reverse this case only as to those claims relating to the validity of the condemnation proceedings; the other aspects of the trial court’s order are affirmed. We need not discuss plaintiffs issue concerning Thelma Quarderer and Mary Ross, as orders allowing them to intervene and file complaints have been entered below.

Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. No costs, neither party having prevailed in full.

       An "amended complaint” was filed on July 11, 1974.

       Plaintiff alleged that a special commissioner who participated in the condemnation proceedings had previously appraised plaintiff’s property and that the condemnation award was improperly influenced by the prior appraisal. In view of our disposition of the notice claim, we need not address this issue here.

       The method of service actually used in this case was not disputed; the parties agree that the citation was delivered to the residence of Alphonse Quarderer and published in a local newspaper. There apparently is also no dispute that the addresses of plaintiff and intervenors were known.
      As the notice given did not comply with statutory requirements, we need not address the constitutional issue advanced by plaintiff.

       We express no opinion on whether plaintiff had actual notice of the proceedings before May, 1971, an issue apparently not resolved by the trial court and which was disputed by the parties. See In re Fitch Drain No 129, 346 Mich 639; 78 NW2d 600 (1956).

       The Court in Village of Oak Park distinguished cases in which laches was held to bar actions based on nonjurisdictional defects in drain proceedings:
      " 'The rule is well settled in this and other jurisdictions, that where the owner of property sits by while improvements are being made under statutory authority, knowing that the only method of compensating those who perform the labor is by an assessment for benefits, cannot, after the benefits have been reaped, resort to a court of equity for redress for irregularities in the proceedings. Harwood v. Huntoon, Drain Commissioner, 51 Mich. 639; Hall v. Slaybaugh, 69 Mich. 484; Moore v. McIntyre, 110 Mich. 237; Township of Walker v. Thomas, 123 Mich. 290; Township of Swan Creek v. Brown, 130 Mich. 382; Watson v. Fox, supra.

      " 'A different rule applies, however, where the proceedings are void, because then a jurisdictional question is involved, which may be raised at any state of the proceedings.’ ” 271 Mich at 455.

       MCLA 280.191; MSA 11.1191. MCLA 280.192; MSA 11.1192 relates to inter-county drains.


author: D. C. Riley, J.

text:
    CHISNELL v CHISNELL
    Docket No. 77-2096.
    Submitted February 23, 1978, at Detroit.
    Decided April 18, 1978.
    Leave to appeal applied for.
    Beatrice M. Chisnell filed for and was granted a divorce from Robert L. Chisnell. In its judgment of divorce the Macomb County Circuit Court, Hunter D. Stair, J., ordered that neither party receive alimony and that all the marital property be sold and the net proceeds be divided equally. The court further awarded plaintiff one-half of the defendant’s net monthly military retirement pay as a part of the property settlement. Defendant appeals. Held:

    1. Military retirement pay is a marital asset which is to be considered and may be divided as a part of a property settlement in a divorce.
    2. Fault is still a proper consideration in matters of property division, notwithstanding Michigan’s no-fault divorce laws.
    Affirmed.
    1. Divorce — Property Settlements — Marital Assets — Military Retirement Pay.
    A husband’s military retirement pay is a marital asset, divisible upon divorce; military retirement pay is primarily deferred compensation for services rendered prior to retirement, and a plaintiff wife in an action for divorce has, through her contribution to the marriage, obtained an interest in the marital asset of the earned retirement pay.
    2. Constitutional Law — Divorce—Property Settlements — Marital Assets — Military Retirement Pay.
    A finding that military retirement pay is a marital asset divisible upon divorce does not conflict with the supremacy clause of the Constitution by interfering with the exclusive power of Congress to raise and support armies (US Const, art VI, § 2).

      References for Points in Headnotes

       24 Am Jur 2d, Divorce and Separation §§ 632, 639, 723.

       New Topic Service, Am Jur 2d, No-Fault Divorce §§ 20, 22, 26.

       24 Am Jur 2d, Divorce and Separation §§ 573, 579-581, 583, 584, 587, 588, 596.
    Divorce: wife’s right to award of counsel fees in final judgment of trial or appellate court as affected by fact that judgment was rendered against her. 32 ALR3d 1227.
    Husband’s right to alimony, maintenance, suit money, or attorney’s fees. 66 ALR2d 876.

      3. Divorce — Fault—Division of Property — Judge’s Discretion— Abuse of Discretion.
    Fault is still a consideration in matters of property division, notwithstanding Michigan’s no-fault divorce laws, and the consideration by a trial court of fault when determining a property division will not be disturbed absent a showing of an abuse of discretion.
    4. Divorce — Attorney’s Fees — Judge’s Discretion.
    The granting of attorney fees in a divorce action is a matter of the trial court’s discretion.

      Thomas J. McCallum, for plaintiff.

      Daner, Freeman, McKenzie & Matthews, P. C. (by Gary E. Gendernalik), for defendant.
    Before: J. H. Gillis, P. J., and Bashara and D. C. Riley, JJ.
   D. C. Riley, J.

This case involves an issue of first impression in Michigan; i.e., the treatment of military retirement pay in a divorce proceeding. The issue focuses on the question of whether the trial court erred in awarding plaintiff a one-half interest in defendant’s net retirement benefits as part of a property settlement where no provision was made for alimony.

Defendant entered the United States Army in 1949 but he left the military in 1953. He re-enlisted in 1955, just prior to his marriage to plaintiff, and retired in 1972 as Chief Warrant Officer, fourth class.

No children were born of this marriage. The parties owned two lots and accumulated personal property, including several cars, a boat, a camper and a car trailer, some of which were encumbered by loans. In 1975, the plaintiff filed her complaint for divorce.

Following a bench trial, the court awarded plaintiff a divorce providing that neither party receive alimony and that all of the marital property be sold, with the proceeds going first to settle the liens on the property and the remainder to be divided equally between the parties.

The court found that defendant, by virtue of his years of military service, was receiving military retirement pay of $9600 per year. After deducting 20 per cent of this amount for taxes, the court awarded plaintiff, as part of the property settlement, one-half of the net amount, or $320 per month. The payments were ordered to continue until the death of either party.

Defendant contends on appeal that military retirement pay is not a marital asset subject to division in a divorce action property settlement. He argues that the retirement pay is analagous to wages, which can only be considered as a factor in granting alimony. Since no alimony was awarded here, defendant argues, plaintiff has no interest in the net retirement pay.

Although no Michigan case has precisely decided this issue, the parties have referred us to several cases from other jurisdictions where the question has been reached with conflicting results. Our analysis of these decisions leads us to the conclusion that, although the question is subject to considerable debate with defensible arguments on both sides of the issue, the trial court below correctly held that the retirement pay was an asset of the marriage subject to a property division.

It appears to be the uniform holding of the community property states that military retirement pay is community property, subject to division upon divorce. The most comprehensive such opinion is that of the California Supreme Court in In re Marriage of Fithian, 10 Cal 3d 592; 111 Cal Rptr 369; 517 P2d 449 (1974).

The Fithian Court stated that under their community property law, retirement benefits which are earned by one spouse as an element of compensation earned for work done during the course of the marriage are divisible upon dissolution of the marriage. Thus, the threshold issue was whether military retirement pay was intended as deferred compensation for the person’s service prior to retirement, or . payment for the limited status of the person after retirement. The Fithian Court held:

"[Military retirement pay must be realistically viewed as compensation for past, not present, services. Congress’ purpose in creating the retirement pay system was to enhance the morale of the serviceman and to encourage him to remain in the military, and not to compensate him for his limited responsibility to the government after his retirement. Indeed, the amount of retirement pay a serviceman receives bears no relation to any continuing duties after retirement, but is calculated solely on the basis of the number of years served on active duty and the rank attained prior to retirement. (10 U. S. C. § 6323(e).) Moreover, should the serviceman actually be recalled to active duty, he is not only additionally compensated according to the active duty pay scale, but his rate of retirement pay is also increased thereafter. (10 U. S. C. § 1402.) The conclusion is inescapable that retirement pay is awarded in return for services previously rendered and therefore is divisible as community property to the extent the serviceman was married while on active duty.” 10 Cal 3d at 604; 111 Cal Rptr at 376-377; 517 P2d at 456-457.

The Court in Fithian did not feel that this result was affected by the fact that the officer had not contributed, either directly or in the form of a payroll deduction, to the fund out of which the retirement pay is disbursed. The Court found the question of contribution irrelevant to the ultimate characterization of the benefits.

"Although the retirement fund was noncontributory, husband’s rights to the benefits vested during marriage and constituted an integral part of his compensation for service in the military.” 10 Cal 3d at 596; 111 Cal Rptr at 371; 517 P2d at 451.

Community property states are not the only jurisdictions to rule that military retirement pay is an asset of the marriage, divisible upon divorce. In Kruger v Kruger, 139 NJ Super 413; 354 A2d 340 (1976), the Superior Court of New Jersey, Appellate Division, held that the trial court had correctly distributed a share of the husband’s retirement pay to the wife as a portion of the property division. No alimony was awarded.

The Kruger Court first considered the practical and financial aspects of terming such pay as an asset of the marriage rather than income to the husband. The Court then cited from a number of community property cases, including Fithian, supra, which held the pay to be a marital asset.

The Kruger Court held:

"We therefore conclude that both the retired pay and disability benefits which defendant husband has become irrevocably entitled to receive for the balance of his life constitute assets subject to equitable distribution to the extent that his entitlement thereto is based upon military service rendered during the existence of the marriage.” 139 NJ Super at 420; 354 A2d at 344.

We recognize that the result reached by the Courts in Fithian, supra, and Kruger, supra, is by no means universal. Several jurisdictions have held military retirement pay to be an equivalent to wages, thereby constituting income to the retired spouse that is unavailable for distribution in a property settlement. In United States v Williams, — Md App —; 370 A2d 1134 (1977), the Maryland Court of Appeals, after having the question certified to them by the United States District Court, held that for the purposes of Maryland divorce law military retirement pay constitutes wages subject to garnishment for payment of an arrearage in alimony. A similar result was reached in Watson v Watson, 424 F Supp 866 (EDNC, 1976), although the state’s garnishment law altered the disposition of the case.

In In re Marriage of Ellis, 36 Colo App 234; 538 P2d 1347 (1975), affirmed — Colo —; 552 P2d 506 (1976), the Colorado Court held that military retirement pay is not marital property since "[a]t no time has it any cash surrender, loan, redemption, or lump sum value”. 36 Colo App at 236; 538 P2d at 1349.

Although, as we have stated, no Michigan case has ruled specifically on this issue, the contrasting points of view in the previously cited cases were discussed by this Court in Hutchins v Hutchins, 71 Mich App 361; 248 NW2d 272 (1976). In Hutchins, the issue was the treatment of the husband’s pension from the Michigan State Police. The Court noted that the pension question was one of first impression, so it turned to a consideration of analagous areas of law and to decisions of other states:

"In our research in community and noncommunity property states, we find the courts holding that state pensions, private pensions, profit-sharing trust and military pensions could be properly distributed as property under a decree of divorce.” (Emphasis added.) 71 Mich App at 365.

After discussing several of the cases concerning military retirement pay, and cases dealing with other forms of pensions, the Hutchins Court concluded:

"Returning to the Michigan public safety department pension, accident and disability fund leads us, as do other jurisdictions with similar statutes, to the conclusion that it also treats the accumulated deductions in the husband’s account in a manner which makes them marital property. Here, the plaintiff-husband’s interest was created in most part from his salary, and we agree with the defendant-wife that these deductions would have been available to the parties during their marriage to be invested in stocks, bonds, savings account, annuity and/or other investments. The plaintiff-husband’s right in the fund is fully vested and cannot be subjected to divestment or forfeiture, except as herein noted for breach of the public trust. We also hold that it is property that came to the plaintiff by reason of the marriage and therefore should be included in the total assets of the parties. As in New Jersey, our divorce laws make no reference to vesting. See MCLA 552.1 et seq.; MSA 25.81 et seq. Therefore, it must be included as an asset in the distribution of property.” 71 Mich App at 370-371.

In the present case, we are persuaded by the decisions in Fithian, supra, Kruger, supra, and by analogy in Hutchins, supra, that defendant’s military retirement pay was correctly categorized as a marital asset and included within the property settlement. As the Hutchins Court states, vesting is not a relevant consideration in our divorce laws. We find, as did the Court in Fithian, that military retirement pay is primarily deferred compensation for services rendered prior to retirement. This being the case, the fact that defendant did not have to contribute to a retirement pay fund does not distinguish this type of pension from that in Hutchins. Congress could have eliminated the retirement pay system and increased the rate of pay during active service. Since the decision was made to provide for retirement benefits, the deferred compensation was not available to the parties during defendant’s active service for use in other investments. Therefore, plaintiff, through her contribution to the marriage, obtained an interest in the marital asset of the earned retirement pay. Hutchins, supra.

Defendant also contends that a decision by this Court that the retirement pay is a marital asset will conflict with the supremacy clause of the United States Constitution by interfering with Congress’ exclusive power to raise and support armies. We note that this contention was answered contrary to defendant’s assertions in In re Marriage of Fithian, supra, 10 Cal 3d at 596-599; 111 Cal Rptr at 371-373; 517 P2d at 451-453. We concur in that reasoning and find no violation of the supremacy clause.

Defendant asserts that the division of property was inequitable and that the court should not have considered fault when making the property division. Fault is still a consideration in matters of property division, notwithstanding Michigan’s no-fault divorce laws. Kretzschmar v Kretzschmar, 48 Mich App 279; 210 NW2d 352 (1973). Our reading of the record shows that the court considered fault in calculating the property division. Absent a showing of abuse of discretion, which has not been made here, we will not disturb the court’s decision. See Dougherty v Dougherty, 48 Mich App 154; 210 NW2d 151 (1973), Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956).

Defendant finally challenges the trial court’s award of $650 in attorney fees to plaintiff. Again, the granting of attorney fees in a divorce action is a matter of discretion. Gove v Gove, 71 Mich App 431; 248 NW2d 573 (1976). We find no abuse of that discretion in the present case.

Affirmed.

Costs to appellee.

        Dominey v Dominey, 481 SW2d 473 (Tex Civ App, 1972), Busby v Busby, 457 SW2d 551 (Tex, 1970), LeClert v LeClert, 80 NM 235; 453 P2d 755 (1969), Wilder v Wilder, 85 Wash 2d 364; 534 P2d 1355 (1975), Ramsey v Ramsey, 96 Idaho 672; 535 P2d 53 (1975).

       On retired status, the officer is subject to recall to active status, can be court-martialed for certain conduct and thereby lose the retirement pay, and is subject to various other provisions of Federal law. See Ables v Ables, 540 SW2d 769 (Tex Civ App, 1976). See also, Watson v Watson, 424 F Supp 866 (EDNC 1976).

       These considerations include the tax treatment of property divided upon divorce as opposed to alimony and the wife’s right to receive payments after remarriage. In addition, if the pay was treated as income, the entire amount would be available for computation of alimony. If treated as an asset, the wife would have an interest only in that amount of pay that was earned during the years of marriage.

       We note that, consistent with the decision in In re Marriage of Fithian, 10 Cal 3d 592; 111 Cal Rptr 369; 517 P2d 449 (1974), the trial court expressly stated that plaintiffs interest in the retirement pay will cease upon either the death of defendant or her death, whichever occurs first.

       US Const, art VI, § 2.


author: T. M. Burns, J.

text:
    MAGLAUGHLIN v LIBERTY MUTUAL INSURANCE COMPANY
    Docket No. 77-2439.
    Submitted December 7, 1977, at Grand Rapids.—
    Decided April 18, 1978.
    Leave to appeal applied for.
    Plaintiff Beverly Maglaughlin petitioned for workmen’s compensation benefits and received a favorable decision from an administrative law judge. The defendant Liberty Mutual Insurance Company, her employer’s compensation carrier, refused to pay any benefits pending an appeal to the Workmen’s Compensation Appeal Board. Plaintiff filed suit in Kent County Circuit Court seeking compensatory and exemplary or punitive damages based on defendant’s failure to pay any benefits. The circuit court, Roman J. Snow, J., granted defendant’s motion for accelerated judgment for lack of subject matter jurisdiction. Plaintiff appeals. Held:

    Questions of compensation, compensation procedure, and the remedy for failure to follow that procedure are statutorily established and are to be determined by the Workmen’s Compensation Bureau rather than the circuit court.
    Affirmed.
    1. Workmen’s Compensation — Benefits—Administrative Law — Appeals — Dismissal—Statutes.
    A workmen’s compensation claimant is entitled to 70% of the weekly benefits required by the terms of a hearing referee’s award during the pendency of an appeal from such award; a failure to pay that amount may result in the dismissal of the appeal (MCLA 418.862; MSA 17.237[862]).
    2. Workmen’s Compensation — Jurisdiction—Workmen’s Compensation Bureau — Circuit Courts — Administrative Law — Statutes.
    Questions of compensation, compensation procedure, and the remedy for failure to follow that procedure are statutorily established and are to be determined by the Workmen’s Compensation Bureau, rather than the circuit courts; the resolution of all disputes relating to workmen’s compensation is vested exclusively in the bureau (MCLA 418.841; MSA 17.237[841]).

      References for Points in Headnotes

       81 Am Jur 2d, Workmen’s Compensation §§ 26, 79-82. 82 Am Jur 2d, Workmen’s Compensation §§ 476-479, 607, 609.

      3. Workmen’s Compensation — Jurisdiction—Administrative Law— Awards — Appeals—Statutes.
    The questions of whether a workmen’s compensation carrier must pay benefits awarded by an administrative law judge during the pendency of an appeal to the Workmen’s Compensation Appeal Board, and the relief available for failure to do so, are questions for the Workmen’s Compensation Bureau to decide (MCLA 418.841; MSA 17.237[841]).

      McCroskey, Libner, VanLeuven, Feldman, Kortering, Cochrane & Brock, P. C. (by Seymour L. Muskovitz), for plaintiff.

      Smith, Haughey, Rice & Roegge (by David O. Haughey and John W. Raven), for defendant.
    Before: Danhof, C. J., and M. J. Kelly and T. M. Burns, JJ.
   T. M. Burns, J.

The question in this case is whether the circuit court has subject-matter jurisdiction to hear a suit brought by a worker’s compensation claimant alleging tortious conduct by her employer’s compensation carrier in refusing to pay benefits pending an appeal to the Workmen’s Compensation Appeal Board (hereafter the WCAB). The cirucit court held that the question of payment of compensation benefits pending an administrative appeal was within the exclusive jurisdiction of the compensation bureau, MCLA 418.841; MSA 17.237(841), and granted defendant’s motion for accelerated judgment, GCR 1963, 116.1(2).

I

Plaintiff petitioned for benefits under the Worker’s Disability Compensation Act, MCLA 418.101 et seq.; MSA 17.237(101) et seq., and received a favorable decision from the administrative law judge on March 30, 1976. Defendant timely filed an appeal from that decision and did not pay any of the benefits awarded by the administrative law judge. The decision of the WCAB is still pending.

This suit was filed on September 27, 1976. In her one-count complaint, plaintiff sought recovery of $750,000 for compensatory and exemplary or punitive damages based on the carrier’s failure to pay any benefits pending the appeal before the WCAB. The basis of recovery was variously described as intentional or negligent infliction of mental distress, "bad faith”, and "economic oppression”, but it is clear, as plaintiff states in her brief in this Court, that the basis of the circuit court action is the failure of defendant to pay compensation benefits pending the compensation appeal.

Shortly after this action was begun, the WCAB ordered defendant to pay 70% of the weekly benefits pending the WCAB decision or face dismissal of that appeal under 1975 PA 34; MCLA 418.862; MSA 17.237(862). The WCAB’s action was based on the Supreme Court’s order in Michigan Self-Insurers’ Association v Workmen’s Compensation Bureau, 397 Mich 859; 245 NW2d 334 (1976), which required that 1975 PA 34 be enforced pending a decision in that case.

II

MCLA 418.841; MSA 17.237(841) provides in part:

"Any controversy concerning compensation shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau.”

Under this provision "resolution of all disputes relating to workmen’s compensation is vested exclusively in the Workmen’s Compensation Bureau”. St. Paul Fire & Marine Insurance Co v Littky, 60 Mich App 375, 378; 230 NW2d 440 (1975). Whether payment of benefits are to be made by the carrier during the pendency of an appeal from an administrative law judge’s decision, and the relief available for failure to do so, are questions for the bureau within this provision.

This does not deprive plaintiff of a remedy for the type of conduct attributed to defendant here. Under MCLA 418.862; MSA 17.237(862) plaintiff is entitled to 70% of her weekly benefits pending the administrative appeal, and a failure to pay that amount may result in the dismissal of the appeal. This statute was recently determined to be constitutional when applied in this manner. McAvoy v H B Sherman Co, 401 Mich 419; 258 NW2d 414 (1977). Rather than begin this suit in circuit court or ask the bureau for damages for failure to pay benefits pending the administrative appeal, plaintiff should have sought 70% of her benefits or dismissal of the appeal from the WCAB.

Ill

To avoid confusion, it may be wise to make clear what this case does not involve. This case does not involve the exclusive remedy provisions of the act. MCLA 418.131; MSA 17.237(131). It does not determine what type of conduct gives rise to a circuit court action against an employer or the employer’s carrier or the extent of the carrier’s immunity through the employer. See, e.g., Stimson v Michigan Bell Telephone Co, 77 Mich App 361; 258 NW2d 227 (1977).

This case simply reaffirms the proposition that questions of compensation, compensation procedure, and the remedy for failure to follow that procedure are statutorily established and are to be determined by the bureau, rather than the circuit court. Szydlowski v General Motors Corp, 397 Mich 356; 245 NW2d 26 (1976).

Affirmed. No costs.


author: D. F. Walsh, P. J. Beasley, J.

text:
    PEOPLE v HOOPER
    Docket No. 77-2524.
    Submitted January 5, 1978, at Grand Rapids.—
    Decided April 18, 1978.
    Leave to appeal applied for.
    Leon Hooper was convicted of armed robbery in Kalamazoo County Circuit Court, Donald T. Anderson, J. He appealed. Affirmed, 62 Mich App 181; 233 NW2d 225 (1975). The Supreme Court in lieu of leave to appeal reversed the conviction and remanded for a new trial, 395 Mich 807; 235 NW2d 745 (1975). On retrial, defendant was again convicted and now appeals this second conviction contending that the trial court abused its discretion by refusing his request for a different attorney, based on a disagreement with his appointed counsel over the use of an alibi defense and the calling of on alibi witness, when it ruled that there was no adequate reason for replacing the attorney originally assigned to defendant. Held:

    Substitute counsel should be appointed where there has been a breakdown between defendant and appointed counsel which is based upon substantial grounds, such as asserting an alibi defense; in this case, there was a genuine disagreement over the use of a substantial defense, and defendant’s request for a different attorney should have been granted.
    Reversed and remanded.
    Beasley, J., dissents on the ground that there was no abuse of discretion in refusing defendant’s request for substitution of counsel because defendant deliberately tried to delay and disrupt the trial, the attorney exercised professional judgment in not asserting an alibi defense and not calling an alibi witness, the disagreement between counsel and defendant did not deny defendant the use of a substantial defense, and did not present adequate cause for substitution of appointed counsel.
    Opinion of the Court
    References for Points in Headnotes
    [1-4] 21 Am Jur 2d, Criminal Law §§ 318-323.
    Indigent accused’s right to choose particular counsel to assist him. 66 ALR3d 996.
    Constitutionally protected right of indigent accused to appointment of counsel in state court prosecutions. 93 ALR2d 747.

      1. Criminal Law — Attorney and Client — Indigent Defendant— Right to Counsel — Breakdown in Relationship — Successor Counsel.
    An indigent defendant is not entitled to choose his own attorney simply by requesting that the attorney originally appointed be replaced; where there has been a breakdown in the relationship between a defendant and assigned counsel, however, and that breakdown is based upon substantial grounds successor counsel should be appointed.
    2. Criminal Law — Attorney and Client — Indigent Defendant— Disagreement with Counsel — Successor Counsel.
    Generally, disagreements involving professional judgment as to trial strategy do not constitute substantial grounds for appointment of successor counsel.
    3. Constitutional Law — Criminal Law — Attorney and Client— Right To Counsel — Disagreement with Counsel — Successor Counsel.
    The jealous protection with which the law guards an accused’s right to counsel requires appointment of a new attorney where there is genuine disagreement over the use of a substantial defense, such as alibi, in a criminal prosecution.
    Dissent by Beasley, J.
    4. Criminal Law — Attorney and Client — Indigent Defendant— Right to Counsel — Trial—Procedural Disagreement — Substitution of Counsel.

      A trial judge did not abuse his discretion in refusing a defendant’s request for substitution of counsel where the record indicates a deliberate studied effort by defendant to delay and disrupt his trial by making a belated claim at the time of jury selection that he wanted to assert an alibi defense, which was an obviously spurious effort to delay the trial since no notice of alibi had been given, there was no dereliction of duty or cause for discharge, and refusal to call defendant’s suggested alibi witness was a wise exercise of professional judgment and trial strategy which was likely in the best interests of defendant; under these circumstances, the disagreement between counsel and defendant did not deny defendant the use of a substantial defense and did not present adequate cause for substitution of appointed counsel.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Stephen M. Wheeler, Chief of Appellate Division, for the people.

      DeVries & Lamb, P. C., for defendant.
    Before: D. F. Walsh, P. J., and R. M. Maher and Beasley, JJ.
   D. F. Walsh, P. J.

Defendant was charged with armed robbery. MCLA 750.529; MSA 28.797. He was tried by a jury, convicted and sentenced to a term of 8 to 20 years imprisonment. He appealed and was granted a new trial. People v Hooper, 395 Mich 807; 235 NW2d 745 (1975), reversing 62 Mich App 181; 233 NW2d 225 (1975). On retrial, he was again convicted and again sentenced to 8 to 20 years in prison. He now appeals his second conviction.

On the second day of his second trial, defendant expressed dissatisfaction with the attorney assigned to represent him and requested the trial court to appoint a different attorney. The court made careful inquiry as to the basis for defendant’s dissatisfaction, hearing from both the defendant and assigned counsel. Thereafter he ruled that there was no adequate reason for replacing the attorney originally assigned and denied the request.

An indigent defendant is not entitled to choose his own attorney simply by requesting that the attorney originally appointed be replaced. Where there has been a breakdown in the relationship between defendant and assigned counsel, however, and that breakdown is based upon substantial grounds successor counsel should be appointed. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

Defendant in this case stated that he wished to assert an alibi defense requiring the testimony of a witness defense counsel was unwilling to call. Defense counsel confirmed that defendant had requested that the alibi defense be used but that he (defense counsel) rejected the request because, in his judgment, it would not have been in the defendant’s best interests. The witness was not subpoenaed.

Normally, as the trial court properly ruled, disagreements involving professional judgment as to trial strategy do not constitute substantial grounds for appointment of successor counsel. The jealous protection with which the law guards an accused’s right to counsel, however, requires appointment of a new attorney when there is genuine disagreement over the use of a substantial defense, such as alibi, in a criminal prosecution. People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972).

Since such a dispute existed in this case, defendant’s request for substitution of counsel should have been granted. Accordingly, we must reverse and grant new trial.

Reversed.

R. M. Maher, J., concurred.

Beasley, J.

(dissenting). I respectfully dissent.

My reading of the record indicates a deliberate, studied effort by defendant to delay and disrupt his trial. The trial judge acted with commendable patience in considering defendant’s effort to delay the on-going trial by an effort to fire his court-appointed counsel. There is no indication that defense counsel was derelict in his duty; no good cause was shown for his discharge.

On this record, I would find defendant’s belated claim at the time of jury selection that he wanted to assert an alibi defense, where no notice of alibi had been given, was an obviously spurious effort to delay the trial.

In addition, it should be noted that the witness whom defense counsel was unwilling to call, Sandra Callington, was a witness at defendant’s first trial on this charge. At that trial, she testified that defendant had been at her home on the evening of the robbery and had remained there until sometime between 1:00 and 1:30 in the morning. She admitted, however, that she recalled this only on the prompting of her husband. Evidence also indicated that defendant had been arrested before 1:00 on the morning in question, rendering the time sequence testified to by Mrs. Callington impossible. Given these circumstances, it would seem that counsel’s unwillingness to call Mrs. Callington as a witness at defendant’s second trial was based on sound reasons. Counsel indicated he had read the transcript from the previous trial twice; he should not be faulted for an apparently wise exercise of his professional judgment as to trial strategy.

Disagreement between counsel and defendant did not, under the circumstances, deny defendant the use of a substantial defense, and, since refusal to call the disputed witness was likely in the best interests of defendant, the disagreement did not present adequate cause for substitution of appointed counsel. I would hold that there was no abuse of discretion by the trial judge in refusing defendant’s request for substitution of counsel.

Defendant’s other claims of error are equally without merit.

I would affirm.

        See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services, §5.3.

        People v Thompson, 69 Mich App 465; 245 NW2d 93 (1976).

        Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959).


author: Per Curiam.

text:
    PEOPLE v BLAIR
    Docket No. 29055.
    Submitted February 8, 1978, at Lansing.
    Decided April 18,1978.
    Robert J. Blair was convicted of statutory rape in Washtenaw County Circuit Court, Edward D. Deake, J. Defendant appeals, contending among other things that the prosecutor committed prejudicial error by asking various defense witnesses if they believed in God. Held:

    Such questioning, absent any corrective action by the trial judge, constitutes reversible error.
    Reversed and remanded.
    Witnesses — Criminal Law — Prosecutor’s Questions — Belief in God —Appeal and Error.
    Questioning of witnesses by a prosecutor regarding whether the witnesses or the defendant were "religious” or "God-fearing” constitutes reversible error where no action is taken by the trial judge to correct the improper questions.
    References for Points in Headnote
    81 Am Jur 2d, Witnesses §§ 87, 533.
    Propriety and prejudicial effect of impeaching witness by reference to religious belief or lack of it. 76 ALR3d 539.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, John J. Hensel, Senior Assistant Prosecuting Attorney, and Elizabeth Osgood Pollard, Assistant Prosecuting Attorney, for the people.

      George W. Parker, for defendant on appeal.
    Before: N. J. Kaufman, P. J., and D. E. Holbrook, Jr. and D. F. Walsh, JJ.
   Per Curiam.

Defendant was tried by jury and convicted of statutory rape. MCLA 750.520; MSA 28.788. Thereafter sentenced to a prison term of not less than 10 nor more than 20 years, defendant appeals as of right.

While defendant raises numerous issues on appeal one is dispositive and mandates reversal.

During the course of the trial the prosecutor asked: (1) defendant’s wife if she was a "God fearing woman”; (2) defendant’s sister if the defendant was a "religious man”; and (3) defendant’s mother if defendant was a "God fearing man”.

Questions such as the above are of the nature condemned and held to be reversible error in People v Hall, 391 Mich 175; 215 NW2d 166 (1974), and People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977). Nor can defendant’s conviction be saved by People v Burton, 401 Mich 415, 418; 258 NW2d 58 (1977), where swift action on the part of the trial judge cured any error. Unlike Burton, supra, nothing was done by the trial judge, in the instant case, to correct the obviously improper questions by the prosecutor.

Resolution of the foregoing issue being dispositive, discussion of defendant’s remaining allegations of error is rendered unnecessary.

Reversed and remanded for a new trial.


author: Per Curiam:

text:
    MIELKE v MICHIGAN MILLERS MUTUAL INSURANCE COMPANY
    Docket No. 30914.
    Submitted October 6, 1977, at Grand Rapids.—
    Decided April 18, 1978.
    Leave to appeal applied for.
    Beverly Mielke, individually and as next friend of Jennifer Mielke, Christine Crumley and Deborah Crumley, the survivors of Theodore S. Mielke, who was fatally injured in an automobile accident, filed a complaint against his insurer, Michigan Millers Mutual Insurance Company, seeking a declaratory judgment that the governmental benefits set-off provision of Michigan’s no-fault insurance act is unconstitutional, and that, therefore, the insurer should not be allowed to enforce its policy provision allowing the reduction of the insurer’s liability for personal protection benefits due the plaintiffs by the amount of Social Security survivor’s benefits received by them. The Berrien County Circuit Court, Chester J. Byrns, J., granted plaintiff’s motion for summary judgment on the ground that the statutory provision was unconstitutional. Defendant appeals. Held:

    The section of the no-fault insurance act requiring benefits, which state or Federal law provide or require to be provided, to be subtracted from any recovery under a no-fault automobile policy but which does not require such subtraction where the additional benefits are voluntarily contracted for by the insured is unconstitutional because it discriminates against the class of insureds entitled to benefits required by the state or Federal law as well as ño-fault recovery, by forcing them to purchase insurance on which they cannot recover, so that other insureds may enjoy lower premiums for insurance on which they can recover.
    Affirmed.
    Constitutional Law — Equal Protection — Insurance—Automobiles — No-Fault—Duplicate Benefits — Required Coverage— Voluntary Coverage — Statutes.
    The section of the no-fault insurance act requiring benefits provided under state or Federal law, or required to be provided, to be subtracted from any recovery under a no-fault automobile policy but which does not require such subtraction where the additional benefits are voluntarily contracted for by the insured is unconstitutional because it discriminates against the class of insureds entitled to benefits required by the state or Federal law as well as no-fault recovery by forcing them to purchase insurance on which they cannot recover so that other insureds may enjoy lower premiums (MCLA 500.3109; MSA 24.13109[1]).

      References for Points in Headnote
    New Topic Service, No-Fault Insurance §§ 1, 22.
    16 Am Jur 2d, Constitutional Law §§ 488, 494-497.

      Keller, Keller, Creager, Kosick & Rochau, for plaintiff.

      Butzbaugh, Page, Butzbaugh & Dewane, for defendant.
    Before: M. F. Cavanagh, P. J., and Bronson and M. J. Kelly, JJ.
   Per Curiam:

Defendant appeals as of right from an order granting plaintiffs summary judgment motion on the basis that the governmental benefits set-off provision of Michigan’s no-fault insurance act, MCLA 500.3109(1); MSA 24.13109(1), is unconstitutional. Defendant, plaintiffs insurer, reduced payments due plaintiff by the amount of Social Security survivor’s benefits received by plaintiff.

This case is controlled by Pollock v Frankenmuth Mutual Insurance Co, 79 Mich App 218; 261 NW2d 554 (1977). Pollock involved a set-off for workmen’s compensation benefits. Its reasoning is equally applicable to a set-off for Social Security benefits.

We also note that Richardson v Belcher, 404 US 78; 92 S Ct 254; 30 L Ed 2d 231 (1971), is inapposite, as that case found a rational basis for a Federal set-off statute in the need to preserve state workmen’s compensation programs, a consideration not applicable to the case at bar.

Affirmed. Costs to appellee.