Dougherty v. Dougherty

• Decision Date: 28 March 1946
• Docket Number: 29753.
• Citation: 24 Wn.2d 811,167 P.2d 467
• Parties: DOUGHERTY v. DOUGHERTY.
• Court: Washington Supreme Court

167 P.2d 467

24 Wn.2d 811

DOUGHERTY v. DOUGHERTY.

No. 29753.

Supreme Court of Washington

March 28, 1946

Department 2

Action for divorce by Clara Dougherty against Philip D. Dougherty who filed a cross-complaint for divorce. There was an interlocutory order for divorce in favor of plaintiff from which the defendant appeals and, pending the appeal, the plaintiff died and an order was thereafter entered substituting R. W. Miller as executor of the last will and testament of Clara Dougherty, deceased, as party respondent.

Appeal dismissed.

Appeal from Superior Court, Kitsap County; H. G. Sutton, judge.

H Sylvester Garvin and Anthony Savage, both of Seattle, and Frederick B. Cohen, of Bremerton, for appellant.

R. W Miller, of Bremerton, and John J. Sullivan, of Seattle, for respondent.

BEALS Justice.

Philip D. and Clara Dougherty intermarried March 1, 1941. November 20, 1944, Mrs. Dougherty filed, in the office of the clerk of the superior court for Kitsap county, her complaint, asking for a decree of divorce, and praying that certain property which she alleged was her separate property, be awarded to her.

The defendant answered with denials, and, by way of a cross-complaint, asked that a decree of divorce be awarded to him, and alleged that the community owned certain real and personal property. Plaintiff replied to defendant's cross-complaint, denying the material allegations therein set forth.

The action came on regularly to be heard, during the month of May, 1945, and resulted in the entry of findings of fact and conclusions of law in favor of the plaintiff. May 14, 1945, an interlocutory order was entered, vesting title to certain real and personal property in plaintiff, and providing that, on the expiration of six month from the date of the interlocutory order, a decree of divorce might be entered, on application of either party to the action.

From the interlocutory order, the defendant seasonably gave notice of appeal and filed a cost bond on appeal in support thereof.

December 14, 1945, appellant filed in this court his motion for an order substituting R. W. Miller, as executor of the last will of Clara Dougherty, as party respondent herein, together with his affidavit alleging that, November 30, 1945, the respondent, Clara Dougherty, died; and that, December 7, 1945, letters testamentary upon her will were issued by the superior court for Kitsap county to R. W. Miller, one of her counsel on this appeal. By the same motion, appellant moved to dismiss the appeal for the reason that, no final decree of divorce ever having been entered, the action had abated upon the death of Mrs. Dougherty.

The appeal was set down for hearing Before this court for February 14, 1946, and appellant's motion for substitution of the executor as a party in place of respondent and to dismiss the appeal, having been passed to the merits, was argued with the appeal. Respondent's counsel joined with appellant in asking that the executor of the will be substituted as party respondent.

March 6, 1946, an order was entered by this court substituting R. W. Miller, as executor of the last will and testament of Clara Dougherty, deceased, late respondent herein, as party respondent to this action.

From the facts stated above, disclosed by the record herein, it appears that the above-entitled action was brought for the purpose of procuring a decree of divorce; that the action was at issue and the trial completed; and that an interlocutory order was entered determining the rights of the parties to certain real and personal property, and directing that, upon motion of either party, a decree of divorce should be entered at the expiration of six months from and after the date of the interlocutory order.

Defendant in the action, appellant herein, having appealed to this court from the interlocutory order, the statutory time for the entry of a final decree of divorce was necessarily extended until the appeal to this court was heard and determined. While the appeal was pending, the plaintiff in the action, respondent here, died.

Appellant, after moving for the substitution of the executor in place of the deceased respondent, has moved to dismiss the appeal on the ground that, upon the record Before this court, no judgment or order, save an order dismissing the appeal, can be entered.

Respondent executor, on the other hand, argues that we should entertain the appeal and review on the merits the provisions of the interlocutory order vesting in respondent testatrix certain real and personal property as her sole and separate property and estate.

In her complaint, Mrs. Dougherty alleged that the property referred to therein was her sole and separate property and asked that the court decree that it was of that class. In his answer, appellant alleged that a considerable portion of the property was the community property of the parties. Upon this issue, the court found in favor of Mrs. Dougherty, and concluded that she was entitled to a decree vesting in her, as her sole and separate property, title to the real and personal property described in the findings. The interlocutory order followed the findings of fact and conclusions of law.

In the recent case of McPherson v. McPherson, 200 Wash. 365, 93 P.2d 428, 429, this court held that an interlocutory order, entered in an action for divorce, becomes a nullity in its entirety upon the death of either husband or wife prior to the entry of the final decree of divorce, except where the rights of third parties are concerned.

In the case cited, Mrs. McPherson instituted an action for divorce against her husband on the ground of nonsupport. The defendant counterclaimed, asking that the divorce be awarded to him. The trial resulted in the entry of an interlocutory order determining the property rights of the parties, awarding the custody of a minor child to the plaintiff, denying the defendant's application for divorce, and, of course, directing that a final decree of divorce be entered after the expiration of six months from the date of the interlocutory order.

From this order, the defendant appealed to this court, and while the appeal was still pending Mrs. McPherson died. The appellant then moved, in this court, that the appeal be dismissed. We stated the question Before the court as follows:

'The question to be determined is: Does an interlocutory order of divorce, which makes an award of property, fail, abate and become a nullity for all purposes, upon the death of a party respondent, occurring subsequent to its entry and prior to the entry of a final decree, and while an appeal from such interlocutory decree is pending in this court?'

The executor of Mrs. McPherson's will (having been substituted for her as party respondent) contended, as does respondent here, that the action had not abated upon Mrs. McPherson's death in so far as the property rights of the parties, as they were settled by the interlocutory order, were concerned.

This court, after citing and quoting at length from several of our opinions, said:

'* * * we are of the opinion that the subject matter of the controversy abated, and that the interlocutory decree in its entirety automatically became a nullity, as of the date of respondent's death. We think it needless to further argue the matter as to the finality of the interlocutory decree, in so far as it affected a division of...