EState R. King v. King

• Decision Date: 03 August 2011
• Docket Number: No. 4D10–1137.,4D10–1137.
• Citation: 67 So.3d 387
• Parties: Estate of William R. KING,1 Appellant,v.Loyda KING, Appellee.
• Court: Florida District Court of Appeals

67 So.3d 387

Estate of William R. KING,1 Appellant,

v.Loyda KING, Appellee.

No. 4D10–1137.

District Court of Appeal of Florida, Fourth District.

Aug. 3, 2011.

Steven N. Abramowitz of Steven N. Abramowitz and Associates, Miami, for appellant.No appearance for appellee.STEVENSON, J.

In this appeal, the Estate of William R. King challenges an order of the trial court refusing to allow the Estate to be substituted in place of the now-deceased former husband and requiring it to seek enforcement of the final judgment of dissolution in the probate court or, failing that, to file a new civil suit. We reverse.

William and Loyda King divorced in 2008. The terms of their marital settlement agreement, incorporated into the final judgment of dissolution, permitted the wife to remain in the former marital residence contingent upon her assuming specified financial obligations associated with the home. Approximately a year and a half after the divorce, the Estate of William King filed two motions in the divorce case: one seeking to have the court compel the wife to vacate the former marital residence, alleging she breached her financial obligations associated with the former marital residence and the home was now in foreclosure, and a second, asking the court to permit the Estate to be substituted as a party in place of the now-deceased husband. Rather than grant the Estate's motion to be substituted as a party, the trial court dismissed the case without prejudice, directing the Estate to proceed in probate court or, if it could not proceed in probate court, to file a new civil action.

The relevant rules of court authorize the trial court to permit the substitution of a party in the event of death provided the claim is not extinguished by the death. See Fla. R. Civ. P. 1.260; Fla. Fam. L.R.P. 12.260. Florida law provides that the death of a spouse prior to the entry of final judgment of dissolution terminates the suit and requires dismissal of the divorce suit. See Marlowe v. Brown, 944 So.2d 1036, 1039–40 (Fla. 4th DCA 2006). The death of a spouse does not, however, terminate the proceeding or the court's jurisdiction if the final judgment was entered prior to the death and the court retained jurisdiction to resolve remaining property issues. See Fernandez v. Fernandez, 648 So.2d 712, 714 (Fla.1995); Becker v. King, 307 So.2d 855 (Fla. 4th DCA 1975). The instant case is analogous to this latter circumstance, i.e., the husband died only after entry of the final judgment of dissolution and the trial court expressly retained jurisdiction to enforce the final judgment and the incorporated settlement agreement.

Although not a divorce case, M.R. v. A.B.C., 739 So.2d 118 (Fla. 3d DCA 1999), is instructive. M.R. filed a paternity suit...