Markiewicz v. Markiewicz

SARAH MARIE MARKIEWICZ, Plaintiff-Appellant, v. DAVID RANDAL MARKIEWICZ, Defendant-Appellee.

No. 355774

Court of Appeals of Michigan

March 24, 2022

UNPUBLISHED

Macomb Circuit Court Family Division LC No. 2019-003236-DM.

Before: Gadola, P.J., and Borrello and M. J. Kelly, JJ.

PER CURIAM.

This appeal involves the disposition of a cryogenically-preserved embryo. As part of divorce proceedings between defendant David Markiewicz, and plaintiff, Sarah Markiewicz, the trial court awarded the embryo to David. Sarah now appeals as of right. For the reasons stated in this opinion, we reverse and remand for further proceedings.

I. BASIC FACTS

David and Sarah married in 2009. During their marriage, they both financially contributed to the creation of a number of embryos using in vitro fertilization (IVF) techniques. The eggs used in the process were from Sarah's sister and the sperm was from David. Using some of the embryos, Sarah gave birth to four children during the marriage.^[1] In 2019, Sarah filed for divorce. The parties were able to resolve all issues, save for the disposition of one remaining embryo, which had been cryogenically preserved.

On September 30, 2020, the parties addressed the issue of the frozen embryo at a hearing. Sarah's lawyer represented that Sarah wanted to keep the embryo, noting that it was probably Sarah's "last chance to have children if she so chooses." Sarah's lawyer offered to include language in the judgment of divorce stating that David would not be responsible-financially or otherwise-if Sarah had a child from the embryo. The lawyer clarified that if David did not want to be the child's father, "we can very easily do that through a judgment." In response David's lawyer stated:

[David] does not want another child. These are [sic] parties are in their 40s, they have four children. He does not want another child born from these embryos that were already-that's how they have their first four children. And to make him responsible for or to have another child that he doesn't choose to have is absolutely, according to the research I've done it's inappropriate and she can't, she can't basically plant [sic] an embryo that he doesn't agree that's going to be planted [sic] when it's his sperm.

David's lawyer added:

[It would be] ridiculous for a child to be out there with my client's sperm and you're going to tell him that he's not financially responsible when there's another child running around that's his. No, he does not want this child to be born, for a child to be born. They have four children. She's in her 40s. To make another child at that time I just don't even understand where the argument is coming from. . . . It's not her egg.

The court asked whether the frozen embryo was marital property. Sarah's lawyer stated, unequivocally, "it is marital property." David's lawyer was less certain, stating: "I don't know," and then clarifying that because it was created with David's sperm, but not Sarah's egg, it was "more his than hers." The trial court held that it was marital property because both David and Sarah had contributed financially to its creation.

The trial court then determined that it would award the frozen embryo to David, reasoning:

I have three, I wanted more, a couple did not go to term, it was all I could ask of from my wife and we retired. I'm the youngest of seven. I didn't want to kill her, you know. Three is a good effort. Five pregnancies and three is a good effort.

You've had four. We're divorcing. She's not pregnant. There's a-it's not science fiction but there's an embryo sitting there that cannot live on its own. It's, it's frozen; it's not triggered into anything. It's easy to say, Hey, we'll write whatever language, you know, you have no financial responsibility. Well, I guess some people wouldn't care. I hear from a lot of them each day, they don't care. If my number's zero, I'll never see her again. That's not everybody and I wouldn't want that knowledge myself around. I'd feel horrible about myself. First, I would be angry that I had no say in it, it was ordered that it go forward completely on the other person's decision, and then I'd feel awful about myself and who knows what would be said about me going forward. And then I would give some legalistic explanation, Well, no. It was in the Judgment that I didn't have to. No, you're still a horrible person. So I don't think it's fair to the plaintiff on this set of facts. So, I guess I will award that marital property to [Sarah], I'm sorry, to [David].

Thereafter, the court entered a written order awarding the frozen embryo to David.^[2]

On November 20, 2020, Sarah moved for reconsideration, contending that she had been unable to brief whether the embryo should be treated as property. She represented that, as a result of legal research and consultation with experts in the medical field, she believed that the embryo should not be considered property. She sought permission to brief the issue. The court denied her motion. This appeal follows.^[3]

II. DUE PROCESS

Sarah argues that she was denied her constitutional right to due process because the trial court did not permit her to present evidence or make an argument regarding the legal status of the embryo. We disagree. Procedural due process requires "notice of the nature of the proceedings, an opportunity to be heard in a meaningful time and manner, and an impartial decisionmaker." Cummings v Wayne Co, 210 Mich.App. 249, 253; 533 N.W.2d 13 (1995). Sarah only argues that she was denied an opportunity to be heard in a meaningful manner. At the hearing on September 30, 2020, Sarah's lawyer stated that the disposition of the embryo was a contested issue. The court then permitted Sarah, through her lawyer, to argue why the embryo should be awarded to Sarah. The trial court did not limit the argument and asked questions where clarification was necessary. Further, although Sarah contends that she was denied an opportunity to present testimony or evidence, she has not directed us to any statements by the trial court that actually prevented her from presenting testimony or evidence at the hearing.^[4]

III. RELIGIOUS FREEDOM AND THIRD-PARTY RIGHTS

Sarah argues that the trial court impeded her religious freedom by awarding the embryo to David. She also argues that the trial court order did not account for any rights her sister may have related to the embryo. Neither issue was raised in the proceedings before the trial court. "Failure to timely raise an issue waives review of that issue on appeal." Baxter v Geurink, 493 Mich. 924 (2013), citing Walters v Nadell, 481 Mich. 377, 387; 751 N.W.2d 431 (2008). Because a waived error is extinguished, there are no errors for this Court to review.

IV. CLASSIFICATION OF A FROZEN EMBRYO DURING DIVORCE

Sarah argues for the first time on appeal that she believes a frozen embryo is a human life, not simply marital property. However, in the proceedings before the trial court, Sarah stated unequivocally that the embryo was marital property, and the trial court agreed. As a result, she is judicially estopped from challenging the determination that the frozen embryo is marital property.

"Judicial estoppel precludes a party from adopting a legal position in conflict with a position taken earlier in the same or related litigation. The doctrine protects the integrity of the judicial and administrative processes." Ford Motor Co v Pub Serv Comm, 221 Mich.App. 370, 382-383; 562 N.W.2d 224 (1997). This Court has held that "[u]nder the doctrine of judicial estoppel, a party that has unequivocally and successfully set forth a position in a prior proceeding is estopped from setting forth an inconsistent position in a later proceeding." Detroit Int'l Bridge Co v Commodities Export Co, 279 Mich.App. 662, 672; 760 N.W.2d 565 (2008). For the doctrine to apply, the party's position in the prior proceeding must have been" 'wholly inconsistent'" with the same party's position in the later proceeding. Szyszlo v Akowitz, 296 Mich.App. 40, 51; 818 N.W.2d 424 (2012), quoting Paschke v Retool Indus, 445 Mich. 502, 510; 519 N.W.2d 441 (1994). The doctrine was developed to prevent parties from playing" 'fast and loose' with the legal system." Paschke, 445 Mich. at 509 (citation omitted). [Wells Fargo Bank, NA v Null, 304 Mich.App. 508, 537; 847 N.W.2d 657 (2014).]

Here, because Sarah unequivocally and successfully argued that the embryo was marital property, she is precluded from advancing an inconsistent argument now.^[5] Because Sarah is judicially estopped from challenging the classification of a frozen embryo as property, we do not-and cannot-address whether, under Michigan law, frozen embryos constitute property subject to equitable distribution.

V. DISPOSITION OF A FROZEN EMBRYO DURING DIVORCE

A. STANDARD OF REVIEW

Sarah next argues that, even if a frozen embryo is considered property, the trial court erred by awarding it to David.^[6] In a divorce case, we review the trial court's factual findings for clear error. Sparks v Sparks, 440 Mich. 141, 151; 485 N.W.2d 893 (1992). "If the findings of fact are upheld, the appellate court must decide whether the dispositive ruling was fair and equitable in light of those facts." Id. at 151-152. That dispositional ruling is to be affirmed unless this Court is left with a firm conviction that the property division was inequitable. Id. at 152.

B. ANALYSIS

"The goal behind dividing marital property is to reach an equitable distribution in light of all the circumstances." Washington v Washington, 283 Mich.App. 667, 673; 770 N.W.2d 908 (2009). Therefore "[a]lthough marital property need not be divided equally, it must be divided equitably in light of a court's evaluation of the parties' contributions faults...