author: J. H. Gillis, P. J. Beasley, J.

text:
    MAY v LENEAIR
    Docket No. 78-2766.
    Submitted April 2, 1980, at Detroit.
    Decided August 11, 1980.
    Alan A. May, as guardian of the estate of defendant Lucille Leneair, previously adjudged mentally incompetent, brought an action seeking a judicial declaration as to the validity of defendant Leneair’s marriage to defendant Joseph A. Rice. Defendants moved for summary judgment, which motion was granted, the Wayne Circuit Court, Horace W. Gilmore, J., ruling that as a matter of law defendant Leneair had competency to marry. Plaintiff appeals. Held:

    Defendant Leneair had been adjudged mentally incompetent prior to her marriage and, thus, falls within the statutory marriage prohibition. In addition, such a marriage is deemed invalid by case law and is void. Plaintiff, therefore, stated a claim upon which relief could be granted, requiring a trial on the merits. The grant of summary judgment by the trial court constitutes error.
    Reversed and remanded.
    Beasley, J., dissented. He would hold that the remedy of declaratory judgment is not available to adjudicate the validity of a putative marriage; rather, the proceeding should be in the form of an annulment action between the parties. He would reverse the trial court’s grant of summary judgment and remand for dismissal of plaintiffs complaint, or, should plaintiff elect to amend his entitlement and pleadings to bring an action for annulment, for trial on the merits.

      References for Points in Headnotes
    [I] 61 Am Jur 2d, Pleading § 229 et seq.

    [2, 4] 52 Am Jur 2d, Marriage §§ 17,19.
    [3] 41 Am Jur 2d, Incompetent Persons § 1.
    [5] 5 Am Jur 2d, Appeal and Error § 726.
    Formal requirements of judgment or order as regards appealability. 73 ALR2d 250.
    [6,12, 13] 22 Am Jur 2d, Declaratory Judgments § 59.
    [7] 4 Am Jur 2d, Annulment of Marriage § 59.
    [8] 24 Am Jur 2d, Divorce and Separation § 477.
    [9] 4 Am Jur 2d, Annulment of Marriage § 71.
    24 Am Jur 2d, Divorce and Separation § 271.
    [10] 22 Am Jur 2d, Declaratory Judgments §§ 11, 79.
    [II] 4 Am Jur 2d, Annulment of Marriage § 74.
    Power of incompetent spouse’s guardian, committee, or next friend to sue for granting or vacation of divorce or annulment of marriage, or to make a compromise or settlement in such suit. 6 ALR3d 681.

      Opinion of the Court
    1. Judgments — Summary Judgment — Pleadings — Legal Basis — Factual Allegations — Denial.
    A motion for summary judgment on the ground that the opposing party has failed to state a claim upon which relief can be granted is to be tested upon review by the pleadings alone, looking to the legal basis of the complaint, not whether it can be factually supported; the factual allegations are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged, and, unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion should be denied (GCR 1963, 117.2[1]).
    2. Mental Health — Incompetence — Marriage Prohibition — Statutes.
    A person who has been adjudicated mentally incompetent falls within the statutory marriage prohibition (MCL 551.6; MSA 25.6).
    3. Mental Health — Incompetence — Definition.
    A mentally incompetent person is one who is so affected mentally as to be deprived of sane and normal action or who lacks sufficient capacity to understand in a reasonable manner the nature and effect of the act he is performing.
    4. Mental Health — Incompetence — Marriage Contracts — Validity.
    Marriage is a civil contract to which the consent of parties capable in law of contracting is essential; however, while an incompetent is under actual and subsisting guardianships of estate, he is conclusively presumed incompetent to make a valid contract, thus, an adjudicated mental incompetent cannot enter a valid marriage, and such an attempted marriage is void.
    5. Appeal — Limited Review — Issues Not Decided.
    The Court of Appeals is limited on review to issues decided by the lower court, and issues raised and presented but not decided by the lower court cannot be heard on appeal.
    Dissent by Beasley, J.
    .6. Judgments — Declaratory Judgments — Annulment of Marriage.
    ' A declaratory judgment holding a marriage to be void is different than a judgment annulling a pretended marriage; the marriage would not be annulled, and the legal effect of the declaratory judgment would be to say that if an annulment action were brought the marriage would be annulled.

    7. Courts — Equity Jurisdiction — Annulment of Marriage.

      Annulment can arise from the inherent equity jurisdiction which circuit courts derive from the constitution without the necessity of statute where it is not prohibited by law.

    8. Divorce —’ Judgments — Collateral Attack.

      A divorce judgment may not be collaterally attacked.

    9. Actions — Real Parties in Interest — Marriage — Annulment — Divorce.

      The real parties in interest in any annulment or divorce action are the parties to the marriage.

    10. Actions — Declaratory Relief — Real Party in Interest.

      An action for declaratory relief may be brought only by a party with an interest in the subject matter and against a defendant with a similar interest.

    11. Actions — Annulment of Marriage — Incompetents — Real Party in Interest — Guardians — Plaintiffs and Defendants.

      An annulment action brought by a guardian on behalf of an incompetent must be in the name of the incompetent as plaintiff, and not in the name of the guardian as plaintiff, naming the incompetent and the partner to the alleged marriage as defendants.

    12. Actions — Declaratory Judgments — Marriage — Annulments.

      Declaratory judgments concerning the validity of a marriage should not be permitted; the proceeding should be in the form of an annulment action between the parties where there is a necessity to litigate the validity of a marriage.

      13. Actions — Collateral Attack — Validity of Marriage — Declaratory Judgment.

      A third party may not collaterally attack the validity of a marriage by way of a declaratory judgment.

      Charles Alpert, for plaintiff.

      Elbert E. Cooper, for defendants.
    Before: J. H. Gillxs, P.J., and Allen and Beasley, JJ.
   J. H. Gillis, P. J.

Plaintiff, as guardian of the estate of Lucille Leneair, commenced the present action seeking a judicial declaration as to the validity or invalidity of the defendants’ marriage.

Plaintiff’s complaint alleged the following relevant facts:

That on November 9, 1970, Ms. Leneair was adjudicated to be a mentally incompetent person in an order of the Wayne County Probate Court,

That on July 15, 1975, Ms. Leneair filed a petition in Wayne County Probate Court seeking restoration of her competency,

That on July 18, 1975, the defendants were married,

That on July 16, 1976, at the conclusion of a jury trial held pursuant to Ms. Leneair’s petition, she was found to be then and there mentally incompetent to handle her own affairs, and

That plaintiff believes that the marriage was invalid ab initio and, therefore, seeks a determination of validity or invalidity of the marriage.

On March 17, 1977, the defendants filed a motion for summary judgment, GCR 1963, 117.2. The motion failed to state which subsection of the rule it was brought under. The motion was granted, the lower court ruling that as a matter of law Ms. Leneair had competency to marry. Plaintiff appeals from the order entered pursuant to that ruling.

An examination of the order granting defendants’ motion shows that the motion was granted because plaintiff failed to state a cause of action. That is the reason set forth in GCR 1963, 117.2(1). Accordingly, we shall review the grant of summary judgment under that subrule.

The standard governing this Court’s review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Bormans, Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972), Partrich v Muscat, 84 Mich App 724, 729-730; 270 NW2d 506 (1978).

MCL 551.6; MSA 25.6 provides in relevant part:

"No person * * * who has been adjudged insane, feeble-minded or an imbecile by a court of competent jurisdiction, shall be capable of contracting marriage without, before the issuance by the county clerk of the license to marry, filing in the office of the county clerk a verified certificate from 2 regularly licensed physicians of this state that such person has been cured of such insanity, imbecility or feeble-mindedness.”

It is undisputed that Ms. Leneair never filed the required certificate. It is also undisputed that she had been adjudicated a mental incompetent prior to her marriage. The question becomes whether one who has been adjudicated a mental incompetent falls within the statutory marriage prohibition. The answer is that such a person does.

A mentally incompetent person is one who is so affected mentally as to be deprived of sane and normal action or who lacks sufficient capacity to understand in a reasonable manner the nature and effect of the act he is performing. Dayiantis v Blackhawk, Inc, 33 Mich App 201, 203; 189 NW2d 808 (1971), citing In re Johnson’s Estate, 286 Mich 213; 281 NW 597 (1938). Feeble-mindedness is defined as the least severe grade of mental deficiency, Stedman’s Medical Dictionary (Unabridged Lawyers’ Edition 1961), and as a condition of incomplete development of mind of such degree or kind as to render the individual incapable of adjusting himself to his social environment in a reasonably efficient and harmonious manner and to necessitate external care, supervision, or control. 41 Am Jur 2d, Incompetent Persons, § 2, p 542.

Since the Legislature intended to bar one found to be suffering from the least severe grade of mental deficiency, an adjudged feeble-minded person, from marriage, it is reasonable to conclude that they intended to bar those suffering from more severe grades of mentally deficiency from marriage. An examination of the definition of a mentally incompetent person above cited indicates that such a person necessarily falls within the latter class. Accordingly, we hold that an adjudication of mental incompetency is a bar to a subsequent marriage under MCL 551.6; MSA 25.6.

Furthermore, the same result, that an adjudication of mental incompetency bars a subsequent marriage, obtains independently of the statute.

In Acacia Mutual Life Ins Co v Jago, 280 Mich 360, 362; 273 NW 599 (1937), the Supreme Court stated:

"[WJhile an * * * incompetent is under actual and subsisting guardianship of estate, he is conclusively presumed incompetent to make a valid contract.” (Emphasis supplied.)

Marriage is a civil contract to which the consent of parties capable in law of contracting is essential. Yanoff v Yanoff, 237 Mich 383, 387; 211 NW 735 (1927), overruled on other grounds in Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), MCL 551.2; MSA 25.2, 16 Michigan Law & Practice, Marriage, § 4, p 100. Therefore, an adjudicated mental incompetent cannot enter a valid marriage.

The question becomes whether the marriage here, which is prohibited by statute and deemed invalid by case law, is voidable or void. The answer is that it is void.

The cardinal rule of statutory construction is to ascertain and give effect to the intention of the Legislature. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956). MCL 551.6; MSA 25.6 further provides:

"Any person of sound mind who shall intermarry with such * * * person * * * who has been so adjudged * * * feeble-minded * * * except upon the filing of certificate as herein provided, with knowledge of the disability of such person, or who shall advise, aid, abet, cause, procure or assist in procuring any such marriage contrary to the provisions of this section is guilty of a felony

It is apparent that the objective of the statute is to absolutely prohibit a marriage such as that in the instant case. Thus, in order to best effect that statutory purpose, Lake Carriers’ Ass’n v MacMullan, 91 Mich App 357, 366; 282 NW2d 486 (1979), we hold that the marriage here is void.

In the present case, plaintiff properly alleged the prior adjudication of mental incompetency of Ms. Leneair and her subsequent marriage. He, thus, stated a claim upon which relief, a declaration of the invalidity of the marriage, could be granted. GCR 1963, 117.2(1). The grant of summary judgment was erroneous. The case is remanded to the lower court for a trial on the merits.

The parties attempt to raise additional issues which were presented to the lower court but, due to the granting of summary judgment, were not decided. The Court of Appeals is limited on review to issues decided by the lower court. Norton Shores v Carr, 81 Mich App 715, 723; 265 NW2d 802 (1978), Hernandez v Consumers Power Co, 51 Mich App 288; 214 NW2d 846 (1974).

Reversed and remanded.

Allen, J., concurred.

Beasley, J.

(dissenting). I respectfully dissent.

In this case, plaintiff, Alan A. May, as guardian of the estate of Lucille Leneair, an adjudged mentally incompetent person, filed a complaint for declaratory judgment to determine the validity of a claimed marriage between his ward, Lucille Leneair, at a time when she was allegedly adjudged a mentally incompetent person, and defendant Joseph Andree Rice. Defendants filed a motion for summary judgment, alleging that the statutory remedy of declaratory judgment is not a proper way to test the validity of a marriage, that the question of the competency of the codefendant at the time of the attempted marriage cannot be properly raised in a motion for summary judgment so as to void the marriage, and that plaintiff, as guardian, is without standing to bring suit against his ward. After hearing oral argument and reviewing briefs filed by the parties, the trial judge held, as a matter of law, that defendant, Lucille Leneair, was competent to enter into the marriage and, therefore, granted the motion for summary judgment. He also stated:

"I just want to say as a footnote, although I am not ruling on this, I have some very serious question as to the standing of the guardian to bring this, but that is not necessary for decision, so I am not ruling on it, but I am ruling that she is capable of contracting marriage.”

On appeal, the majority holds that the statute prohibits a person adjudicated mentally incompetent from contracting a lawful marriage. The decision of the majority rests upon the premise that the parties’ attempted marriage was void rather than voidable. The majority then states:

"[P]laintiff properly alleged the prior adjudication of mental incompetency of Ms. Leneair and her subsequent marriage. He [plaintiff-guardian], thus, stated a claim upon which relief, a declaration of the invalidity of the marriage, could be granted. GCR 1963, 117.2(1).”

The effect of the majority’s decision is to remand this case to the trial court for trial to determine whether or not plaintiff-guardian may obtain a declaratory judgment establishing that the parties’ attempted marriage is void and invalid.

The posture of the trial will be unusual because the guardian, as plaintiff, will carry the burden of proof to prove that the marriage which defendants his ward, Lucille Leneair, and Joseph A. Rice entered into is void. If plaintiff succeeds, presumably a declaratory judgment holding the purported marriage to be void would be entered.

But, it should be noted that a declaratory judgment holding a marriage to be void is a different judicial animal than a judgment annulling a pretended marriage. The marriage would not be annulled; the legal effect of such a declaratory judgment is to say that if an annulment action were brought the marriage would be annuled.

In Michigan, while divorce is totally statutory, annulment can arise from the inherent equity jurisdiction which the basic trial (circuit) courts derive from the constitution without the necessity of statute where it is not prohibited by law. Thus, in Romatz v Romatz, the Michigan Supreme Court expanded the jurisdiction of the Michigan courts to affirm annulment of a putative marriage that had taken place in Ohio.

Marriage is defined by statute to be a civil contract to which the consent of parties capable in law of contracting is essential. The statute is quite specific in specifying some who are incapable of contracting marriage as follows:

"No insane person, idiot, * * * shall be capable of contracting marriage. * * * No person who has been confined in any public institution or asylum as a feeble-minded, imbecile or insane patient, or who has been adjudged insane, feeble-minded or an imbecile by a court of competent jurisdiction, shall be capable of contracting marriage without, before the issuance by the county clerk of the license to marry, filing in the office of the county clerk a verified certificate from 2 regularly licensed physicians of this state that such person has been completely cured of such insanity, imbecility or feeble-mindedness and that there is no probability that such person will transmit any of such defects or disabilities to the issue of such marriage.”*

It is this statute upon which the majority bases reversal of the grant of summary judgment by the trial court.

The statutes also provide as follows:

"All marriages * * * solemnized when either of the parties was insane or an idiot, shall, if solemnized within this state, be absolutely void.”
"When a marriage is supposed to be void, or the validity thereof is doubted, for any of the causes mentioned in the two [2] preceding sections, either party, excepting in the cases where a contrary provision is hereinafter made, may file a petition or bill in the circuit court of the county where the parties, or one of them, reside, or in the court of chancery, for annulling the same, and such petition or bill shall be filed and proceedings shall be had thereon, as in the case of a petition or bill filed in said court for a divorce; and upon due proof of the nullity of the marriage, it shall be declared void by a decree or sentence of nullity.”
"When the validity of any marriage shall be denied or doubted by either of the parties, the other party may file a bill or petition in the manner aforesaid, for affirming the marriage; and upon due proof of the validity thereof, it shall be declared by a decree or sentence of the court; and such degree, unless reversed on appeal, shall be conclusive upon all persons concerned.”

These texts would seem to indicate that only a party to a putative marriage may bring an action to annul it. For example, 55 CJS, Marriage, § 54, p 933 provides:

"Annulment for insanity may be had only at the suit of one of the parties to the marriage. Where the party seeking annulment is insane, the suit should generally be brought by his guardian or next friend, on behalf of the ward, and the insane person becomes a necessary party. A guardian has no authority, in the absence of statute, to maintain an action in his own name to set aside his ward’s marriage on the ground of insanity.” (Emphasis added; footnotes omitted.)

Of similar thrust is 4 Am Jur 2d, Annulment of Marriage, § 71, p 489, which provides:

"The right to annul a voidable marriage is a personal right and the action for annulment of such a marriage can be maintained only by a party to the marriage contract or, where the spouse seeking annulment is under legal disability, by some one in his or her behalf or by the person designated by statute. Some statutes expressly require that a suit to annul a voidable marriage be brought and prosecuted by the party laboring under the disability claimed to render the marriage voidable. A third person cannot, as a general rule, maintain an action to annul a marriage which is merely voidable. In some cases, the child of the parties has been made a party to the proceeding where annulment was sought.
"Where the marriage is void and not merely voidable the general rule is that either party — the guilty as well as the innocent party — may sue for annulment, as where at the time the marriage ceremony was performed one of the parties was married to a third person, for public policy favors the declaration of nullity of a void marriage.” (Footnotes omitted.)

And 4 Am Jur 2d, Annulment of Marriage, § 74, p 491 provides:

"Under the practice in most states, an action to annul a marriage on grounds of mental incompetency may be brought by a relative or next friend of the incompetent spouse, or by the guardian, committee, or conservator of the incompetent. The right of the guardian to bring the annulment suit is justified because property rights of the ward which it is the duty of the guardian to protect are affected. Since an action for annulment is based, not on the voluntary decision of the plaintiff to dissolve the marriage, but on the fact of lack of capacity to consummate it, the rule which denies the right of the guardian or conservator of an incompetent to bring suit for divorce is not controlling. Some courts, however, deny the right of the guardian or committee of the incompetent to bring the annulment action, usually for the reason that the controlling statute provides for suit by the incompetent through his next friend or guardian ad litem or by a relative.” (Footnotes omitted.)

Sections 35 and 36 of Chapter 552 of the Michigan Divorce statutes provide as follows:

"Sec. 35. A bill to annul a marriage on the ground of insanity or idiocy, may be exhibited by any person admitted by the court to prosecute as the next friend of such idiot or lunatic.”
"Sec. 36. The marriage of a lunatic may also be declared void, upon the application of the lunatic, after the restoration of reason; but in such case, no sentence of nullity shall be pronounced, if it shall appear that the parties freely cohabited as husband and wife, after the lunatic was restored to a sound mind.”

While Michigan decisions regarding attempted collateral attacks on marriages that have been annulled are scarce, if not nonexistent, the law seems clear that a divorce judgment may not be collaterally attacked. In White v Michigan Life Ins Co, in a suit to decide whether life insurance proceeds would go to the second wife or to the first wife by virtue of a provision in a divorce judgment, this Court said:

"A divorce judgment may not be collaterally attacked. However, the courts of this state have frequently held that it is proper to construe a divorce judgment providing for an adjustment of property rights when the intended disposition requires clarification.” (Emphasis added.)

Of similar import is Couyoumjian v Anspach, where the Supreme Court said:

"[T]he validity of the decree of divorce could not be collaterally attacked by third parties except for lack of jurisdiction.”

In general, I would believe that this rule prohibiting collateral attack on divorce judgments applies also to annulment judgments; they cannot be attacked collaterally.

GCR 1963, 201.5(1) relates to the power of a guardian to sue as follows:

"Representation. Whenever an * * * incompetent person has a guardian of his estate, actions may be brought and shall be defended by such guardian in behalf of the * * * incompetent person.”

It should also be noted that GCR 1963, 201.2, which has been codified, spells out the real party in interest provision as follows:

"Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest; but [a] * * * guardian * * * may sue in his own name without joining with him the party for whose benefit the action was brought.”

In any annulment or divorce action the real parties in interest would appear to be the parties to the marriage.

In this case, plaintiff seeks a declaratory judgment under GCR 1963, 521. An action for declaratory relief may be brought only by a party with an interest in the subject matter and against a defendant with a similar interest. The rule that every action must be prosecuted in the name of the real party in interest has been applied to actions for declaratory relief.

Since Lucille Leneair is the real party in interest in any litigation concerning the validity of her attempted marriage to Joseph A. Rice, she should be a party to any such action. While, in view of the adjudication of her mental incompetency, the annulment action would need to be brought by her guardian, it must be in her name as plaintiff, rather than a suit brought by her guardian against herself and Joseph A. Rice. But this is more than a mere procedural objection or a situation requiring realignment of parties.

I do not believe that a declaratory judgment concerning the validity of a marriage can or should be permitted. When there is necessity to litigate the validity of a marriage, the proceeding should be in the form of an annulment action between the parties, not one for declaratory judgment.

In summary, I believe that plaintiff guardian had standing to bring a suit for annulment of the purported marriage on behalf of his ward against defendant, Joseph A. Rice.

I do not believe that the remedy of declaratory judgment is available to adjudicate the validity of a putative marriage. A third party may not collaterally attack the validity of a marriage by way of a declaratory judgment.

In this case, plaintiff guardian may only obtain a trial of his ward’s annulment case against Joseph A. Rice if he amends his entitlement to indicate a case for annulment by plaintiff as guardian of Lucille Leneair, a mentally incompetent person, against Joseph A. Rice. Only in this way can there be a trial on the merits between the real parties in interest, and only in this way can there be a judgment binding on the parties annulling their putative marriage.

In general, I am in accord with the majority’s analysis of the statutes holding that the mental incompetency of Lucille Leneair prohibits her contracting a lawful marriage. Thus, for the reasons indicated, I would reverse the trial court’s grant of summary judgment under GCR 1963, 117.2(1) and remand to the trial court to dismiss plaintiffs complaint unless he elects to amend his entitlement and pleadings to bring his case into conformance with this opinion. If he did so amend, then the annulment case would be set down for trial on the merits.

      A mentally incompetent person may be one who possesses a high intelligence quotient and who may have completed university training but due to his present state of mind is incapable of rationalizing some of his thoughts or actions.

       See, MCL 551.6; MSA 25.6.

        Id.

       355 Mich 81; 94 NW2d 432 (1959).

        Sovereign v Sovereign, 354 Mich 65; 92 NW2d 585 (1958).

       MCL 551.2; MSA 25.2.

       MCL 551.6; MSA 25.6.

       MCL 552.1; MSA 25.81.

       MCL 552.3; MSA 25.83.

      MCL 552.4; MSA 25.84.

       MCL 552.35; MSA 25.111.

       MCL 552.36; MSA 25.112.

       43 Mich App 653, 657; 204 NW2d 772 (1972).

       360 Mich 371, 386; 103 NW2d 587 (1960).

       MCL 600.2041; MSA 27A.2041.

        Molinero v Driver, 364 Mich 341; 111 NW2d 50 (1961), City of Flint v Consumers Power Co, 290 Mich 305; 287 NW 475 (1939).


source: Caselaw Access Project

author: Mackenzie, P.J.

license: Public Domain

text:
    KNIGHT v STATE OF MICHIGAN
    Docket No. 78-3075.
    Submitted March 12, 1980, at Lansing.
    Decided August 11, 1980.
    Plaintiffs, William H. Knight and Berneice V. Knight, individually and doing business as Island Road Farms, brought an action for damages against defendants, State of Michigan and Director of the Michigan Department of Mental Health, charging that defendants were negligent or made negligent or intentional misrepresentations in the placement of a mental patient on plaintiffs’ dairy farm without disclosing his alleged fire-setting propensities. Recovery was sought in the Court of Claims for damages from a fire which destroyed the entire contents of plaintiffs’ barn on the evening of January 12, 1970. Trial on the liability issue only resulted in judgment of no cause of action, Robert E. A. Boyle, J. Plaintiffs appeal. Held:

    1. The exclusion from evidence, in a civil case, of a statement against penal interest made by a mental patient without having first been given Miranda warnings is within the discretion of the trial judge. The issue is whether, under the totality of the circumstances, the statement was knowing and voluntary.
    2. Although mental illness or infirmity can constitute unavailability for purposes of the hearsay rule, there must be a showing that the mental illness or infirmity would ¡prevent the declarant from being able to testify truthfully before a hearsay statement against the penal interest of the declarant will be admissible as an exception under the rules of evidence.
    3. The trial court did not err in holding that an isolated unsubstantiated episode of fire-setting during childhood was an insufficient foundation for a finding that the mental patient was a pyromaniac.

      References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 76.
    5 Am Jur 2d, Appeal and Error §§ 833-835, 839-846.
    [2] 29 Am Jur 2d, Evidence § 410. .
    [3] 29 Am Jur 2d, Evidence §§ 618, 620.
    [4] 5 Am Jur 2d, Appeal and Error § 819.
    [5] 57 Am Jur 2d, Negligence § 32.
    [6, 7] 39 Am Jur 2d, Guardian and Ward § 188.
    Liability of one releasing institutionalized mental patient for harm he causes. 38 ALR3d 699.
    [8] 37 Am Jur 2d, Fraud and Deceit § 12.

      4. It was error for the trial court to find damages had not been proven, since the parties had agreed to try the issue of damages separately; however, such error was harmless.
    5. A defendant cannot be held liable for the tortious acts of a third party unless the tortious act committed was foreseeable and defendant failed to exercise reasonable care under the circumstances. Plaintiffs failed to meet their burden of proving that the act committed was foreseeable or that defendant failed to exercise reasonable care under the circumstances.
    Affirmed.
    1. Appeal — Findings of Fact — Court Rules.
    Findings of fact of the trial court will not be set aside unless clearly erroneous; a finding is clearly erroneous where, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed (GCR 1963, 517.1).
    2. Evidence — Self-Incrimination — Civil Proceedings.
    Statements obtained in violation of rights guaranteed by Miranda are not automatically excluded in a civil proceeding involving the declarer, but rather the issue is whether, under the totality of the circumstances, the statement was knowing and voluntary.
    3. Evidence — Hearsay — Declaration Against Penal Interest — Admissibility — Mental Incapacitation — Unavailability.
    A hearsay statement against the penal interest of the declarant may be admissible upon a showing of unavailability of the declarant; although "mental illness or infirmity” is included within the definition of unavailability, there must be a showing that the "mental illness or infirmity” would prevent the declarant from testifying truthfully before such mental illness or infirmity will constitute unavailability.
    4. Trial — Damages — Error — Harmless Error.
    A finding, in a trial on the issue of liability alone, that damages have not been proven constitutes error where the parties have agreed to try the damages issue separately; however, such error is harmless where there is a finding of no liability on the part of the defendants.

      5. Negligence — Elements of Cause of Action.
    The elements of an action for negligence are (1) duty, (2) general standard of care, (3) specific standard of care, (4) cause in fact, (5) legal or proximate cause, and (6) damages.
    6. Torts — Third Parties — Responsibility for Others — Standard of Care.
    One who takes charge of a person having known propensities for danger is under a duty to exercise reasonable care to control the third person and prevent him from harming others; the concept of "duty of reasonable care” is interrelated with the foreseeability that the third person would engage in the particular type of conduct which caused the harm.
    7. Torts — Liability for Tortious Acts of an Insane Person — Standard of Care — Foreseeability.
    The custodian of an insane person ordinarily is not liable for the tortious acts of such person which he could not reasonably anticipate, but he may be liable where he fails to exercise reasonable care under the circumstances.
    8. Fraud — Misrepresentation — Elements.
    The general rule is that to constitute actionable fraud it must appear: (1) that defendant made a material representation; (2) that the material representation was false; (3) that when defendant made the material representation he knew that it was false, or made it recklessly, without any knowledge of its truth 1 as a positive assertion; (4) that defendant made the material representation with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon the material representation; and (6) that plaintiff thereby suffered injury-

      McGinty, Rosewarne, Halverson, Brown & Jakubiak, P.C. (by Thomas M. Hitch, James G. Halverson and Nelson S. Leavitt), for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Charles D. Hackney, and Michael Levine, Assistants Attorney General, for defendants.
    Before: Mackenzie, P.J., and Bashara and D. C. Riley, JJ.
   Mackenzie, P.J.

This appeal involves the issue of whether the state was negligent or made negligent or intentional misrepresentations in the placement of a mental patient on plaintiffs’ dairy farm without disclosing his alleged fire-setting propensities. Recovery was sought for damages from a fire which destroyed the entire contents of plaintiffs’ barn on the evening of January 12, 1970. By stipulation of the parties, a nonjury trial was held on the liability issue only before Judge Robert E. A. Boyle in Centreville, Michigan, on April 25 through April 28, 1978. From a judgment of no cause for action entered on July 14, 1978, plaintiffs bring this appeal as of right.

The evidence adduced at trial shows that in March, 1969, George Scheib, 19, a mentally retarded individual with an I.Q. ranging in the mid-fifties to mid-sixties, was placed on work-convalescent status on plaintiffs’ farm by the Coldwater Home and Training School. He was committed to Coldwater at the age of ten and was continuously institutionalized until he went to live and work on the plaintiffs’ dairy farm.

George’s commitment papers contain a brief unsubstantiated reference to a precommitment incident in which George and his brother, who suffers from similar mental incapacities, allegedly set fire to a davenport in a home. The commitment documents give no indication as to which youth was responsible, and the extent of George’s alleged involvement is not detailed. This probate court record on which plaintiffs relied heavily as evidence that George had set fires in the past does not in fact establish that George had set fires but merely states his involvement in that incident. During the time George was institutionalized, a detailed record of his progress and development was maintained by the Department of Mental Health. George’s retardation was diagnosed by Coldwater’s psychologists as cultural-familial; i.e., it was related to his family background and environment rather than genetically oriented.

In 1968, George was a resident of a male exit cottage at Coldwater and was under the supervision of Gordon Bruce Moeller, a social worker at the institution. Moeller testified at trial that the purpose of an exit cottage is to prepare an institutionalized individual for placement in a job outside of the institution. A screening process is used to determine which persons are ready for this environment, and six people consider a recommendation for entry into a cottage. Residents of exit cottages are given greater independence and are introduced to a work setting. Although residents are permitted to smoke, matches are not normally available to them. All unusual incidents of a resident’s behavior are recorded. George’s record in the ten years he was institutionalized and a resident of the exit cottage revealed no incidents of violent behavior or of setting fires.

The recommendation to place George on work-convalescent status was made by Moeller, who testified as to the institution’s procedures and practices as they related to evaluation of residents for community placement. Moeller also testified as to what procedures he, himself, followed and what inquiry he made when evaluating George Scheib’s case prior to recommending his placement with the plaintiffs.

David Knaggs, the social worker assigned to George, did not tell plaintiffs of the precommitment incident relating to possible fire-setting. However, defendants’ psychology expert, Dr. Henry Leland, testified that no professional ethic requires disclosure of a patient’s record at the time of placement. Dr. Leland also testified that the procedures followed by Moeller in placing George were very good and were consistent with the manner in which social workers are expected to proceed in discharging a patient. Dr. Leland stated that a test performed on George on January 12, 1970, indicated he has a paranoid personality and is very easily influenced but that this would not necessarily lead to setting fires. He further testified that, after reviewing the same materials used by Moeller, he would have recommended the same placement because there was no information that would indicate George was not suitable for placement.

Plaintiffs testified that when they asked about George’s character, Knaggs told them George had been institutionalized because of his parents’ marital breakup and that he was slightly retarded.

George appeared to adjust well in the Knight home. He got along amicably with Tom Showers, another mentally retarded individual on work-convalescent status at plaintiffs’ farm, and performed the tasks the Knights assigned him. George was not permitted to drive the tractor; his farm chores included removing milk equipment from the cows, breaking bales of hay, feeding the calves, and mowing the yard. Knaggs visited the farm to monitor George’s progress with the Knights.

Several fires erupted on the Knight farm from August, 1969, to January 12, 1970. The Knights were able to extinguish the August fire themselves. On Friday, January 9, 1970, fire broke out in the hay loft of the barn, which was situated across the road and one-eighth of a mile from the Knight residence. Bill Knight then surmised that this fire was caused by spontaneous combustion. Knaggs arrived that afternoon to introduce Tom Sherby, his replacement. At that time, Mrs. Knight relayed her fears that George or Tom might have set the fires. Knaggs did not have their files on hand but promised to check them back at his office and to have a talk with George and Tom about being fire watchers. After talking to George and Tom, Knaggs and Sherby left at approximately 4:30 p.m. Shortly after 6 p.m., fire again broke out in the barn. George telephoned from the barn to report the fire to the Knights. Because the doors of the barn were frozen shut, not all of the livestock could be removed from the blazing building. The barn and its contents, including some 22 dairy cows, farm equipment, and personal property, were a total loss.

Bill Knight testified that the day after the January 12th fire, Knaggs visited the Knights and told them of the alleged fire-setting incident mentioned in George’s commitment record. According to Bill Knight, Knaggs said he had not previously thought it necessary to disclose the incident to the Knights because it occurred in George’s early childhood.

Tom Showers testified that, immediately after noticing the fire, he observed George in the adjacent milk house placing some matches in a trash container. George told Tom he knew about the fire and was trying to put it out. Later, after interrogation by the local police, George admitted setting the fires because Bill had "bitched” at him. He felt that when there was a fire, the pressure was off him for a while.

Plaintiffs’ first assignment of error is that the trial court made several unwarranted findings of fact. Findings of fact of the trial court will not be set aside unless clearly erroneous. GCR 1963, 517.1, Warren Police Officers Ass’n v City of War ren, 89 Mich App 400, 404; 280 NW2d 545 (1979). "[A] finding is 'clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Footnote omitted.) Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).

The first factual finding disputed by plaintiffs is the trial court’s determination that "there is no positive evidence beyond inference that the fires on January 9 and January 12, 1970 were set by Scheib”. Plaintiffs argue that the testimony of Walter Wiedbrauk, an arson investigator for the Michigan State Police, that George admitted setting the January 12th fire with matches because William Knight had "bitched” at him constituted competent evidence that George set the fire.

Detective Wiedbrauk could not remember reading George his Miranda rights. Officer May of the Clinton County Sheriff’s Department, who was also present, testified that George was not informed of his rights. Statements obtained in violation of rights guaranteed by Miranda are not automatically excluded in a civil proceeding involving the declarer. Azzaro v Stupar, 17 Mich App 170, 174; 169 NW2d 151 (1969). In that case, this Court upheld admission of a statement obtained in the absence of Miranda warnings, reasoning that "plaintiff was aware of the fact he was being interviewed and we can divine no possibility as to how plaintiff could have incriminated himself as there was never a criminal action pending as a result of the accident”. We perceive the issue to be whether, under the totality of the circumstances, the statement was knowing and voluntary._

The record in the instant case reveals that George was interviewed by Detective Wiedbrauk and Officer May on January 13, 1970. Wiedbrauk was not in uniform when George, who was then an arson suspect, was seated in the back of an unmarked police car and questioned. When added to the fact that George was mentally retarded, had a highly suggestible personality, and could have been easily intimidated by the police, we believe the exclusion of this evidence as incompetent was within the discretion of the trial judge.

Further, we believe the evidence was correctly excluded as hearsay testimony. See MRE 801(c). The testimony was potentially admissible under the declaration against penal interest exception, MRE 804(b)(3); however, the rule mandates a showing of unavailability. People v Dortch, 84 Mich App 184; 269 NW2d 541 (1978). Although plaintiffs are correct in stating that "mental illness or infirmity” is included within the definition of "unavailability”, MRE 804(a)(4), they failed to show that George was so incapacitated that he could not testify truthfully. Plaintiffs did not even call George as a witness because they concluded that his mental state was such that he was afraid to testify or that he could not. However, we believe this determination to be better reserved for the sound discretion of the trial judge.

Plaintiffs next argue the trial court’s finding that George did not have fire-setting tendencies was clearly erroneous. Plaintiffs did not offer expert testimony on the definition of that term. "Pyromania” is defined as "[ijncendiarism; a form of affective insanity in which the mania takes the form of an irresistible impulse to burn or set fire to things”. Black’s Law Dictionary (4th ed), p 935. An isolated, unsubstantiated episode of fire-setting when George was nine years old, considered with the eruption of several fires on the Knight farm in which George’s involvement was questionable, did not provide a sufficient foundation for a finding that George was a pyromaniac. Further, evidence of fires which George may have set after January 12, 1970, has no relevance herein. Thus, the trial judge’s finding was not clearly erroneous.

Nor do we believe the remainder of the findings of fact to which plaintiffs objected to be so prejudicial as to warrant reversal. Judge Boyle’s finding that the Knights were aware of the mental defects of the laborers on their farm and should have taken precautions does not evince a clear misunderstanding of plaintiffs’ case. Plaintiffs knew that the laborers were mentally retarded and should havé taken reasonable safety precautions. The thrust of plaintiffs’ case was that they were not informed of George’s fire-setting propensities. However, as we agree with the trial judge that there was insufficient evidence to establish that George had fire-setting propensities, we find no error. Although the trial judge may have gone too far in finding that plaintiffs employed George and Tom to obtain cheap labor, any error was harmless.

The trial judge was justified in finding that Knaggs and Sherby were advocates for the Knights. Despite the fact that the two social workers were called as adverse witnesses by plaintiffs at trial, Sherby testified on a separate record that he was in fact an advocate for plaintiffs and had attempted to convince the Legislature to pass legislation so that plaintiffs could recover their damages.

The trial judge erred in finding that damages had not been proven since the parties had agreed to try the damages issue separately. However, unless we find the trial judge erred in finding no liability on the part of defendants, the finding of no damages was harmless.

Thus, we now turn to plaintiffs’ next assignment of error: that the trial court erred in determining that plaintiffs failed to satisfy their burden of proving defendants were negligent in placing George on work-convalescent status on plaintiffs’ farm. "The elements of an action for negligence are (i) duty, (ii) general standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage[s].” Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977).

One who takes charge of a person having known propensities for danger is under a duty to exercise reasonable care to control the third person and prevent him from harming others. Restatement of Torts 2d, § 319. Within the confines of this case, defendants had a duty of reasonable care to inform plaintiffs of any limitations or destructive tendencies in George’s behavior that were known to them at the time of his placement, or that became known to them while George lived with plaintiffs.

However, the concept of duty is interrelated with the foreseeability that the third person would engage in that particular type of conduct which caused the harm. McNeal v Henry, 82 Mich App 88; 266 NW2d 469 (1978), Holloway v Martin Oil Service, Inc, 79 Mich App 475; 262 NW2d 858 (1977), lv den 402 Mich 932 (1978). Thus, "[t]he custodian of an insane person ordinarily is not liable for the tortious acts of such person which he could not reasonably anticipate, but he may be liable where he fails to exercise reasonable care under the circumstances”. (Footnotes omitted.) 44 CJS, Insane Persons, § 125, p 282. Cf. In re Jones Estate, 52 Mich App 628, 635; 218 NW2d 89 (1974), lv den 392 Mich 770 (1974).

Although the issue herein seems to be one of first impression in Michigan, the facts bear a striking resemblance to those in Seavy v State, 21 App Div 2d 445; 250 NYS2d 877 (1964), aff'd 17 NY2d 675; 269 NYS2d 455; 216 NE2d 613 (1966). In Seavy, a mentally deficient young man placed on work-convalescent status on a dairy farm burned down a barn 11 days after his release from custody. In affirming a judgment that the state could not be held negligent for an incident which was unforeseeable and unrelated to any previous behavior pattern, the New York Court stressed that, although the young man had a past history of being quick tempered and disagreeable and had once suffered burns after spilling cleaning fluid on his body, his record after his transfer to the second school was good and did not indicate pyromaniacal tendencies. The court held the school was under no duty to disclose the patient’s record at the first school except to the extent that a specific harm might have been avoided.

Assuming arguendo that George did burn down plaintiffs’ barn in the case at bar, we agree with the trial judge that defendants were not negligent. The act was unforeseeable in light of George’s good record for the preceding ten years. Moreover, his precommitment episode of fire-setting was insufficient to establish he had pryomaniacal tendencies. The expert testimony indicated that the decision to place George on the farm was consistent with good psychological practice. Although Berneice Knight did inform Knaggs of her suspicions on the afternoon of the final fire, he was not then possessed of sufficient information to warrant removing George from the farm and did not have a reasonable amount of time to check George’s record before the fire. Had she earlier informed Knaggs of her suspicions, our result might have been different.

Finally, plaintiffs contend that the trial judge erred in holding that they failed to prove defendants intentionally or innocently misrepresented the episode of setting fires in George’s past which precipitated his commitment.

The elements constituting actionable fraud or misrepresentation were recapitulated in Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976), citing Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919), to wit:

"The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.”

In the case at bar, we do not believe that Knaggs’ failure to inform plaintiffs of the precommitment fire-setting incident in which George was allegedly involved constituted a material misrepresentation. The evidence shows that plaintiffs never specifically inquired about George’s propensity toward arson but merely inquired generally about his safety on the farm and attitude toward animals. Given his knowledge at the time, including George’s record at Coldwater, Knaggs truthfully replied that George was a safe individual for placement. To reiterate, we do not believe defendants were under a duty to disclose the unsubstantiated precommitment incident of fire-setting. Although Knaggs was informed of Berneice Knight’s suspicions about George on the afternoon of January 12, 1970, the record shows that he did not have George’s file at hand or have time to check his file before the fire occurred. Therefore, despite the tragic loss herein, we agree that defendants should not be held accountable.

Affirmed. Costs to defendants.

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).


author: R. E. Robinson, J.

text:
      In re LONG ESTATE FERGUSON v LONG
    Docket No. 78-3350.
    Submitted January 16, 1980, at Lansing.
    Decided August 11, 1980.
    Robert V. Long, Sr., deceased, was divorced from his wife, whose name is now Mary Lou Ferguson. In the divorce, an agreed property settlement provided for child support of $18 per week per child to be paid by Mr. Long. It further provided that Mr. Long would "designate the minor children, Robert Vernon Long, Jr., Theresa Long, Rodney Long, and Victoria Long, as the beneficiaries of his policy of life insurance with his place of employment” irrevocably until his support obligation shall have terminated. Mr. Long died without having complied with that order, his ex-wife being the designated beneficiary. Shortly after their father’s death, the children began receiving social security benefits of $150 per month per child. The insurance company commenced an interpleader action, and the Genesee Circuit Court awarded the impleaded insurance proceeds to Mrs. Ferguson as guardian of the minor children. Prior to her receiving the funds, Robert V. Long, Jr., attained the age of majority. Some months later, Mrs. Ferguson applied to the Genesee County Probate Court for approval of her first annual accounting as guardian. Robert V. Long, Jr., objected, claiming entitlement to 1/4 of the insurance proceeds less allowable expenses. The court, Harold E. Resteiner, J., denied Long’s claim, and allowed some of Mrs. Ferguson’s expenditures but disallowed others, made apparently for the benefit of her elder daughter, as being extravagant in light of the purpose of the insurance fund and the social security benefits available for the children’s support. Mrs. Ferguson was ordered to repay the disallowed expenditures in installments and to distribute the residue of the fund to the children in equal shares at the majority of the youngest child. Both parties appealed. The Genesee Circuit Court, Thomas C. Yeotis, J., reversed as to the disbursement to Long and affirmed the disapproval of Mrs. Ferguson’s application of the insurance proceeds. It ordered that each child’s expenses be deducted from a separate 1/4 of the fund, with the child’s remaining "credit” turned over to the child at majority. Mrs. Ferguson appeals by leave granted. Held:

      References for Points in Headnotes
    [1] 59 Am Jur 2d, Parent and Child §§ 69-71.
    73 Am Jur 2d, Support of Persons §§ 7, 14.
    Power of court to modify decree for support of child which was based on agreement of parties. 61 ALR3d 657.
    [2] 59 Am Jur 2d, Parent and Child § 56.
    Adequecy of amount of money awarded as child support. 1 ALR3d 324.
    Excessiveness of amount of money awarded as child support. 1 ALR3d 382.
    Income of child from other source as excusing parent’s compliance with support provisions of divorce decree. 39 ALR3d 1292.
    Power of court to modify decree for support of child which was based on agreement of parties. 61 ALR3d 657.

      1. The parties to a divorce may agree to child support obligations in excess of those a court would have authority to impose upon an unwilling parent. The agreement to name the children as beneficiaries was enforceable.
    2. The probate court properly took the social security benefits to each child into account in disallowing the expenditures.
    3. The probate court properly decided all issues.
    Affirmed in part and reversed in part.
    1. Parent and Child — Support — Contracts — Enforceability.
    Child support obligations to which the parties have agreed are enforceable even though they extend beyond the authority of the court to impose them upon an unwilling party.
    2. Parent and Child — Support — Social Security Benefits.
    A child support obligation may properly be reduced when the child becomes entitled to social security benefits on the parent’s account where the net effect is to preserve a fund created by that parent for the benefit of the child.

      Parker, Buckley & Smith, for Mary Lou Ferguson.
    Before: Beasley, P.J., and D. E. Holbrook, Jr., and R. E. Robinson, JJ.

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

   R. E. Robinson, J.

Robert V. Long, Sr., was divorced from Mary Lou Ferguson (then Long) on April 9, 1973. Robert V. Long, Jr., is the eldest child of that marriage. In the divorce, an agreed property settlement became part of the judgment, providing for child support of $18 per week to be paid to Mrs. Ferguson for each child remaining under the age of majority. The agreement also provided:

"That as further support for said minor children, the Defendant, Robert Vernon Long, shall forthwith irrevocably designate the minor children, Robert Vernon Long, Jr., Theresa Long, Rodney Long, and Victoria Long, as the beneficiaries of his policy of life insurance with his place of employment, and he shall continue said minor children as the irrevocable beneficiaries of such policy until such time as his obligation to support such minor children, as hereinbefore provided, shall have terminated, or until the further Order of the Court. The Defendant, Robert Vernon Long, shall, within sixty days from the granting of the Judgment of Divorce, furnish the office of the Friend of the Court for Genesee County, Michigan, with proof of his compliance with this provision.”

Robert V. Long, Sr. (hereinafter, the father), died on April 17, 1974, and soon thereafter Mrs. Ferguson began receiving social security benefits for each of their minor children in the amount of $150 per month, later increased to $164 per month. The father had not complied with the divorce judgment, and his ex-wife was left the designated beneficiary of the life insurance policy. The father’s estate laid claim to the proceeds of the policy, and the insurer interpleaded all inter-, ested parties. Mrs. Ferguson made claim to the proceeds on behalf of the father’s children and prevailed on December 5, 1975, the judgment providing:

"NOW THEREFORE, IT IS ORDERED, that the proceeds of the Metropolitan Life Insurance Policy, which the Plaintiff has paid into the Clerk of the Genesee County Circuit Court, be paid over to the Defendant, Mary Lou Long, as Guardian of Robert V. Long, Jr., Theresa Long, Rodney Long, and Victoria Long, minor children of Robert V. Long, Deceased.”

Robert Long, Jr., attained his majority on December 22, 1975. Shortly thereafter, Mrs. Ferguson received the $10,000 payment due under the policy. In a few months, she spent nearly $4,000 from that fund.

On July 13, 1976, Mrs. Ferguson applied to the probate court for approval of her "first annual accounting” as guardian of her minor children. Mr. Long objected to the accounting and demanded that Mrs. Ferguson be ordered to pay him 1/4 of the insurance proceeds less properly allowable expenses, a net sum of $2,267.50. This claim was denied, the court ruling that the proceeds of the father’s insurance were intended by the divorce judgment to be held as a common fund for the sustenance of the minor children to whom ran the father’s support obligation.

Of the sum Mrs. Ferguson had drawn from the insurance proceeds, the court allowed expenditures for attorney fees, some medical expenses, a guardian’s bond and some clothing, but disallowed $2,738.30 in other expenditures, most made apparently for the elder daughter, as extravagant in light of the purpose of the insurance fund and the social security benefits available for the children’s support. Mrs. Ferguson was ordered to repay that amount in installments. It was ordered that the residue of the fund remaining at the majority of the father’s youngest child was to be distributed in equal parts to the four children.

Both parties appealed to the circuit court, which reversed as to the disbursement to Mr. Long and affirmed the disapproval of Mrs. Ferguson’s application of the insurance proceeds. It ordered that each child’s expenses be deducted from a separate 1/4 of the fund, with the child’s remaining "credit” to be turned over to the child on majority. We granted Mrs. Ferguson’s delayed application for leave to appeal. Mr. Long has filed no responsive brief.

It was Mr. Long’s claim in the lower courts that the judgment of divorce vested in each child a separate 1/4 interest in the proceeds of his father’s insurance policy and that he, receiving no support from the fund while a minor, was entitled to have it in cash when Mrs. Ferguson received the money. Mrs. Ferguson asserted that the judgment linked the insurance and its proceeds to the father’s obligation to support his children through their minority and that the insurance proceeds should be held for the benefit of the minor children as a class, with no child of any age entitled to a divisible portion.

Much of Mrs. Ferguson’s argument relies on the rule that in the absence of "exceptional circumstances” a court entering judgment of divorce cannot order a parent to support an adult child. MCL 552.17a; MSA 25.97(1), Gray v Independent Liberty Life Ins Co, 57 Mich App 590; 226 NW2d 574 (1975). She contends that this limitation renders Mr. Long’s interpretation of the divorce judgment illegal. In this Mrs. Ferguson has overlooked another principle, set forth in Gray itself and in Ovaitt v Ovaitt, 43 Mich App 628; 204 NW2d 753 (1972), making enforceable child support obligations to which the parties have agreed that would be beyond the authority of the court to impose upon an unwilling parent. The judgment in the divorce of Mrs. Ferguson and the father was the product of such a settlement, and we are therefore not constrained in our interpretation of the insurance provision by the limitations advanced by Mrs. Ferguson. We are confronted by what is at bottom a problem in contract interpretation, in which our task is to ascertain the intention of the parties from the language they have employed.

The paragraph of the judgment setting forth the insurance requirement immediately follows a provision for support of the children through their minority. The insurance was designated as "further support of said minor children” and was to be maintained in effect only until the youngest child reached his majority. The provision quite notably treats the children as a group and does not provide for piecemeal redesigiiation of beneficiaries as the children singly come of age. The placement and terms of this provision demonstrate to us an intent on the part of the parties to the divorce to ensure a source of support for the children through the minority of each. Necessarily, the minority of the younger children is longer than that of those who are older, and they may be expected to require greater sums for their sustenance before entering adulthood. A partitioning of the fund and payment of a per capita share of it to a single adult child is entirely at odds with the intent demonstrated by the provision.

The second issue raised in this case involves the disallowance of a substantial part of Mrs. Ferguson’s expenditures from the insurance fund. This decision was based largely on the fact that from the time of the father’s death until her receipt of the insurance money following the interpleative proceedings, Mrs. Ferguson had apparently succeeded in meeting the needs of the minor children from the social security payments she received on their account. In the few months following that period, she spent nearly $4,000 from the proceeds, and was unable to convince the probate judge that the social security benefits were inadequate for the support of the children. Three-fourths of these expenditures were disallowed as being in derogation of her duty to preserve the fund for future needs of the younger children. We find no abuse of discretion in this action. While our courts apparently have not passed on the question, the courts of other states have held that a child support obligation may be reduced when the children become entitled to social security benefits on the parent’s account. See e.g., Joachim v Joachim, 57 App Div 2d 546; 393 NYS2d 63 (1977). We believe that the principle in these cases is a proper one to apply in the accounting involved here, for it effectuates the "substitute support” purpose of the divorce judgment and preserves the none-too-plentiful insurance proceeds for all the children.

Accordingly, we reverse the judgment of the circuit court as to the disbursement of money to Mr. Long and reinstate the judgment of the probate court on that matter. As to Mrs. Ferguson’s obligation to repay the disallowed expenditures, the judgment of the circuit court is affirmed.

No costs, neither party having prevailed in full.


author: T. Gillespie, J.

text:
    TALBOT v TALBOT
    Docket No. 78-3924.
    Submitted May 7, 1980, at Lansing.
    Decided August 11, 1980.
    Leave to appeal applied for.
    Plaintiff, Robert L. Talbot, was divorced from his wife, defendant Marian J. Talbot, in the Kalamazoo Circuit Court in 1969. The judgment of divorce contained a custody and support award to the defendant. The judgment was twice modified by stipulation to change custody and support obligations. On June 20, 1972, plaintiff was served, by first-class mail, with notice that a hearing would be held on August 30, 1972, to modify custody and support. Plaintiff elected not to appear, believing the court did not have jurisdiction over him. Following an ex parte hearing, custody was changed, an arrearage was found and child support and back child support were ordered. Plaintiff moved for reconsideration, which was denied. At a later hearing, further arrearages were found. On February 9, 1978, defendant moved for a money judgment on the arrearages. At the hearing plaintiff contended that defendant had waived child support and that, in reliance therein, plaintiff had committed himself for a new home. A money judgment was entered, C. H. Mullen, J. Plaintiff appeals. Held:

    1. The circuit court had authority to reduce the support installment arrearages to a judgment and the procedure utilized, a petition followed by a hearing with notice, was proper.
    2. The reduction of child support arrearages to judgment is not a new cause of action and new process need not issue, but the party against whom relief is sought is entitled to notice. The procedure was proper.
    3. The court rule requiring service of process upon the prosecuting attorney in the initial proceedings for divorce where there are minor children does not require service upon the prosecutor in enforcement of support proceedings. The prosecutor was not and did not need to be served.

      References for Points in Headnotes
    [1] 24 Am Jur 2d, Divorce and Separation § 659 et seq.

    [2] 24 Am Jur 2d, Divorce and Separation §§ 557, 812.
    [3, 4] 24 Am Jur 2d, Divorce and Separation § 862.

      4. The court properly held the findings of the prior arrearages in the earlier hearings were res judicata.
    5. The commencement of an action under the Uniform Reciprocal Enforcement of Support Act does not bar further action in the original case. Defendant’s commencement of a URESA action against plaintiff did not bar the court from making its order.
    Affirmed.
    1. Divorce — Judgments — Alimony — Child Support — Enforcement of Judgment.
    There must be a petition and hearing to reduce an alimony or support order in a divorce judgment in equity to a judgment at law which is a final judgment before an execution may issue.
    2. Divorce — Jurisdiction — Continuing Jurisdiction — Custody — Child Support — Notice.
    A court granting a judgment of divorce has continuing jurisdiction to revise, alter or amend the judgment with respect to custody and support; the reduction of child support arrearages to judgment is not a new cause of action and new process need not issue, but the party against whom relief is sought is entitled to notice.
    3. Divorce — Service of Process — Prosecuting Attorney — Child Support — Enforcement Proceedings — Court Rules.
    The court rule requiring service of process upon the prosecuting attorney in the initial proceedings for divorce where there are minor children does not require service upon the prosecutor in enforcement of support proceedings (GCR 1963, 723.2[2]).
    4. Parent and Child — Divorce — Child Support — Statutes — Uniform Reciprocal Enforcement of Support Act.
    The commencement of an action under the Uniform Reciprocal Enforcement of Support Act does not bar further action in an original divorce case (MCL 780.151 et seq.; MSA 25.225[1] et seq.).

      Robert J. Barnard, Jr., for plaintiff.

      Harry Contos, Jr., for defendant.

      Before: Cynar, P.J., and M. J. Kelly and T. Gillespie, JJ.

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

   T. Gillespie, J.

On October 5, 1967, Robert Lloyd Talbot filed a complaint against his wife, Marian Jessie Talbot (Burns), for divorce.

Divorce was granted May 31, 1968. As a part of the judgment, Circuit Judge Raymond W. Fox awarded custody of the parties’ four minor children, Robert Anthony, Daniel Andrew, Tammy Sue and George Richard, to the defendant wife. The judge allowed $50 a week, $12.50 for each child, as child support.

On October 6, 1970, the judgment order was modified by stipulation to change custody of Robert and Daniel, the two older boys, to the plaintiff husband and to relieve the husband of the support obligation for these children.

Again on January 27, 1971, by stipulation, an order was entered changing the custody of Tammy Sue and George to the plaintiff husband. This order also provided that all support arrearages would be expunged upon payment to the wife of $800, which apparently was never paid.

Plaintiff was served with notice, by first class mail, on June 20, 1972, that a hearing would be held on August 30, 1972, to modify custody and support. He had dismissed his counsel and elected not to appear, as he believed the court had no jurisdiction over him. After an ex parte hearing on August 30, 1972, with only the defendant wife testifying, the circuit judge again modified the judgment by returning custody of the two younger children, Tammy Sue and George, to the mother. In the order the judge also found a balance of $5,000 due on child support and set support of $36 per week ($18 per child) plus $10 per week on arrearages and allowed the wife attorney fees.

Immediately after this order was entered the plaintiff brought a motion for reconsideration, alleging that he had never received notice of the motion and hearing. Judge Fox denied the motion for reconsideration.

At a hearing on June 25, 1973, at which the plaintiff, who had become a resident of Illinois, appeared by attorney, Judge Fox found an additional arrearage to be $1,656 and also found the plaintiff in contempt.

On February 9, 1978, the defendant filed a motion for a money judgment in the amount of $15,296 based on arrearage of child support. The husband was served with process by regular first class mail. The plaintiff entered a special appearance through an attorney.

After a series of three hearings the court, Circuit Judge C. H. Mullen, entered a judgment for $6,656 for support to June 25, 1973, and the balance was set for evidentiary hearing August 2, 1978.

Plaintiff contended that, by oral agreement, the defendant had waived child support and that in reliance thereon the plaintiff, who had remarried and had another child, had heavily committed himself for a new home. The court found that the prior judgments by Judge Fox were res judicata because never appealed and found $8,766 to be the arrearage from June 25, 1973, to July 28, 1978, for a total of $15,422.

From this judgment the husband appeals.

The issues are stated by both appellant and appellee in slightly different terms, but they are essentially the same:

1. Can the circuit court enter a money judgment for arrearage in child support in a post-judgment divorce proceeding?

2. Does the entry of judgment in a divorce proceeding terminate the suit thereby requiring new process to issue and to acquire personal jurisdiction for further proceedings?

3. Must the prosecutor be served as required by MCL 552.45; MSA 25.121 in every petition to modify a judgment of divorce?

4. Was the finding of the circuit court that arrearages reduced to money judgment were res judicata and denial of contest on such sums improper?

5. Does the commencement of URESA action bar further proceedings in the enforcement in the original case?

6. Did the presence of the defendant’s husband, who is a judge of the Court of Appeals, during the hearing on the post-judgment action prejudice the outcome of the hearing?

Can the Circuit Court Enter a Judgment for Arrearage in Child Support?

Child support differs from alimony in that the maintenance of a child is a common law obligation resting upon the parents. By statute, however, alimony and child support are obligations enforceable against the father and the procedure for enforcement is provided in the same statute. MCL 552.27; MSA 25.105, West v West, 241 Mich 679; 217 NW 924 (1928), Newton v Security National Bank of Battle Creek, 324 Mich 344; 37 NW2d 130 (1949), Corley v Corley, 79 Mich App 499; 261 NW2d 65 (1977).

Some jurisdictions allow execution on the decree itself and each installment is considered as a judgment for money upon which execution may issue. Allingham v Allingham, 141 Colo 345; 348 P2d 259 (1959), Brandt v Brandt, 107 US App DC 242; 276 F2d 488 (1960).

Michigan has historically followed the rule that there must be a petition and hearing to reduce an alimony or support order in a divorce judgment in equity to a judgment at law which is a final judgment before execution may issue. The rationale of the rule is that a judgment for alimony or support may be altered, amended or modified by the court due to change of circumstances and is not therefore "final” in a legal sense. Perkins v Perkins, 16 Mich 162 (1867), Taylor v Gladwin, 40 Mich 232 (1879), Nixon v Wright, 146 Mich 231; 109 NW 274 (1906), Toth v Toth, 242 Mich 23; 217 NW 913 (1928), St Ana v St Ana, 353 Mich 271; 91 NW2d 292 (1958), Kavanagh v Kavanagh, 30 Mich App 636; 186 NW2d 870 (1971), Corley v Corley, supra.

It is only when the amounts due on support or alimony are final and fixed that the courts of a sister state will recognize and enforce the judgment under full faith and credit commanded by Article IV, Section 1 of the United States Constitution. Sistare v Sistare, 218 US 1; 30 S Ct 682; 54 L Ed 905 (1910), Barber v Barber, 323 US 77; 65 S Ct 137; 89 L Ed 82 (1944).

In the instant case the circuit judge did have the authority to reduce the divorce installments to judgment and the procedure utilized by the defendant, namely a petition followed by a hearing with notice to the opposite party, was proper.

Does the Entry of Judgment in a Divorce Proceeding Terminate the Suit Thereby Requiring New Process to Acquire Personal Jurisdiction for Further Proceedings?

Few legal questions are as clearly answered both by the statute and case law as the proposition that the court has continuing jurisdiction in connection with custody and support to revise, alter or amend the original judgment of divorce. MCL 552.17; MSA 25.97, Havens v Havens-Anthony, 335 Mich 445; 56 NW2d 346 (1953), Ovaitt v Ovaitt, 43 Mich App 628; 204 NW2d 753 (1972).

The reduction of arrearage to judgment is not a new cause of action but is a continuation of efforts to obtain support and maintenance for minor children, and it is not necessary that new process issue.

If the court had in personam jurisdiction when it granted the divorce decree this authorizes revision, amendment or alteration of the custody and support provisions without new process issuing. The party against whom relief is sought does, however, have a right to notice even if the court does have jurisdiction. Pierce v Pierce, 324 Mich 38, 44; 36 NW2d 205 (1949), Anno: Opening or modification of divorce decree as to custody or support of child not provided for in the decree, 71 ALR2d 1370, 1400. Such notice must be served on the party against whom relief is sought and not on the attorney who formerly represented him. Ohlman v Ohlman, 49 Mich App 366; 212 NW2d 75 (1973).

The attorney for the defendant served notice of hearing February 9, 1978, by first class mail for hearing February 28, 1978, at which plaintiff appeared specially by attorney and raised objection to the notice given. Several motion hearings were held and trial was held on August 2, 1978. The plaintiff had notice and opportunity to be heard at each step; thus, no error occurred.

Must the Prosecutor be Served as Required by MCL 552.45; MSA 25.121 in Every Petition to Modify a Divorce?

The cited statute requires notification to the prosecuting attorney in the initial proceedings for divorce where there are minor children. GCR 1963, 723.2(2).

This court in Eigner v Eigner, 79 Mich App 189, 198-199; 261 NW2d 254 (1977), held such statute to be jurisdictional and extended its application to modification proceedings in a custody case.

The plaintiff urges that the prosecutor must be served in every proceeding. It was the intent of the Legislature to involve the prosecutor in every proceeding as a friend of the minor children, however, there is no rationale to support the intervention of the prosecutor in enforcement proceedings.

Was the Finding of the Court That the 1972 and 1973 Judgments Were Res Judicata and Denial of Contest on Such Sums Improper?

On June 20, 1972, the plaintiff was notified of a hearing to be held on August 30, 1972, to reduce arrearages then in existence to judgment. At the hearing the plaintiff did not appear. The judgment was taken. On September 1, 1972, the plaintiff moved for reconsideration.

In the affidavit filed supporting the motion he alleged that he had fired his attorney in May, 1972, and was without counsel and believed that he was no longer subject to the court’s jurisdiction. The trial judge denied the motion for reconsideration. No appeal was taken from the 1972 proceedings or from a later judgment rendered in June, 1973. Six years later, in 1978, the plaintiff attempted to raise the question of jurisdiction. The judge ruled that the 1972 and 1973 judgments were res judicata.

The plaintiff has had opportunity for at least five years to correct any defect in the 1972 and 1973 judgments and has failed to take the necessary action to do so. The record in this case reflects no facts which would indicate the judgments were void and an attempt now to raise the question collaterally comes too late. McKenzie v McKenzie, 349 Mich 18; 84 NW2d 333 (1957), Buczkowski v Buczkowski, 351 Mich 216; 88 NW2d 416 (1958), Banner v Banner, 45 Mich App 148; 206 NW2d 234 (1973).

Does the Commencement of a URESA Action Bar Further Action in the Original Case?

MCL 780.154; MSA 25.255(4), which is a section of the Uniform Reciprocal Enforcement of Support Act, provides:

"The remedies herein provided are in addition to and not in substitution for any other remedies.”

It has been held in several cases from other jurisdictions that this section of the Uniform Law is to be construed not merely as preserving all existing remedies intact but as providing additional remedies which are supplementary and ancillary to all existing remedies. State of Illinois ex rel Barbara A Shannon v Sterling, 248 Minn 266; 80 NW2d 13 (1956), Salito v Salito, 107 NH 53; 217 A2d 179 (1966), Daly v Daly, 21 NJ 599; 123 A2d 3 (1956).

Did the Presence of Defendant’s Husband, Who is a Judge of the Court of Appeals, During the Hearing on the Post-Judgment Action Prejudice the Outcome of the Hearing?

So far as appears, the only support for the assertion of undue influence is plaintiffs unsupported suspicions and the claim is without merit.

The judgment of the circuit court is affirmed with costs to the defendant.

M. J. Kelly, J., concurs in the result only.


author: Beasley, J.

text:
    ZATOLOKIN v GRIMM
    Docket No. 78-4734.
    Submitted March 5, 1980, at Lansing.
    Decided August 11, 1980.
    Leave to appeal applied for.
    John Zatolokin and his wife Eileen Zatolokin, hereinafter plaintiffs, claim damages from Frederic A. Grimm, his former law-firm Landman, Grimm, Bradbury and Laurin, subsequently known as Landman, Hathaway, Latimer, Clink and Robb, . Attorneys; Robert L. Forsythe, and his lawfirm, Parmenter, Forsythe and Rude, Attorneys; hereinafter defendants, for alleged malpractice. Plaintiffs originally retained defendant Grimm and his lawfirm in connection with their interest in several real estate contracts and other investment transactions. Thereafter, defendant Grimm informed the plaintiffs that due to his appointment as a circuit judge he would no longer be able to represent them. The plaintiffs thereupon retained defendant Forsythe and his lawfirm to represent them in connection with their investments. Later defendant Forsythe informed plaintiffs that the statute of limitations had run with respect to any claims arising out of their investment transactions. Plaintiffs thereupon filed this lawsuit. Subsequently, defendant Grimm and his former lawfirm filed a motion for accelerated judgment claiming that the statute of limitations had run on plaintiff’s claim for malpractice in that the amendment to the applicable Michigan statute which took effect on July 9, 1975, provided that a malpractice action may be brought within two years after termination of professional services, or within six months after a plaintiff discovers the existence of a claim, whichever is later. Plaintiffs contend that their claim is governed by the statute as construed by the Supreme Court before its amendment, which provided that the statute of limitations for malpractice was two years from the time professional services are discontinued or within two years of when plaintiff discovers or in the exercise of reasonable diligence should have discovered the alleged malpractice, whichever is later. The Ingham Circuit Court, Ray C. Hotchkiss, J., denied the Grimm motion. Defendant Grimm and his lawfirm appeal. Held:

      References for Points in Headnotes
    [1] 51 Am Jur 2d, Limitation of Actions § 1 et seq.

    [2] 51 Am Jur 2d, Limitation of Actions § 107.
    [3] 61 Am Jur 2d, Physicians and Surgeons §§ 181, 182.
    Statute of limitations applicable to malpractice action against physician, surgeon, dentist, or similar practitioner. 80 ALR2d 320.
    When statute of limitations commences to run against malpractice action against physician, surgeon, dentist, or similar practitioner. 80 ALR2d 368.

      1. The statute of limitations in effect at the time a plaintiff’s cause of action arose governs.
    2. The statute of limitations begins to run against a cause of action only after the right to prosecute such cause of action to a successful conclusion has accrued.
    3. Use of the date when a malpractice cause of action in fact accrued best gives effect to the legislative intent as the key date in deciding which statute of limitations should apply to a legal malpractice claim.
    4. The date upon which plaintiffs lost their possible claims arising out of the investments by expiration of the statute of limitations is the key date. If plaintiffs’ cause of action against the investment interests was barred by running of the statute of limitations on or after July 9, 1975, plaintiffs’ malpractice claim against defendants is barred by the amended statute of limitations. If, however, plaintiffs’ cause of action against the investment interests was barred by running of the statute of limitations before July 9, 1975, then plaintiffs’ malpractice claim against defendants is not barred.
    Remanded with instructions.
    1. Limitation of Actions — Statutes — Effective Date.
    The statute of limitations in effect at the time a plaintiff’s cause of action arose governs.
    2. Limitation of Actions — Statutes — Accrual.
    The statute of limitations begins to run against a cause of action only after the right to prosecute such cause of action to a successful conclusion has accrued.
    3. Limitation of Actions — Malpractice — Accrual.
    Use of the date when a malpractice cause of action in fact accrued best gives effect to the legislative intent as the key date in deciding which statute of limitations should apply to a legal malpractice claim.

      McGinty, Halverson, Brown & Jakubiak, P.C. (by James C. Halverson), for plaintiffs.

      Smith, Haughey, Rice & Roegge (by Ellen J. Eggers), for defendants Frederic A. Grimm; Land-man, Grimm, Bradbury & Laurin; and Landman, Hathaway, Latimer, Clink & Robb.

      Hillman, Baxter & Hammond, for defendants Robert L. Forsythe and Parmenter, Forsythe & Rude.
    Before: M. J. Kelly, P.J., and D. F. Walsh and Beasley, JJ.
   Beasley, J.

Plaintiffs claim damages from defendants, who are two lawfirms and certain named individual attorneys, for alleged legal malpractice. Defendant Grimm and his former lawfirm filed a motion for accelerated judgment based on the claim that the statute of limitations had run. The trial court denied this motion. Defendants-appellants, Grimm and his lawfirm, who will hereinafter be referred to as appellants, appeal by leave granted, and plaintiffs cross-appeal.

The certified, concise statement of facts indicates that plaintiffs retained appellants in June 1968, to represent them in connection with their interest in the so-called Sieradzki investments. Appellants provided legal services to plaintiffs until September 12, 1974, when appellant Grimm informed them that his appointment as a circuit judge prevented his representing them any longer. On that same day, September 12, 1974, plaintiffs retained defendant Forsythe and his lawfirm to represent them in connection with their various investments. On May 6, 1976, defendant Forsythe informed plaintiffs that the statute of limitations had run with respect to any claims arising out of their investment transactions. On April 25, 1978, plaintiffs filed the within case for damages, alleging legal malpractice.

On May 23, 1978, appellant Grimm filed his motion for accelerated judgment based on MCL 600.5838; MSA 27A.5838. This statute is an amended version which took effect on July 9, 1975. It provides that a malpractice action may be brought within two years after termination of professional services, or within six months after plaintiff discovers the existence of a claim, whichever is later. Plaintiffs’ opposition to defendants’ motion is essentially based on their position that their claim was governed by the statute as it was before the 1975 amendment.

Initially, we review the statute, before and after its amendment, and its effect as applied to the facts in this case. Prior to the 1975 amendment, the formerly constituted MCL 600.5838; MSA 27A.5838, which statute must be read together with MCL 600.5805; MSA 27A.5805, provided:

"Sec. 5805. No person may bring or maintain any action to recover damages for injuries to persons * * * unless, after the claim first accrued * * * he commences the action within the periods of time prescribed by this section. * * *
"(3) The period of limitations is 2 years for actions charging malpractice.”
"Sec. 5838. A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose.”

In the 1973 case of Dyke v Richard, the Supreme Court construed the statute to provide that an action for malpractice must be brought within two years of the date professional services are discontinued or within two years of when plaintiff discovers or, in the exercise of reasonable diligence, should have discovered the alleged malpractice, whichever is later.

If this statute, as it read prior to its amendment, applies to plaintiffs’ action, that action is not barred because, for purposes of this appeal, we accept as fact that the plaintiffs did not discover, until May 6, 1976, that the statute of limitations applicable to their investment transactions had run. Since plaintiffs brought suit against appellant Grimm on April 25, 1978, their claims against appellants would not be barred by expiration of the statute of limitations.

However, there would be a different result if the statute, as amended July 9, 1975, applied to plaintiffs’ claim. That statute, MCL 600.5838; MSA 27A.5838, provides as follows:

"(1) A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession, * * * accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.
"(2) An action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. * * * A malpractice action which is not commenced within the time prescribed by this sub-section is barred.” (Footnote omitted.)

If this statute, as amended, applies to plaintiffs’ action, it is barred, since defendant Grimm withdrew as plaintiffs’ attorney on September 12, 1974, more than three years before suit was filed on April 25, 1978. Further, plaintiffs discovered the alleged malpractice on May 6, 1976, more than six months before filing suit.

In analyzing this question, we start with the general rule that the statute of limitations in effect at the time the plaintiffs’ cause of action arose governs.

In this case, plaintiffs alleged that appellant Grimm failed to file a lawsuit as a result of the Sieradzki investment transactions within the time afforded under the applicable statute of limitations. Accordingly, plaintiffs’ claim against appellant Grimm arose on the date that the statute of limitations expired for bringing the original action arising out of the Sieradzki transactions. Until that date, appellant Grimm or his firm could have filed suit on plaintiffs’ behalf, and plaintiffs would have had no cause of action against them for permitting the statute of limitations to run.

Some will argue that plaintiffs’ alleged malpractice claim against Grimm accrued, for purposes of measuring the running of the statute of limitations, either on the last date Grimm performed legal services for plaintiffs (9/12/74), or on the date plaintiffs learned that their claims against Sieradzki had been lost by running of the statute of limitations (5/4/76)._

To adopt that reasoning is to create a dilemma because the answer as to which of those dates controls is the very question we are trying to decide. But, it is not only because a dilemma is created that we adopt different reasoning.

In general, the statute of limitations begins to run against a cause of action only after the right to prosecute such cause of action to a successful conclusion has accrued.

In Biberstine v Woodworth, the Supreme Court cites with approval 18 ALR3d 978, which says in part:

"In those cases where the negligence complained of is delay or inaction, which, unlike a positive negligent act where the time of commission may with some certainty be established, covers some space of time, some courts have stated that the statute of limitations against a cause of action for negligent malpractice starts to run when the attorney’s delay or inaction has resulted in some injury, as distinguished from consequential damages, to the client, and thus, for example, if the delay results in a client’s cause of action against another being barred by the statute of limitations, the injury referred to would be when the client’s action is barred, and thus, at this time the statute of limitations against the client’s cause of action against his attorney will start to run.” (18 ALR3d 987).

In Biberstine, the alleged malpractice consisted of failing to include a debt in a bankruptcy schedule. There, the Supreme Court held:

"We hold that the statute of limitations starts to run at the time the plaintiff was discharged in bankruptcy. Until then, the defendant could have petitioned the bankruptcy court to amend the petition, and the plaintiff would not have had a claim for malpractice.”

We believe that using the date when the malpractice cause of action in fact accrued best gives effect to the legislative intention. Thus, in this case, we adopt the date upon which plaintiffs lost their possible claims arising out of the Sieradzki investments by expiration of the statute of limitations as the key date in deciding which statute of limitations applies to plaintiffs’ legal malpractice claim against appellants.

However, in this case, the record does not indicate when the statute of limitations ran and barred these original potential actions against the Sieradzki interests. We do know that plaintiffs were informed that the statute had run on May 6, 1976, but the exact date on which it ran is not known.

Applying these premises to this case, we find that if plaintiffs’ cause of action against the Sieradzki interests was barred by running of the statute of limitations on or after July 9, 1975, then plaintiffs’ malpractice claim against appellants is barred by the amended statute of limitations that became effective July 9, 1975. If, however, plaintiffs’ cause of action against the Sieradzki interests was barred by running of the statute of limitations before July 9, 1975, then plaintiffs’ malpractice claim against appellants is not barred, because the statute of limitations as it was constituted before the July 9, 1975, amendment controls.

The record before us does not make clear or contain a finding as to when the statute ran so as to bar plaintiffs from bringing a lawsuit against the Sieradzki interests. Consequently, we remand this case to the trial court for appropriate proceedings to establish that date; only in so doing can the issue of whether accelerated judgment in favor of appellants should properly be entered be decided.

We have considered the issues plaintiffs raise in their, cross-appeal and find them to be without merit.

Remanded.

       390 Mich 739; 213 NW2d 185 (1973). See also, Weiss v Bigman, 84 Mich App 487, 493; 270 NW2d 5 (1978), Leary v Rupp, 89 Mich App 145, 148; 280 NW2d 466 (1979).

        Weiss v Bigman, supra, Quinlan v Gudes, 2 Mich App 506, 509; 140 NW2d 782 (1966).

       18 ALR3d 978, 986.

       406 Mich 275; 278 NW2d 41 (1979).

       Id at 277.

       See, Boyer v Vandenbrink, 98 Mich App 772; 293 NW2d 687 (1980).