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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

In re ESTATE OF JAMES E. RADER, JR.

DANYEL RADER,

Petitioner-Appellee,

UNPUBLISHED

February 13, 2018

v No. 335980

Macomb Probate Court

MARK RADER, LC No. 2016-220913-DE

Respondent-Appellant.

Before: TALBOT, C.J., and METER and TUKEL, JJ.

PER CURIAM.

In this estate action, Mark Rader appeals as of right an order granting declaratory relief in 

favor of Danyel Rader. We affirm.

The dispute in this estate action concerns the enforceability of a property settlement 

agreement reached in divorce proceedings initiated by decedent, James E. Rader, Jr., against 

Danyel.

1

 As part of the divorce proceedings, Danyel and decedent participated in mediation, 

which culminated in an agreement concerning the division of their shared assets. The settlement 

agreement was reduced to writing; signed by Danyel, decedent, and their respective attorneys; 

and placed on the record in the circuit court. After confirming the parties understood that the 

settlement agreement would be final and binding, the court found that the jurisdictional 

requirements and statutory grounds for divorce had been established. The court directed the 

parties to prepare a judgment of divorce within 21 days and stated that, upon entry of the same, 

the divorce would be final. The terms of the settlement agreement were incorporated into a 

proposed consent judgment of divorce. However, before Danyel signed the consent judgment of 

 1 Owing to his terminal illness, decedent was unable to personally participate in the divorce 

proceedings that are pertinent to this appeal. As such, decedent’s son, Mark, participated on 

behalf of decedent and executed the handwritten settlement agreement, acting under the authority 

of a durable power of attorney.
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divorce, and before it was entered by the court, decedent passed away, and the divorce complaint 

was dismissed by the circuit court for lack of jurisdiction following decedent’s death. 

Thereafter, Danyel filed a petition for declaratory relief in the probate court, requesting 

that the court declare the settlement agreement null and void pursuant to the consent order that 

dismissed the divorce complaint. The probate court issued an opinion and order that granted the 

petition for declaratory relief in Danyel’s favor. On appeal, Mark, who is decedent’s son, 

challenges the probate court’s order granting declaratory relief to Danyel, arguing that the 

settlement agreement that was reached during the divorce proceedings is valid and binding 

against Danyel.

2

 We disagree.

Settlement agreements, including agreements concerning the division of property in a 

divorce, are construed as contracts.3 Accordingly, such agreements are generally subject to 

“[t]he same legal principles that govern the construction and interpretation of contracts . . . .”4 

“The existence and interpretation of a contract involves a question of law that this Court reviews 

de novo.”

5

 Likewise, “[q]uestions of law relative to declaratory judgment actions are reviewed 

de novo, but the trial court’s decision to grant or deny declaratory relief is reviewed for an abuse 

of discretion.”6

In urging this Court to reverse the probate court’s order, Mark argues that the 

enforceability of the settlement agreement hinges on the parties’ intent and, in this case, there is 

ample evidence that the parties intended that the agreement be final and binding. Mark contends

that Kresnak v Kresnak,

7 in which a proposed separate maintenance agreement was upheld after 

the death of one of the parties, is controlling in this case. In contrast, Danyel argues that 

 2 In her appellate brief, Danyel contends that Mark does not have standing to appeal the probate 

court’s decision, which could only be challenged by the successor personal representative of the 

estate. In order to have standing on appeal, the litigant must “have suffered a concrete and 

particularized injury” arising from “either the actions of the trial court or the appellate court 

judgment . . . .” Federated Ins Co v Oakland Co Road Comm, 475 Mich 286, 291-292; 715 

NW2d 846 (2006). The probate court’s order deprived the decedent’s estate of property it would 

have held had the court found the settlement agreement in decedent’s earlier divorce action 

enforceable. As an heir to the estate that would benefit from enforcement of the settlement 

agreement, it appears that Mark is an aggrieved party who has suffered a particularized injury 

and, thus, has standing to appeal the probate court’s order.

3 Myland v Myland, 290 Mich App 691, 700; 804 NW2d 124 (2010).

4 Id.

5 Id.

6 Pioneer State Mut Ins Co v Dells, 301 Mich App 368, 376; 836 NW2d 257 (2013).

7 Kresnak v Kresnak, 190 Mich App 643; 476 NW2d 650 (1991).
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Tiedman v Tiedman,

8 involving a settlement agreement that was invalidated following the death 

of one of the parties, controls. 

In Tiedman, Mr. and Mrs. Tiedman placed their settlement agreement on the record in 

open court, and the parties gave testimony establishing the grounds for the divorce.9 The trial 

court stated that it would “approve the property settlement as stated and upon presentation . . . 

sign the judgment of divorce.”

10 However, Mr. Tiedman died before the judgment of divorce 

had been signed and entered, and Mrs. Tiedman moved to dismiss the complaint for divorce “on 

the ground that she was now a widow.”

11 The trial court rejected the motion and entered a 

judgment of divorce nunc pro tunc.12 This Court affirmed the trial court’s ruling, but the 

Michigan Supreme Court reversed.13 The Supreme Court held:

[W]here it is contemplated that a judge’s oral statement, that a divorce is or will 

be granted, will be followed by the signing of a judgment, the divorce and 

property settlement do not become effective until the judgment is signed and 

cannot be made effective nunc pro tunc after one of the parties dies.[14]

The Supreme Court observed that the trial court’s oral pronouncement did not legally divorce the 

parties and it remained possible that, before a judgment of divorce was entered, the parties might 

reconcile, agree to abandon the divorce proceedings for other reasons, or disagree concerning the 

language employed in stating the terms of their settlement agreement.15 Moreover, because Mr. 

Tiedman’s death deprived the trial court of its jurisdiction to render a judgment of divorce, it 

could not order a related property settlement or provide for the payment of alimony.16

Later, in Kresnak, this Court reached a different result. In their divorce action, the parties 

reached an agreement whereby the complaint would be amended to seek separate maintenance, 

rather than divorce.17 The agreement also set forth the manner in which the parties’ assets and

liabilities would be divided.18 Once again, the settlement agreement was placed on the record 

 8 Tiedman v Tiedman, 400 Mich 571; 255 NW2d 632 (1977).

9 Id. at 573.

10 Id. (quotation marks omitted).

11 Id.

12 Id.

13 Id. at 574, 577.

14 Id. at 573.

15 Id. at 575.

16 Id. at 576-577.

17 Kresnak, 190 Mich App at 644-645.

18 Id. at 645.
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and both parties acknowledged their satisfaction with its terms.19 The trial court approved the 

settlement agreement and orally “grant[ed] a judgment of separate maintenance, conforming with 

the agreement . . . .”

20 When Mr. Kresnak died before a written judgment could be entered, the 

personal representative of his estate filed a motion seeking enforcement of the settlement 

agreement, which was granted.

21

Mrs. Kresnak appealed the trial court’s ruling, arguing that Mr. Kresnak’s death deprived 

the trial court of jurisdiction to enter a judgment of separate maintenance.

22 Like Danyel does in 

the instant appeal, Mrs. Kresnak argued that Tiedman controlled the case.23 This Court disagreed 

and found Tiedman distinguishable on the basis that it involved a judgment of divorce, rather 

than a judgment of separate maintenance.24 “[M]ost jurisdictions when dealing with this issue 

recognize a distinction between a judgment of divorce and a judgment of separate 

maintenance.”

25 “Although a judgment of separate maintenance bears many similarities to a 

judgment of divorce, such a judgment does not terminate the marital relationship.”

26

Given this distinction, we must conclude that Tiedman is controlling in this dispute 

stemming from the enforcement of a settlement agreement made in contemplation of divorce. 

We acknowledge that, unlike in Tiedman, the settlement agreement in this case was also reduced 

to writing and signed by the parties before decedent’s passing. Thus, it could be argued that the 

written settlement agreement is a separate contract in its own right. However, the trial court 

found, and we agree, that because the settlement agreement was to be incorporated into a 

judgment of divorce, the agreement has no effect, since decedent died before the judgment of 

divorce could be entered. The entry of the judgment of divorce essentially served as a condition 

precedent27 to the enforcement of the settlement agreement. Because entry of a judgment of 

divorce became impossible following decedent’s death,28 the settlement agreement could not be 

incorporated therein or given effect as intended.

 19 Id.

20 Id.

21 Id. at 645-646.

22 Id. at 646.

23 Id.

24 Id. at 648-649.

25 Id. at 649.

26 Id. at 645 n 1.

27 A condition precedent “is a fact or event that the parties intend must take place before there is 

a right to performance . . . . If the condition is not satisfied, there is no cause of action for a 

failure to perform the contract.” Harbor Park Market, Inc, v Gronda, 277 Mich App 126, 131; 

743 NW2d 585 (2008) (quotation marks, citations, and footnote omitted).

28 Tiedman, 400 Mich at 576.
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Affirmed.

/s/ Michael J. Talbot

/s/ Patrick M. Meter

/s/ Jonathan Tukel