STATE OF MICHIGAN
SUPREME COURT
Michigan Supreme Court
Lansing, Michigan 48909
Syllabus
Chief Justice
Conrad L.Mallett, Jr.
Justices
James H. Brickley
Michael F. Cavanagh
Patricia J. Boyle
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
This syllabus was prepared by the Reporter of
Decisions. Reporter of Decisions
William F. Haggerty
NORTH OTTAWA COMMUNITY HOSPITAL v KIEFT
Docket No. 105156. Argued March 4, 1998 (Calendar No. 12). Decided May 19,
1998.
Ottawa Circuit Court, Wesley J. Nykamp, J.
Court of Appeals, M. J. Kelly and A. J. Ferrara, JJ., Markey, P.J. (Docket No.
173302).
214 Mich App 518; 543 NW2d 37 (1995).
Michigan Supreme Court
Lansing, Michigan 48909
Opinion
Chief Justice
Conrad L.Mallett, Jr.
Justices
James H. Brickley
Michael F. Cavanagh
Patricia J. Boyle
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
FILED MAY 19, 1998
NORTH OTTAWA COMMUNITY HOSPITAL,
Plaintiff-Appellee,
v No. 105156
BARBARA KIEFT,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
BRICKLEY, J.
Defendant Barbara Kieft, whose deceased husband David
received medical services from plaintiff North Ottawa
Community Hospital, appeals the circuit court’s grant of
summary disposition for plaintiff in its collection action
against her. She defends this action on the basis of a
provision of the married women’s property act (MWPA),1 which
the Court of Appeals found to be unconstitutional.
For the reasons that follow, we find that the MWPA is
constitutional and that it bars a judgment against Ms. Kieft
for her husband’s medical expenses. Consistent with our
findings today, we abrogate the common-law doctrine of
necessaries and hold that neither a husband nor a wife is
liable, absent express agreement, for necessaries supplied
to the other. The decision of the Court of Appeals is
reversed, and we remand this case to the circuit court for
entry of judgment in favor of defendant.
I
Barbara Kieft and David Kieft were a married couple.
David received health care services from North Ottawa
Community Hospital and, upon his death, left an insolvent
estate. The hospital attempted to recover from Ms. Kieft
the unpaid hospital charges, which amounted to $22,191.81.
From
the materials at hand, it appears that the parties agree
that Ms. Kieft did not contract for David’s care, nor did
she agree to guarantee payment for his care.
To recover the outstanding debt, North Ottawa brought
this suit against Ms. Kieft. In its complaint, North Ottawa
stated that Ms. Kieft had “a common law and/or statutory
obligation to pay for necessaries and/or support of the
parties.” Ms. Kieft answered that “she has no duty and has
never assumed the obligation of paying for the services
rendered to David Kieft.”
North Ottawa moved for summary disposition, pursuant to
MCR 2.116 (C)(9), (10). Noting Ms. Kieft’s denial of an
obligation to pay for Mr. Kieft’s health care expenses,
North Ottawa stated in its motion that “it is well
established Michigan law, that each spouse is obligated to
pay for the medical necessaries rendered to the spouse, if
they were rendered during the marriage.” An accompanying
brief cited Borgess Medical Center v Smith, 149 Mich App
796; 386 NW2d 684 (1986), and Bronson Methodist Hosp v
LaRoy, 171 Mich App 729; 430 NW2d 817 (1988), as authority
for the obligation of the wife to pay the debts of the
husband.
The circuit court granted summary disposition, finding
that “pursuant to Borgess at 801, this Court must hold that
the wife is liable for the medical necessities of her
husband.” The court then entered judgment in favor of
North Ottawa for the full $22,191.81, plus costs and
interest.
The Court of Appeals affirmed, ruling that the MWPA is
unconstitutional, and held Ms. Kieft liable for her
husband’s medical necessities. 213 Mich 518; 543 NW2d 37
(1995). We granted leave to appeal.2
II
This appeal presents three separate but interrelated
questions. First, does the MWPA (and a related provision
in the Michigan Constitution) preclude North Ottawa from
recovering from Ms. Kieft health care expenses incurred by
her deceased husband? Second, if the provisions bar
judgment against Ms. Kieft for her husband’s debts, are
those provisions violative of the Equal Protection Clauses
of the Michigan and federal constitutions? Finally, in
light of equal protection considerations, does the
common-law necessaries doctrine remain valid?
A
It is well known that the common law imposed
significant economic disabilities on married women, and that
property rights of women in Michigan were virtually
nonexistent before the enactment of married women’s property
acts. Burdeno v Amperse, 14 Mich 91 (1866), and Tong v
Marvin, 15 Mich 60 (1866). At common law, a married woman,
by her coverture,3 enjoyed no individual rights pertaining
to the property she may have owned before the marriage or
acquired during the marriage. The state of coverture was
virtually a legal disability whereby a woman lost the
capacity to contract, sue, or be sued individually. “In
short, [coverture] stripped a married woman of virtually all
means of self-support.” Bartrom v Adjustment Bureau, Inc,
618 NE2d 1, 3 (Ind, 1993).4
In an apparent effort to place married women on a more
equal footing with single women, the Michigan Legislature
abrogated some of the harsh features imposed on women at
common law by enacting a series of married women’s property
acts. The acts included enlarging married women’s property
and contractual rights, thereby removing some of the
disabilities of coverture.5 In 1981, the Legislature
enacted the most recent version of the MWPA, declaring that
a wife’s separate property is not subject to her husband’s
debts:
If a woman acquires real or personal property
before marriage or becomes entitled to or
acquires, after marriage, real or personal
property through gift, grant, inheritance, devise,
or other manner, that property is and shall remain
the property of the woman and be a part of the
woman’s estate. She may contract with respect to
the property, sell, transfer, mortgage, convey,
devise, or bequeath the property in the same
manner and with the same effect as if she were
unmarried. The property shall not be liable for
the debts, obligations, or engagements of any
other person, including the woman’s husband,
except as provided in this act. [MCL 557.21(1);
MSA 26.165(1)(1) (emphasis added).]
A later provision in the same act empowers a married woman
to contract, but specifies that she may be sued separately
on her contracts and that a husband is not liable upon any
contract made by his wife “unless the husband acted as a
surety, co-signor [sic], or guarantor on the contract.” MCL
557.24(2); MSA 26.165(4)(2).
Advancing notions of equity are also reflected in the
last three constitutions adopted by the people of Michigan,
with the most recent providing:
The disabilities of coverture as to property
are abolished. The real and personal estate of
every woman acquired before marriage and all real
and personal property to which she may afterwards
become entitled shall be and remain the estate and
property of such woman, and shall not be liable
for the debts, obligations or engagements of her
husband, and may be dealt with and disposed of by
her as if she were unmarried. Dower may be
relinquished or conveyed as provided by law.
[Const 1963, art 10, § 1 (emphasis added).][6]
Although the foregoing provisions of the MWPA and the
Michigan Constitution enlarged rights and removed
disabilities imposed on married women at common law, the
common-law necessaries doctrine, which essentially makes
husbands liable for necessities that are provided to their
wives, has remained unmodified in this state. See Pritchard
v Bigger, 288 Mich 447, 450; 285 NW 17 (1939) (opinion of
Bushnell, J.), In re LaFreniere’s Estate, 323 Mich 562, 564;
36 NW2d 147 (1949), Detroit v Eisele, 362 Mich 684, 686; 108
NW2d 763 (1961).7 The doctrine, which attempted to “obviate
some of the victimization which coverture would otherwise
have permitted,” has been characterized as providing a
common-law “mechanism by which the duty of support could be
enforced.” Bartrom, 618 NE2d 3.
Recently, creditors and husbands in a number of states,
including Michigan, have asserted a constitutional equal
protection challenge to the necessaries doctrine, demanding
reexamination of the doctrine’s modern viability. As noted
above, at common law, the doctrine imposed liability only
on the husband for his family’s necessaries, while not
recognizing a reciprocal liability on the part of the wife
for the husband’s necessaries, with the primary purpose
being to assure that dependent wives received support from
neglectful husbands. Note, The unnecessary doctrine of
necessaries, 82 Mich L R 1767 (1984). This
gender-discriminatory application has more recently resulted
in the abrogation of the doctrine in some states, Condore v
Prince George’s Co, 289 Md 516; 425 A2d 1011 (1981);
Schilling v Bedford Co Memorial Hosp, 225 Va 539; 303 SE2d
905 (1983), while other states have expanded the doctrine to
apply equally or quasiequally to both spouses. North
Carolina Baptist Hosps v Harris, 319 NC 347; 354 SE2d 471
(1987); Jersey Shore Medical Center-Fitkin Hosp v Baum
Estate, 84 NJ 137; 417 A2d 1003 (1980).
B
The common-law necessaries doctrine was squarely before
our Court of Appeals in Borgess Medical Center, supra. In
that case, a married man without assets died in 1983, and
Borgess Medical Center sued his widow for the cost of
medical services provided to him. After noting that the
MWPA made it clear that a wife is not responsible for her
husband’s debts, the Borgess Court suggested that it was
time for a change in the law, referencing Jersey Shore
Medical Center, supra, in which the New Jersey Supreme Court
held both spouses liable for each other’s necessaries on the
basis of the court’s view of marriage as a partnership. The
Borgess Court stated:
In Jersey Shore Medical Center-Fitkin
Hospital v Estate of Baum, 84 NJ 137; 417 A2d 1003
(1980), the New Jersey Supreme Court found that
the New Jersey Married Woman’s Act, NJSA 37:2-15,
if read literally, would bar liability for either
spouse for the medical debts of the other.
While there is no Michigan case addressing
this issue, several cases have emerged from our
sister states within the last 25 years on this
subject. In holding that a married woman is
responsible for her husband’s medical necessities,
the Jersey Shore Court relied upon Orr v Orr, 440
US 268; 99 S Ct 1102; 59 L Ed 2d 306 (1979) (where
the United States Supreme Court held that a
statute under which husbands, but not wives, might
be ordered to pay alimony violated the equal
protection clause of the Fourteenth Amendment).
If it is true, as plaintiff asserts, that the New
Jersey statute did not bar the court from finding
the wife liable for her husband’s medical
expenses, the New Jersey Supreme Court would not
have found it necessary to rely upon
constitutional considerations but would have
merely changed the common law. [149 Mich App
798-800.]
From there, the Court embarked on a discussion that
apparently served both to expand the common law to give
wives the responsibility of paying the medical expenses of
husbands, and effectively to hold the statute
unconstitutional. However, the discussion of the
constitutional question was, at best, indirect:
In Manatee Convalescent Center, Inc v
McDonald, 392 So 2d 1356, 1357 (Fla App, 1980),
the Second District Court of Appeals stated in
part:
“The law is not static. It must keep pace
with changes in society, for the doctrine of stare
decisis is not an iron mold which can never be
changed.”
* * *
The Manatee Court concluded:
“Changing times demand reexamination of
seemingly unchangeable legal dogma. Equality
under law and even handed treatment of the sexes
in the modern marketplace must also carry the
burden of responsibility which goes with the
benefits.” 392 So 2d 1358.
We find the law from our sister states to be
persuasive and, therefore, we hold that a wife is
liable for the medical necessaries of her husband.
The question still remaining is what remedy should
this Court provide. We do not think that it is
equitable in this case to hold the defendant
liable where both the plaintiff and the defendant
have relied on prior law (when the expense was
incurred) which we have changed today to keep pace
with the
changes in society.[8] We adopt this principle
prospectively so that it applies only to debts
incurred after the date of this decision.
[Borgess Medical Center, 149 Mich App 800-801.]
After reviewing the New Jersey case on which Borgess Medical
Center primarily relied, it is evident that the Court was
attempting to explain its expansion of the common law.9
C
Relying on analysis from Borgess, the Court of Appeals
in the present case held the MWPA to be unconstitutional and
found defendant Barbara Kieft liable for her husband’s
medical necessities. The analysis is brief. After
summarizing the history of this case and noting the decision
in Borgess, the majority stated:
Article 1, § 2 of the Michigan Constitution
of 1963, as well as the Fourteenth Amendment of
the United States Constitution provides for equal
protection of the law. The Court in Borgess
Medical Center, supra, concluded by necessary
implication that the married women’s property act
is unconstitutional. We agree. [214 Mich App
520.]
Beyond “[w]e agree,” the majority did not explain its
conclusion that Borgess correctly found the statute to be
unconstitutional.10
III
In the present case, Ms. Kieft argues that the Borgess
Court’s expansion of the necessaries doctrine imposing
liability on wives was inappropriate because such an
extension of the common law is specifically precluded by
statute and the Michigan Constitution. We agree. The final
sentence of MCL 557.21(1); MSA 26.165(1)(1) expressly
indicates that such an obligation cannot be imposed:
If a woman acquires real or personal property
before marriage or becomes entitled to or
acquires, after marriage, real or personal
property through gift, grant, inheritance, devise,
or other manner, that property is and shall remain
the property of the woman and be a part of the
woman’s estate. She may contract with respect to
the property, sell, transfer, mortgage, convey,
devise, or bequeath the property in the same
manner and with the same effect as if she were
unmarried. The property shall not be liable for
the debts, obligations, or engagements of any
other person, including the woman’s husband,
except as provided in this act. [Emphasis added.]
As spelled out above, the language in art 10, § 1 of the
Michigan Constitution provides similar protection. We
overrule Borgess to the extent that its expansion of the
necessaries doctrine, imposing a corresponding obligation on
wives, is inconsistent with both the MWPA and the Michigan
Constitution.
IV
We now reach the principal question presented in this
appeal, namely, whether art 10, § 1 of the Michigan
Constitution and the final sentence of MCL 557.21(1); MSA
26.165(1)(1) are constitutional in light of the equal
protection guarantees provided under both art 1, § 2 of the
Michigan Constitution and the Fourteenth Amendment of the
United States Constitution.11
The United States Supreme Court has held that, for a
gender-based classification to pass constitutional muster,
it must serve an important governmental objective and be
substantially related to the achievement of that objective.
Califano v Webster, 430 US 313, 317; 97 S Ct 1192; 51 L Ed
2d 360 (1977), quoting Craig v Boren, 429 US 190, 197; 97 S
Ct 451; 50 L Ed 2d 397 (1976). Employing this standard, the
Supreme Court has overturned statutory gender
classifications where the state’s purpose could be achieved
by gender-neutral regulation. Orr v Orr, 440 US 268; 99 S
Ct 1102; 59 L Ed 2d 306 (1979) (a state statute allowing
alimony for wives, but not for husbands, was held invalid).
However, the Court has also upheld a gender-discriminatory
classification if necessary to compensate for past gender
discrimination. Kahn v Shevin, 416 US 351; 94 S Ct 1734; 40
L Ed 2d 189 (1974) (a Florida statute granting widows, but
not widowers, a property tax exemption was upheld because
the state’s objective to cushion widows’ greater financial
difficulties was held constitutionally valid).
We find that both art 10, § 1 of the Michigan
Constitution and the MWPA, on their own, form a
gender-neutral scheme under which each spouse is independent
of the other. On their faces, the provisions state an
unremarkable proposition: A married woman is not liable for
a contract to which she is not a party. As indicated above,
these provisions have the purpose and effect of relieving
married women of the disabilities of coverture and place
them on an equal footing with respect to contract and
property rights with both unmarried women and men.
Accordingly, we find that these provisions are designed to
promote, rather than hinder, economic equality.12
In light of the foregoing, we are satisfied that the
MWPA and art 10, § 1 of the Michigan Constitution are not
violative of the Equal Protection Clauses of the Michigan
and federal constitutions. To the extent that it held
otherwise, Borgess, supra, is overruled. As explained
above, for historical reasons, there was greater need to
legislate the economic equality of women, and, therefore,
the absence of corresponding provisions (other than the
provision protecting the property of married men, MCL
557.24[2]; MSA 26.165[4][2]) regarding the economic status
of men is readily explainable on that basis.
However, the enforcement of the provisions under review
today may cause a disparate effect on married men if a court
were to apply the common-law necessaries doctrine that holds
a husband liable for the necessary medical expenses of his
wife.13 There is no question that, when applied to married
men only, the necessaries doctrine qualifies as gender-based
discrimination and offends the principle of equal protection
of the law. Clearly, the underlying governmental objective
of the common-law doctrine was to provide for a dependent
wife who surrendered all her property rights to her husband
at the time of marriage. Thus, the common-law necessaries
doctrine imposing the support burden only on a husband could
be justified in the past because it was substantially
related to the important governmental objective of providing
necessary support to dependent wives. However, the
contemporary reality of women owning property, working
outside the home, and otherwise contributing to their own
economic support calls for the abrogation of this
sex-discriminatory doctrine from early common law.14
V
We find that the provisions of the MWPA and Michigan
Constitution under review today preclude North Ottawa from
recovering from Ms. Kieft health care expenses incurred by
her deceased husband. We also find that these provisions do
not violate the Equal Protection Clauses of the Michigan and
federal constitutions. However, as traditionally
formulated, the common-law necessaries doctrine violates
equal protection principles, and we remedy this
unconstitutionality by abrogating the doctrine, holding that
neither a husband nor a wife is liable, absent express
agreement, for necessaries supplied to the other. We
reverse the decision of the Court
of Appeals and remand this case to the circuit court for
entry of judgment in favor of defendant.
Mallett, C.J., and Cavanagh, Boyle, Weaver, Kelly, and
Taylor, JJ., concurred with Brickley, J.
North Ottawa Community Hosp v Kieft
Bussard & Sielski (by James W. Bussard)[234˝
Washington, Grand Haven, MI 49417] [(616) 842-5210] for the
defendant-appellant.
Amicus Curiae:
Robert E. Butcher [3133 Van Horn, P.O. Box 475,
Trenton, MI 48183] [(313) 675-3990] for Barbara Kieft.
1 The pertinent provision states:
If a woman acquires real or personal property before
marriage or becomes entitled to or acquires, after
marriage, real or personal property through gift, grant,
inheritance, devise, or other manner, that property is
and shall remain the property of the woman and be a part
of the woman’s estate. She may contract with respect to
the property, sell, transfer, mortgage, convey, devise,
or bequeath the property in the same manner and with the
same effect as if she were unmarried. The property shall
not be liable for the debts, obligations, or engagements
of any other person, including the woman’s husband,
except as provided in this act. [MCL 557.21(1); MSA
26.165(1) (emphasis added).]
2 After oral argument was ordered, briefs were submitted
by defendant-appellant Barbara Kieft, and amicus curiae in support
of Ms. Kieft’s position. The clerk advises that no brief was
submitted by plaintiff-appellee North Ottawa.
3 Coverture is defined as “[t]he condition or state of a
married woman. Sometimes [it is] used elliptically to describe the
legal disability which formerly existed at common law from a state
of coverture . . . .” Black’s Law Dictionary (6th ed, p 366).
4 See, generally, Salmon, Women and the Law of Property
in Early America (Chapel Hill: Univ of North Carolina Press,
1986).
5 See 1855 PA 168, 1911 PA 196, 1917 PA 158, and 1981 PA
216. Although there is a paucity of published research addressing
the motives behind the development of married women’s property
acts, they seem to have been a product of the women’s suffrage
movement. See Kanowitz, Women and The Law, p 40; Johnston, Sex and
property: The common law tradition, the law school curriculum, and
developments toward equality, 47 NYU L R 1033, 1062 (1972).
6 In the past, there has been some question
whether the MWPA remains viable in light of the
constitutional language which provides that “[t]he
disabilities of coverture . . . are abolished.” See City
Finance Co v Kloostra, 47 Mich App 276; 209 NW2d 498 (1973),
and Michigan Nat’l Leasing Corp v Cardillo, 103 Mich App
427; 302 NW2d 888 (1981). We granted leave to appeal this
question in Cardillo, but later granted reconsideration,
saying, “It appearing that this case is not
jurisprudentially significant in view of the enactment of
1982 [sic] PA 216, the [grant] order is vacated and leave to
appeal is denied.” 412 Mich 857, 858 (1982). We find art
10, § 1 of the constitution to be a clear expression that
all the disabilities of coverture are abolished. Our
examination of the remaining language in art 10, § 1 leads
us to the conclusion that the Legislature retains the
ability to enact statutory measures directed toward ensuring
the abrogation of those disabilities of coverture. Such
statutes are subject, of course, to a constitutional
analysis under other provisions, such as equal protection.
7 Medically necessary expenses have been characterized as
“necessaries” within the spirit of the doctrine. Eisele, supra at
686.
8 With its reference to “prior law . . . which we
have changed today to keep pace with the changes in
society,” the Court of Appeals implied that it was changing
the common law. However, in the context of the whole
opinion, it appears that the Court not only expanded the
necessaries doctrine, but also found the statute to be
unconstitutional in part.
9 Two years later, our Court of Appeals in Bronson Hosp,
supra, although acknowledging the Borgess holding, held that the
defendant wife did not have to pay medical expenses incurred by her
husband because the expenses were incurred before the effective
date of Borgess. The Bronson panel criticized the Borgess holding,
stating that “[a]lthough a change in the common law is needed, this
is neither the time nor the place. This is an issue for the
Legislature and not the judiciary.” Id. at 732. Although we agree
that the necessaries doctrine is an issue better addressed by the
Legislature, see n 14, we note that it is unquestioned that the
judiciary has the power to determine whether a statute violates the
constitution. Likewise, it is axiomatic that our courts have the
constitutional authority to change the common law in the proper
case. Placek v Sterling Heights, 405 Mich 638, 656-657; 275 NW2d
511 (1979).
10 Judge Markey added a short concurrence:
This issue was squarely addressed by the holding in
Borgess Medical Center v Smith, 149 Mich App 796, 801;
386 NW2d 684 (1986).
Accordingly, I concur in the result only. [214 Mich
App 520.]
11 Our state constitution provides equal protection
guarantees similar to those contained in the United States
Constitution. Doe v Dep’t of Social Services, 439 Mich 650, 672;
487 NW2d 166 (1992).
12 We find support for our determination on this point in
the House Legislative Analysis of 1981 PA 216, which makes clear
that the intent of the bill was to harmonize and update earlier
versions of the MWPA:
Ideally, individuals of either gender should have
equal legal rights and responsibilities, regardless of
marital status. However, since the legislature cannot
pass a blanket statute to abolish common law, some people
say that the most effective way to correct the present
inequalities would be to replace the Married Women’s
Property Acts with a more comprehensive statute which
would assure married women of the same legal status as
men and unmarried women. [House Legislative Analysis, HB
4098, May 12, 1981, p 1.]
13 Although the MWPA contains a provision protecting a
husband from liability for contracts separately entered into by his
wife, MCL 557.24(2); MSA 26.165(4)(2), we believe that language is
not sufficient to abrogate the common-law doctrine of necessaries.
Rather, we find that provision contemplates the exemption of
liability for the voluntary contracts of a spouse and, therefore,
does not pertain to the necessaries doctrine, which creates a
unilateral obligation of support directly between the husband and
the third party who has provided services.
14 In light of our determination that the common-law
necessaries doctrine is controlled by MCL 557.21(1); MSA
26.165(1)(1) and Const 1963, art 10, § 1, we cannot remedy the
doctrine’s equal protection violation by extending liability to
both wives and husbands. We therefore abolish the doctrine
altogether and await the judgment of the Legislature regarding
which is the better policy for the state to adopt. We recognize
that virtually all the necessaries doctrine cases will concern
hospitals seeking to collect debts resulting from medical services
rendered to spouses, often during a last illness. The public
policy issues surrounding these circumstances are complex, and we
think that such issues are best taken up by the Legislature in
family-expense statutes, creditors’ rights laws, or even
comprehensive health care legislation. See Connor v Southwest
Florida Regional Medical Center, 668 So 2d 175, 176 (Fla, 1995);
Condore, supra at 531- 532; Schilling, supra at 543-544.