                          STATE OF MICHIGAN

                           COURT OF APPEALS



COMERICA BANK,                                                     UNPUBLISHED
                                                                   July 31, 2018
               Plaintiff-Appellee,

v                                                                  No. 336637
                                                                   Oakland Circuit Court
MICHAEL KELMAN,                                                    LC No. 2012-142821-CK

               Defendant-Appellant,
and

BIRMINGHAM BLOOMFIELD CREDIT
UNION,

               Garnishee Defendant-Appellee.


Before: CAMERON, P.J., and JANSEN and O’CONNELL, JJ.

JANSEN, J. (concurring in part and dissenting in part).

       To the extent that the majority concludes that any disability payments deposited into
Kelman’s BBCU account are exempt under MCL 600.6023(1)(f), I agree. However, I write
separately because my review of the record did not yield any documentary evidence supporting
Kelman’s contention that his disability payments were deposited into his BBCU account.
Because I do not agree that remand is necessary, and I respectfully dissent.

        As the party asserting the exemption, Kelman bore the burden of proving that he was
receiving disability payments, and that those disability payments were being deposited into the
BBCU account. Kelman attached to his brief in support of his objection to the writ of
garnishment the following: the consent judgment against him; the request and writ for
garnishment; the garnishee disclosure; his original objection; the spousal support order from his
divorce; and case law he argued supported his position. What Kelman did not submit was
documentation verifying that he was receiving disability payments, and that those payments were
being deposited into the BBCU account. In my view, Kelman has failed to support his claim that
he is entitled to an exemption under MCL 600.6023(1)(f).

        If no evidence was presented to support Kelman’s contention that he had received
disability payments to the BBCU account that were exempt, the trial court remains unable to
make factual findings regarding how much of the BBCU account balance is exempt from

                                                -1-
garnishment under MCL 600.6023(1)(f). By remanding to the trial court to make factual
findings regarding what amount of the BBCU account reflects disability payments, the majority
allows Kelman to take another bite of the apple, sort to speak. I do not find remand to be
appropriate on this record. Accordingly, I would affirm.


                                                         /s/ Kathleen Jansen




                                             -2-
