Karungi v. Ejalu

GLORIA KATO KARUNGI, Plaintiff/Counterdefendant-Appellant/Cross-Appellee, v. RONALD LEE EJALU, Defendant/Counterplaintiff-Appellee/Cross-Appellant.

No. 351165

Court of Appeals of Michigan

August 19, 2021

UNPUBLISHED

Oakland Circuit Court LC No. 2016-841198-DS

Before: Gadola, P.J., and Jansen and O'Brien, JJ.

PER CURIAM.

In this litigation regarding cryopreserved embryos, which returns to this Court after previously being considered and remanded for further proceedings, ^[1] plaintiff/counterdefendant (plaintiff) Gloria Kato Karungi, appeals as of right the trial court's opinion and order dismissing plaintiff's claim for custody of the embryos. Defendant/Counterplaintiff (Defendant), Ronald Lee Ejalu, cross-appeals as of right that same opinion and order, which also denied his request for sanctions in the form of attorney fees and costs. In his cross-appeal, defendant also challenges the trial court's order reconsidering its prior order requiring plaintiff to pay $50, 000 as a security bond for costs. We affirm in part and reverse in part.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

This Court provided a description of the relevant procedural and factual history in its previous opinion:

Plaintiff and defendant are the parents of a daughter[, EKE ] who was naturally conceived. Plaintiff and defendant were never married, and despite the end of their relationship in 2013, in 2015, they entered into contractual agreements with an in vitro fertilization (IVF) clinic for the cryopreservation of embryos generated through their genetic contributions. [EKE] has been diagnosed with sickle cell disease, and plaintiff seeks implantation of an embryo in order to give birth to a healthy child and then use the stem cells from that child's umbilical cord for transplantation to [EKE] to cure her disease.

The present dispute arose when defendant no longer wished to follow through with the IVF. At that time, the parties were in a dispute for support of [EKE], and plaintiff initiated this matter in conjunction with that dispute. Plaintiff did not file a separate or amended complaint, but rather filed a motion as part of her support action contending that the embryos were subject to a custody determination. A consent judgment was entered under the "DS" (support case) designation that addressed parenting time, custody, and support for [EKE], but it did not resolve the embryo dispute. Rather the consent judgment included a paragraph that recognized the existence of a controversy pertaining to the embryos and stated that the "embryo issue is preserved for resolution by this Court in this case." After the judgment was entered, defendant filed a motion for summary disposition with respect to plaintiff's argument for custody of the embryos, which the trial court granted pursuant to MCR 2.116(I)(2). In a written opinion, the trial court pointed out that the parties were arguing a child custody case under a support case designation and, as such, held that it did not have subject-matter jurisdiction. The trial court reasoned, "[T]he Family Support Act-as written-provides no authority for this court to consider the disposition of embryos in the context of a child support case. Accordingly, the court has no legal authority to award 'custody' of the embryos to either party in this case." [Karungi v Ejalu, unpublished per curiam opinion of the Court of Appeals, issued September 26, 2017 (Docket No. 337152), pp 1-2.]

The panel then vacated the trial court's ruling that it did not have subject matter jurisdiction, reasoning that the court improperly looked to the case caption designation rather than the relief sought. Id. at 2. Afterwards, the panel pointed out that the parties had entered into an agreement with the IVF clinic in which they agreed that the cryopreserved embryos "shall be considered the joint property of both recipient and partner who are deemed to be the legal owners," and also agreed to arbitrate "any and all disputes relating to this agreement . . . ." Id. at 2-3. The panel opined that the trial court may have reached a different conclusion on whether it had subject matter jurisdiction had it considered the existence of this contract. Id. at 3. The panel ultimately declined, however, to reach a decision on whether subject matter jurisdiction existed, and remanded for the trial court to make that determination in the first instance, explicitly ordering the court to consider the contract and the affect that the contract could have on its jurisdictional decision. Id. at 4.

In dissent, Judge Jansen opined that it was improper for the majority to inject the contract issue into the case, and that there was otherwise no reason to remand the case to the trial court to determine whether it had subject matter jurisdiction. Karungi, unpub op at 2 (Jansen, J., dissenting). The dissent explained that, while it agreed that the trial court erred by basing its subject-matter-jurisdiction ruling on the case designation, the trial court otherwise "lacked legal authority to consider the disposition of the embryos in the context of a custody case." Id. (emphasis omitted). Then-Judge (now Chief Judge) Murray filed a concurring opinion largely responding to the dissent, explaining that "the majority opinion, with explicit agreement by the dissent, properly concludes that the trial court's reliance upon the case designation to dismiss the case was in error. This is the only holding of the Court." Karungi, unpub op at 1 (Murray, J., concurring). According to Judge Murray, the majority did not make "any conclusive statements about what the contract provides for or whether it is binding (or waived)," and that "a remand on those issues, as well as on the issue of how to address and resolve issues surrounding the embryos if the matter is not sent to arbitration, is best left for the trial court to decide in the first instance." Id. at 2.

After this Court's opinion was issued, defendant applied for leave to appeal with our Supreme Court. Karungi v Ejalu, 501 Mich. 1051 (2018). Although the application for leave was denied, then-Justice (now-Chief Justice) McCormack issued a concurring statement with the order, stating in pertinent part that "the trial court should not avoid the question argued by the parties: whether frozen embryos are persons subject to a custody determination." Id. (McCormack, J., concurring).

During the remand proceedings, the trial court ordered the parties to submit briefs addressing the issues raised in the majority opinion of this Court-primarily whether the trial court had subject-matter jurisdiction. In addressing that issue, plaintiff reiterated her arguments that the frozen embryos were living human organisms and the proceedings were governed by child-custody law. In that same regard, plaintiff moved the trial court to appoint a guardian ad litem (GAL) to represent the interests of the embryos. Defendant, in response, argued that this Court had determined that the case was a contract dispute about joint property, and ruled that this case was not a custody dispute. When plaintiff continued to make arguments related to appointment of a GAL, the life-status of the embryos, and the applicability of child-custody law, defendant moved the trial court to order plaintiff to post a security bond for costs.

The trial court denied the motion to appoint a GAL, but ordered plaintiff to pay a $50, 000 security bond for costs. Plaintiff moved the trial court to reconsider that decision, arguing that her claims were legitimate and that she was indigent. Plaintiff supplied the trial court with an affidavit supporting her claim of indigency. The trial court ultimately granted the motion for reconsideration, reasoning that plaintiff's arguments were not frivolous and that she was impoverished. Consequently, plaintiff was no longer ordered to pay the $50, 000 security bond for costs.

Shortly after that, the trial court determined that it had subject-matter jurisdiction to consider the dispute. The trial court then ordered the parties to brief the contract issues identified by this Court in its first opinion in this case. Plaintiff, once again, reiterated her arguments related to the life-status of the embryo and child-custody law. Defendant moved the trial court to sanction plaintiff for making the arguments, stating that the law-of-the-case doctrine required the trial court to apply contract law and address the joint property dispute.

As related to the IVF Michigan contracts, plaintiff argued that the language referring to the embryos as joint property was an internal policy of IVF Michigan, and not the agreement of plaintiff and defendant. Plaintiff also argued that the arbitration clause had been waived by the parties, that referring to the embryos as property is a violation of public policy, and that the IVF Michigan contract was an adhesion contract. Lastly, plaintiff alleged that she and defendant have a private contract between themselves, in which they agreed that defendant would waive any parental rights to a child produced, and would not be required to pay child support. Plaintiff claimed, in an affidavit, that they had an oral agreement to that effect, as well as a signed and written agreement that defendant refused to turn over to plaintiff. She supplied an unsigned version of the alleged contract to the trial court, which was titled as a "donor agreement" and addressed defendant's and plaintiff's rights should a child be produced via artificial insemination.

Defendant on the other hand, argued that the IVF Michigan contract's reference to the embryos as joint property was binding. He agreed with plaintiff, however, that the arbitration clause had been waived by the parties' decision to litigate in court. Defendant noted that the law in...