Order Michigan Supreme Court
Lansing, Michigan
January 12, 2007 Clifford W. Taylor,
Chief Justice
131742 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
DENISE BATKO, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 131742
COA: 266766
Oakland CC: 2003-684092-DO
KEITH BATKO,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the June 20, 2006 order
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.
MARKMAN, J., dissents and states as follows:
I respectfully dissent and would remand to the trial court for it to interpret and
apply the term “cohabitation” in the parties’ consent judgment of divorce in accordance
with traditional rules of interpretation. The term “cohabitation” is not made ambiguous
simply because its meaning is in dispute, or because the term is susceptible to multiple
definitions. Koontz v Ameritech Services, Inc, 466 Mich 304, 317 (2002). Rather, an
ambiguity exists in a contract “if two provisions of the same contract irreconcilably
conflict with each other,” Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467
(2003), or “when [a term] is equally susceptible to more than a single meaning.” Lansing
Mayor v Pub Service Comm, 470 Mich 154, 166 (2004) (emphasis in original). Only
after a contract is found to be ambiguous may a trial court consider extrinsic evidence.
Klapp, supra at 470-471. “[C]onsidering extrinsic evidence in the absence of ambiguous
language is ‘clearly inconsistent with the well-established principles of legal
interpretation . . . .’” Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 49 (2005),
quoting Little v Kin, 468 Mich 699, 700 n 2 (2003). Rather, absent ambiguous language,
it is the obligation of the trial court to define contract terms in accordance with their
“plain or common meanings,” People v Yamat, 475 Mich 49, 55 (2006), and to “give
effect to every word, phrase, and clause in a contract . . . .” Klapp, supra at 468.
2
On remand, I would counsel the trial court to bear in mind the following statement
of this Court: “In lieu of the traditional approach to discerning ‘ambiguity’ -- one in
which only a few provisions are truly ambiguous and in which a diligent application of
the rules of interpretation will normally yield a ‘better,’ albeit perhaps imperfect,
interpretation of the law -- the dissent would create a judicial regime in which courts
would be quick to declare ambiguity and quick therefore to resolve cases and
controversies on the basis of something other than the words of the law.” Lansing
Mayor, supra at 166. “A provision of law that is unambiguous may well be one that
merely has a better meaning, as opposed to a clear meaning.” Id. at 166 n 7.
I, Corbin R. Davis, 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.
January 12, 2007 _________________________________________
s0109 Clerk