Coulter v. Coulter, 88-093

• Decision Date: 04 November 1988
• Docket Number: No. 88-093,88-093
• Citation: 131 N.H. 98,550 A.2d 112
• Parties: Debra L. COULTER v. Steven D. COULTER.
• Court: New Hampshire Supreme Court

Page 112

550 A.2d 112

131 N.H. 98

Debra L. COULTER v. Steven D. COULTER.

No. 88-093.

Supreme Court of New Hampshire.

Nov. 4, 1988.

Upton, Sanders & Smith, Concord (Katharine A. Daly, on the brief and orally), for plaintiff.

Michael G. Gfroerer P.A., and Laura L. Hall, on the brief, Concord (Michael G. Gfroerer, orally), for defendant.

JOHNSON, Justice.

The defendant, Steven D. Coulter, appeals from a judgment denying his motion to dismiss a libel for the divorce of the defendant and the plaintiff, Debra L. Coulter, and from a decree of divorce nunc pro tunc by the Superior Court (Hollman, J.). The motion for a decree and judgment of divorce was brought by William D. Kelley, Sr., the father of the plaintiff, following her death. The issue before this court is whether it was proper for the superior court to grant a divorce nunc pro tunc when one of the parties to the marriage had died before there had been a hearing on the merits on the libel for divorce. For the reasons stated below, we hold that a hearing is required, and we therefore reverse.

Debra and Steven Coulter were married on April 5, 1980. They had two children. On June 15, 1987, Debra Coulter filed a libel for divorce. The libel and an order of notice were properly served on Steven Coulter on June 24, 1987. The notice informed Mr. Coulter that he was required to file an appearance by August 4, 1987, and a written answer by September 3, 1987. Mr. Coulter failed to file either an appearance or an answer, and thereby defaulted.

On or about October 23, 1987, Debra and Steven Coulter entered into a permanent stipulation in which they agreed that the court should grant them a divorce on the ground of irreconcilable differences. Mr. Coulter also stipulated that he did not desire to be heard at a final hearing on the divorce. The final hearing was scheduled for November 3, 1987. On November 2, 1987, Debra Coulter had an accident which resulted in her hospitalization and subsequent death on November 9, 1987. As a result of these events, the final hearing on the libel for divorce never took place.

On November 19, 1987, Steven Coulter moved to dismiss the divorce libel. Debra Coulter's counsel objected to that motion. On November 24, 1987, William D. Kelley, Sr., the father of Debra Coulter, represented by the same counsel, moved for a decree and judgment of divorce effective as of October 23, 1987. After holding a hearing on the pending motions, the superior court, by an order dated February 8, 1988, denied the motion to dismiss and granted a decree of divorce nunc pro tunc to be entered as of November 3, 1987.

The only asset of potential consequence in the plaintiff's estate is a wrongful death action against the owner of the premises where she suffered her fatal injuries. Because the plaintiff died intestate, the question whether it was appropriate for the trial court to grant a divorce nunc pro tunc may have great practical consequences. If the decree of divorce nunc pro tunc was inappropriate, Steven Coulter, as surviving spouse, would be entitled to receive the first $50,000 of any recovery from the wrongful death action and one-half of anything above $50,000. RSA 556:14; RSA 561:1, I(c). Their two children would be entitled to receive the balance. RSA 556:14; RSA 561:1, II(a). If the court properly entered a divorce nunc pro tunc, the children would receive any proceeds in their entirety.

The general rule is that a divorce action abates upon the death of either party. Hazen v. Hazen, 122 N.H. 836, 838, 451 A.2d 398, 399 (1982) (citing Leclerc v. Leclerc, 85 N.H. 121, 122, 155 A. 249, 250 (1931)). Since the principal object of a suit for divorce is the dissolution of the marriage, there is no reason to render a divorce decree once the "marital relation [,is] already ended by death." Kimball v. Kimball, 44 N.H. 122, 124 (1862). This rule, however, is subject to exceptions; there have been decisions where a divorce nunc pro tunc was entered after the death of a party to the divorce. An examination of prior decisions allowing for the entering of such a decree, as well as those denying a divorce nunc pro tunc, suggests the circumstances in which such a decree may be appropriate.

In Kimball, supra at 124, the court refused to allow the father of a libelant, who had died after serving the libel for divorce upon his wife, to prosecute the libel to a final decree. The court, however, noted:

"There may, perhaps, be cases where the court might order a decree to take effect from a former term, when the parties were living, where the case was ready for decision at such former term, and the entry of the decree was delayed for the convenience of the court; but that is not this case, the libelant's death having occurred before the entry of the libel in court, and therefore before any of the papers had come into possession of the court."

In Tuttle v. Tuttle, 89 N.H. 219, 196 A. 624 (1938), the libelant had remarried after a hearing had been held on an uncontested divorce and a decree rendered, but before the judgment was entered. After the libelant's death, the woman he had married petitioned the court to decree the libelant's divorce effective as of the date of the original hearing. The court allowed for the entry of a divorce nunc pro tunc stating that "[e]ntries nunc pro tunc are made in furtherance of justice...." Tuttle, supra at 221, 196 A. at 625. The court held that the libelant's death had not "so far abated the proceedings that judgment cannot now be entered as of the day when the facts were found and the final conclusion reached." Id.

The court in Tuttle, in reaching this conclusion, reviewed the circumstances in which the granting of a divorce nunc pro tunc was appropriate. The court noted with approval the holding of Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804 (1901), that "where property rights are involved a divorce decree does not abate on the death of one of the parties pending an appeal." Tuttle, supra 89 N.H. at 221, 196 A. at 625; accord, Hazen, supra 122 N.H. at 838, 451 A.2d at 399. It also approved the exception noted in Kimball where the entry of a judgment is delayed for the convenience of the court, and added that delay of entry of a judgment by neglect of a clerk also provided sufficient grounds for a decree nunc pro tunc. Tuttle, supra 89 N.H. at 220, 196 A. at 625; accord, Walker v. Walker, 108 N.H. 341, 343, 235 A.2d 520, 522 (1967). In support of this position, the court distinguished between the rendition of a judgment, which it described as a "judicial act," and the entry of a judgment, which it described as a "ministerial act." Tuttle, supra 89 N.H. at 220, 196 A. at 625 (citing 1 Black on Judgments § 106 (2d. ed. 1902)).

Allowing the entry of a decree nunc pro tunc in the case now before this court would amount to a significant expansion of the doctrine regarding such entries as previously articulated. In the cases in which a judgment nunc pro tunc was entered, see, e.g., Hazen, 122 N.H. 836, 451 A.2d 398; Tuttle supra; Bell supra, a hearing had been held and a judgment rendered. The language found in decisions discussing the entry of a decree nunc pro tunc such as "the day when the facts were found and the final conclusion reached," Tuttle, 89 N.H. at 221, 196 A. at 625, and "after trial and submission of the case," Walker, supra 108 N.H. at 343, 235 A.2d at 522, have emphasized the necessity of a prior hearing to support such a decree. In the case before us, there had been no hearing on the libel for divorce.

The superior court recognized that the present case deviated in this important respect from cases which allowed the entering of a decree nunc pro tunc. The court noted that "[i]n the present case, it was the 'judicial act' of rendering a judgment which had yet to be completed at the time of plaintiff's untimely death rather than the ministerial act of merely entering the judgment." (Emphasis in original.) The court nevertheless found that the case fit into the "narrow class" of cases where entry nunc pro tunc was appropriate, as defined by the court in Walker supra; "namely, where clerical errors have prevented entry of judgment at the proper time, or where a party has died before judgment, but after trial and submission of the case." Walker, 108 N.H. at 343, 235 A.2d at 522. The court held that "[t]he latter situation is precisely the one which is now before the court." In supporting its conclusion that the present situation, where a party had died before a hearing was held on the libel for divorce, was equivalent to the situation "where a party has died before judgment, but after trial and submission of the case," the court had to determine that "the uncontested divorce hearing was [not] so important that its absence precludes the entry of a divorce...