Gloria Kato Karungi v. Ronald Lee Ejalu , 501 Mich. 1051 ( 2018 )

Order Michigan Supreme Court
Lansing, Michigan
April 6, 2018 Stephen J. Markman,
Chief Justice
156644 Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
GLORIA KATO KARUNGI, Kurtis T. Wilder
Plaintiff/Counterdefendant- Elizabeth T. Clement,
Appellee, Justices
v SC: 156644
COA: 337152
Oakland CC Family Division:
2016-841198-DS
RONALD LEE EJALU,
Defendant/Counterplaintiff-
Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 26, 2017
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MCCORMACK, J. (concurring).
I agree with the Court’s order denying leave to appeal, which properly leaves it to
the trial court to resolve several fact-intensive legal questions in the first instance.
Among those questions are, as the Court of Appeals noted, whether the contracts between
the parties and the in vitro fertilization clinic affect the proper disposition of this case.
While I express no opinion on the correct resolution of that issue, it is possible those
contracts alone could prove outcome-determinative.
I write separately to note that the trial court should not avoid the question argued
by the parties: whether frozen embryos are persons subject to a custody determination.
The answer to that question could prove dispositive regarding whether the contracts
resolve this dispute. See Harvey v Harvey, 470 Mich. 186, 194 (2004) (stating that
“parties cannot stipulate to circumvent the authority of the circuit court in determining
the custody of children”). And if the trial court concludes that embryos are not subject to
a custody determination, it is still bound to make a determination about the proper legal
disposition of those embryos, if not under contract law or child custody law. Under
2
Const 1963, art 6, § 1, it has an obligation to exercise the judicial power to decide the
dispute before it. See also MCL 600.605 (circuit courts “have original jurisdiction to
hear and determine all civil claims and remedies, except where exclusive jurisdiction is
given in the constitution or by statute to some other court or where the circuit courts are
denied jurisdiction by the constitution or statutes of this state”).
Should it become necessary to determine the disposition of the embryos outside
contract law or child custody law, the trial court may wish to avail itself of the
nonbinding authorities that have grappled with these difficult questions. See, e.g., Davis
v Davis, 842 S.W.2d 588, 604 (Tenn, 1992) (applying a balancing-of-interests test to
determine the disposition of frozen embryos); Flannery, “Rethinking” Embryo
Disposition Upon Divorce, 29 J Contemp Health L & Pol’y 233 (2013) (discussing three
different approaches to the disposition of frozen embryos upon divorce).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 6, 2018
p0403
Clerk