                           STATE OF MICHIGAN

                           COURT OF APPEALS



In re Estate of CLIFFMAN.


PHILLIP CARTER, ELMER CARTER, DAVID                                UNPUBLISHED
CARTER, and DOUG CARTER,                                           June 9, 2015

               Appellants/Cross-Appellees,

v                                                                  No. 321174
                                                                   Allegan Probate Court
RICHARD D. PERSINGER, Personal                                     LC No. 13-058358-DE
Representative of the Estate of GORDON JOHN
CLIFFMAN,

               Appellee,

and

BETTY WOODWYK and VIRGINIA WILSON,

               Appellees/Cross-Appellants.


Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

        Appellants/cross-appellees Phillip, Elmer, David and Doug Carter appeal as of right the
probate court’s order granting appellees/cross-appellants Betty Woodwyk and Virgina Wilson’s
petition for declaratory relief, which precluded appellants from sharing in a wrongful-death
settlement. Appellees/cross-appellants cross-appeal the order denying Woodwyk’s motion to set
aside an earlier order approving the settlement as well as attorney fees paid from the settlement.
Because appellants are not entitled to a share in the proceeds of the wrongful-death settlement
and the trial court did not err by approving a disputed attorney referral fee, we affirm.

       On October 2, 2012, John Gordon Cliffman died from injuries he suffered in an
automobile accident. It is undisputed that Cliffman had no children, he died intestate, and his
wife Betty Carter died in 1996. Appellants are Betty Carter’s sons, and appellees Woodwyk and
Wilson are Cliffman’s sisters.


                                               -1-
        The probate court appointed Phillip Carter as personal representative of the Estate.
Phillip hired attorney Jeffrey Buckman to represent the Estate in a wrongful-death action and
agreed that Buckman would receive a contingency fee of one-third of what he obtained on behalf
of the Estate. Phillip also hired attorney Kenneth Puzycki at an hourly rate to perform the
necessary services to process the Estate through probate.

        On December 18, 2013, the probate court approved a settlement between the Estate,
Progressive Insurance Company, and Citizens Insurance Company. This settlement resulted in
$300,000 for the estate minus a one-third contingency fee paid to Buckman. From his
contingency fee, Buckman also paid Puzycki a referral fee. Woodwyk then moved the probate
court to set aside its December 18, 2013 order approving the settlement, alleging that, among
other matters, the referral fee paid by Buckman to Puzycki was improper because the Estate was
already paying Puzycki an hourly rate. The probate court denied the motion, stating that the
referral fee to Puzycki did not harm the Estate; rather, fee sharing was standard practice and
burdened only Buckman because the Estate would be paying the same percentage regardless.

        Thereafter, Woodwyk and Wilson petitioned the probate court to declare that appellants
could not claim a share of the proceeds from the wrongful-death settlement, arguing that,
pursuant to In re Combs Estate, 257 Mich App 622; 669 NW2d 313 (2003), appellants could not
recover damages under MCL 600.2922(3)(b) because their mother, Betty Carter, predeceased
Cliffman. The probate court granted Woodwyk and Wilson’s petition. Appellants now appeal as
of right seeking a share in the wrongful-death settlement, and appellees have filed a cross appeal
challenging the propriety of the referral fee Buckman paid to Puzycki.

        On appeal, appellant’s claim that they are entitled to share in the wrongful-death
settlement proceeds because, under MCL 600.2922(3)(b), when there has been a settlement of a
wrongful death claim, “[t]he children of the deceased’s spouse” may be entitled to a share in the
recovery if they suffered damages and survived the deceased. This argument is plainly without
merit, however, because the issue of whether a decedent’s stepchildren may share in a recovery
from a wrongful-death settlement, when their parent who was married to the decedent has
predeceased the decedent, was unequivocally settled by this Court in In re Combs Estate, 257
Mich App at 625. There, this Court considered the plain language of MCL 600.2922(3)(b) and
succinctly explained that the term “spouse” refers to “a married person.” Id., citing Cornwell v
Dempsey, 111 Mich App 68, 70; 315 NW2d 150 (1981). As a matter of law, it is well-settled in
Michigan that the death of a spouse terminates a marriage. See In re Certified Question from US
Dist Court for W Mich, 493 Mich 70, 79; 825 NW2d 566 (2012); Tiedman v Tiedman, 400 Mich
571, 576; 255 NW2d 632 (1977); Byington v Byington, 224 Mich App 103, 109; 568 NW2d 141
(1997). Given that death terminates a marriage, upon one party’s death, the individuals are no
longer married and the surviving individual no longer has a “spouse” within the meaning of
MCL 600.2922(3)(b). In re Combs Estate, 257 Mich App at 625. As a result, stepchildren are
not entitled to damages under MCL 600.2922(3)(b) when their parent, who was married to the
decedent, has predeceased the decedent because these children are not “children of the
deceased’s spouse.” In re Combs Estate, 257 Mich App at 625.

       It follows that, in this case, appellants are not entitled to a share in the wrongful-death
settlement proceeds because their mother predeceased Cliffman in 1996, meaning that, at the
time of his death in 2012, Cliffman had no “spouse” and thus there are no spouse’s children

                                               -2-
entitled to recovery under MCL 600.2922(3)(b). See In re Combs Estate, 257 Mich App at 625.
Indeed, appellants do not contest that this Court’s holding in In re Combs Estate precludes their
recovery under MCL 600.2922(3)(b). Instead, appellants argue that In re Combs Estate was
wrongly decided. In re Combs Estate is, however, binding precedent of this Court. See MCR
7.215(J)(1). Moreover, we do not disagree with In re Combs Estate, and we decline appellants’
request to express such disagreement or to convene a special panel on this issue. See MCR
7.215(J)(2), (3). In short, under binding appellate precedent, appellants are not entitled to
recovery under MCL 600.2922(3)(b), and thus the trial court did not err by concluding that they
could not share in the wrongful-death settlement proceeds at issue in this case.

        Next, in their cross-appeal, Woodwyk and Wilson argue that the probate court erred by
determining that the referral fee paid by Buckman to Puzycki was valid. Contrary to this
assertion, MRPC 1.5(e) permits attorneys who do not work in the same firm to divide a fee
between each other. See Morris & Doherty, PC v Lockwood, 259 Mich App 38, 45; 672 NW2d
884 (2003). Specifically, “[a] division of a fee between lawyers who are not in the same firm
may be made only if: (1) the client is advised of and does not object to the participation of all
the lawyers involved; and (2) the total fee is reasonable.” MRPC 1.5(e). Here, at all relevant
times, the client was Philip acting as personal representative of the Estate. Appellees offer no
evidence to indicate that Philip was unaware of the referral fee or that he objected to this fee or
Puzycki’s participation. Indeed, at this time it is Woodwyk and Wilson, not Philip, objecting to
this fee. Moreover, Woodwyk and Wilson also do not argue that the one-third contingency fee to
Buckman is unreasonable. And, indeed, “the receipt, retention, or sharing” of a one-third
contingency fee in a wrongful-death case is “deemed fair and reasonable” according to MCR
8.121(A) and (B). Thus, it appears that MRPC 1.5(e) permits Buckman to pay Puzycki a referral
fee from his contingency fee.

        Woodwyk and Wilson complain on appeal that Puzycki’s referral agreement with
Buckman was not specifically set forth in writing. However, Buckman’s contingent fee
agreement with the Estate was set forth in writing as required by MCR 8.121(F) and MCR
5.313(B), and appellees point to no authority requiring that the referral-fee agreement between
Puzycki and Buckman also be in writing. Indeed, it is not disputed that the referral fee to
Puzycki was paid from Buckman’s contingency fee rather than from the Estate. Therefore, even
if the referral-fee agreement were invalid, it is unclear why Woodwyk and Wilson contend that
this referral fee should revert to the Estate rather than to Buckman given that Buckman had a
written agreement to receive one-third of the settlement and Puzycki was paid from Buckman’s
existing fee. Woodwyk and Wilson make no argument to support this contention and have thus
abandoned it. Gentris v State Farm Mut Auto Ins Co, 297 Mich App 354, 366-367; 824 NW2d
609 (2012). In sum, because there is no indication that Philip was unaware of, or objected to,
Puzycki’s referral fee, and because the total fee agreement was reasonable, the probate court
properly held that the referral fee was valid. MRPC 1.5(e).




                                                -3-
Affirmed.



                  /s/ Joel P. Hoekstra
                  /s/ Peter D. O’Connell
                  /s/ Christopher M. Murray




            -4-
