Cook v. Lobianco, CA

• Court: Arkansas Court of Appeals
• Writing for the Court: CORBIN
• Citation: Cook v. Lobianco, 648 S.W.2d 808, 8 Ark.App. 60 (Ark. App. 1983)
• Decision Date: 30 March 1983
• Docket Number: No. CA,CA
• Parties: Ted COOK, Administrator of the Estate of Imogene P. Murphy, Deceased, Appellant, v. Nina J. LOBIANCO and Marjorie L. Link, Co-Executrixes of the Estate of M.L. (Pat) Murphy, Deceased, Appellees. 82-336.

Page 808

648 S.W.2d 808

8 Ark.App. 60

Ted COOK, Administrator of the Estate of Imogene P. Murphy Deceased, Appellant, v. Nina J. LOBIANCO and Marjorie L. Link, Co-Executrixes of the Estate of M.L. (Pat) Murphy, Deceased, Appellees.

No. CA 82-336.

Court of Appeals of Arkansas.

March 30, 1983.

Odom, Elliott, Lee & Martin, by Don R. Elliott, Fayetteville, and Jeff Duty, Rogers, for appellant.

Davis & Bracey, P.A., by Charles E. Davis, Springdale, for appellees.

CORBIN, Judge.

This case had a strange turn of events. It was commenced by the filing of a complaint for divorce by M.L. (Pat) Murphy against Imogene P. Murphy. On January 6, 1982, the court entered on its chancery docket the following notation:

1/6/82 case called for trial--no contest on divorce--evidence by plaintiff and witness--divorce granted--parties to submit stipulation on property--bring within ten days.

On January 14, 1982, Imogene P. Murphy died. As of that date, a property stipulation agreement had not been submitted to the court nor filed. On February 16, 1982, Ted Cook, as administrator of the estate of Imogene P. Murphy, deceased, filed a petition with the chancery court alleging that her estate was entitled to one-half of all property, real and personal, acquired during the parties' marriage.

On March 11, 1982, M.L. (Pat) Murphy died. The action was revived in the name of Nina J. Lobianco and Marjorie L. Link, co-executrixes of the estate of M.L. (Pat) Murphy, deceased.

The court entered an order of dismissal in this action and found that at the time of Imogene P. Murphy's death, the parties had not submitted to the court a form of decree, and, therefore, the divorce action abated. The motion for division of property filed by Ted Cook, as administrator of the estate of Imogene P. Murphy, deceased, was denied. We affirm.

Appellant contends that upon the court making the docket notation of "divorce granted" that the divorce was final, and thereby caused the property held by the parties as an estate by the entirety or survivorship to be automatically dissolved and the parties treated as tenants in common pursuant to Ark.Stat.Ann. § 34-1215 (Supp.1981).

ARCP, Rule 58 provides as follows:

Subject to the provisions of Rule 54(b), upon a general or special verdict, or upon a decision by the court granting or denying the relief sought, the court may direct the prevailing party to promptly prepare and submit, for approval by the court and opposing counsel, a form of judgment or decree which shall then be entered as the judgment or decree of the court. The court may enter its own form of judgment or decree or may enter the form prepared by the prevailing party without the consent of opposing counsel.

Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Rule 79(a). Entry of judgment or decree shall not be delayed for the taxing of costs.

ARCP, Rule 54(b) provides as follows:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

ARCP, Rule 79(a) provides as follows:

Dockets. The clerk shall keep a book known as a "civil docket" and a book known as a "chancery docket" and shall enter therein each action to which these rules are applicable. Cases shall be assigned docket numbers in the order of filing and beginning with the first case filed each year in each court, the last two digits of the current year shall be entered, followed by a hyphen and the number assigned to the case, beginning with the number "1." For further identification, the court may direct that the letters "CIV" precede the docket number for cases filed in circuit court and that the letter "E" precede the...