Fischer v. Seibel, WD

• Decision Date: 30 June 1987
• Docket Number: No. WD,WD
• Citation: 733 S.W.2d 469
• Parties: Anna Jane FISCHER, Plaintiff-Respondent, v. William A. SEIBEL, Personal Representative of Alvin Thomas Fischer, Deceased, Defendant-Appellant. 37036.
• Court: Missouri Court of Appeals

Page 469

733 S.W.2d 469

Anna Jane FISCHER, Plaintiff-Respondent, v. William A. SEIBEL, Personal Representative of Alvin Thomas Fischer, Deceased, Defendant-Appellant.

No. WD 37036.

Missouri Court of Appeals Western District.

June 30, 1987.

William A. Seibel, Jefferson City, for defendant-appellant.

James W. Gallaher, Jefferson City, for plaintiff-respondent.

Before DIXON, P.J., and MANFORD and NUGENT, JJ.

NUGENT, Judge.

William A. Seibel, the personal representative of the deceased defendant Alvin Thomas Fischer, appeals from a 1985 judgment dividing the marital property of Anna Jane and Alvin Thomas Fischer, the parties to a divorce suit filed in 1971.

All of the facts necessary to a decision in this case may be stated as follows: Anna Fischer filed a petition for divorce in 1971. In February, 1972, the court ordered Mr. Fischer to pay her $225 per month for temporary support, and he paid that amount until at least June 1, 1974. The parties agreed that their marriage was irretrievably broken.

In 1974 the court entered a decree dissolving the Fischer marriage but continued the case for later consideration of the division of property and maintenance. Neither party moved for a new trial or appealed. In August and September, 1974, Mrs. Fischer caused execution to issue to enforce the award of temporary alimony. The defendant filed a motion to quash execution, but the court never ruled on the motion. In December, 1980, the court entered an order dividing the property, giving to Mrs. Fischer $16,975 representing Mr. Fischer's half share of the marital property to offset unpaid maintenance, which then totaled $17,325. But in 1981 the court sustained defendant's motion for a new trial which questioned the division of marital property and the obligation of defendant to pay temporary support after May 31, 1974. In 1982, before a new trial could be held, the defendant died. In 1985, defendant's personal representative was substituted, a trial was held, and the court entered judgment dividing the marital property and holding that the allowance for temporary support continued in effect until defendant's death in 1982. ¹

In his first point on appeal, the defendant argues that Mr. Fischer's obligation to pay temporary alimony or maintenance ended on May 31, 1974, when the marriage was dissolved.

In his second point, the defendant claims that upon the dissolution of the marriage on May 31, 1974, the parties became tenants in common in property previously held by the entirety. Therefore, he argues, the plaintiff owed the defendant husband a reasonable sum for the use of his one-half interest in the marital residence for the eighty-four month period during which she occupied the house or rented it to a third party. He contends that the court should have considered his share of the fair rental value when it offset his total liability of $18,900 plus interest for unpaid temporary support with his $19,000 interest in the marital property.

Before addressing defendant's points on appeal, we must decide whether the defendant husband's death caused the action to abate, ousting the court of any jurisdiction to divide and distribute the parties' property. We must also decide whether the partial decree of May 31, 1974, dissolving the marriage was extinguished for want of finality.

I.

The question of the court's jurisdiction to divide the property after Mr. Fischer's death requires that we determine whether the principle of abatement applies in the instant circumstances under the Dissolution of Marriage Act (§§ 452.300--452.415), which became effective January 1, 1974. ²

Before the enactment of the new dissolution law, the rule in Missouri was that upon the death of a party to a dissolution action before final judgment the action abated and the court lost jurisdiction. Hogsett v. Hogsett, 409 S.W.2d 232 (Mo.App.1966). In that case, where the wife was killed pending trial, Judge Blair wrote for this court (at 238) that the "broad rule" is

that the death of one of the parties to a divorce suit results in the immediate abatement and final termination of that suit and ousts the court of all jurisdiction of the person of the parties and of all the subject matter of the suit and of all right to make any further order in the suit. To put it otherwise, ... the abatement and final termination of the divorce suit which results as a consequence of the death of one of the spouses entirely destroys the divorce suit and leaves no divorce suit in which the court can make any order at all.

See also, Heil v. Rogers, 329 S.W.2d 388, 390 (Mo.App.1959).

In this case, however, the court entered a partial decree on May 31, 1974, finding the Fischer marriage to be irretrievably broken and dissolving the marriage. The court continued the case for later consideration of the division of property and maintenance, and those questions were never finally adjudicated before Mr. Fischer died. Did the remainder of the action pertaining to distribution of property and maintenance abate upon Mr. Fischer's death? Did the 1974 decree dissolving the marriage also abate for lack of finality because the court had not exhausted its jurisdiction before defendant died? The answers depend upon an analysis, construction and application of § 452.305.1, § 452.330.1 and § 452.360.1.

Section 452.305.1 provides that the court shall enter a decree of dissolution of marriage (1) if it finds the factual basis for its jurisdiction, (2) if it finds that the marriage is irretrievably broken, and (3) if it has considered, approved and made provision for (among other things) the maintenance of either spouse and the disposition of property. Section 452.330.1 further commands that "the court shall set aside to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all the relevant factors...."

This analysis of finality must also take into account § 452.360.1, which provides as follows:

A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal. An appeal from a decree of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the decree which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.

Here, neither party appealed the order dissolving the marriage, nor could they. In her answer to defendant's cross-petition for dissolution of marriage, Mrs. Fischer admitted that the marriage was irretrievably broken. Therefore, within the meaning of § 512.010, which governs the right of appeal, neither qualifies as a party "aggrieved" by the partial decree dissolving the admittedly irretrievably broken marriage. See also Crigler v. Frame, 632 S.W.2d 94 (Mo.App.1982).

In State ex rel. Horridge v. Pratt, 563 S.W.2d 168, 170 (Mo.App.1978), we recognized that in enacting § 452.360.1, the legislature intended that, if not appealed, the part of the decree dissolving the marriage would become final by operation of law. In an attempt to reconcile the language of § 452.360.1 with cases holding that neither party may appeal a decree when no division or an imperfect division of marital property has been made, ³ Judge Dixon wrote that such holdings do not and could not affect finality of the unappealed decree of dissolution.

Fields v. Fields, 584 S.W.2d 163 (Mo.App.1979), provides a good illustration of the concept of separable finality of the issues in a dissolution proceeding. There, the appellate court held that it had no jurisdiction to decide questions regarding the property division in the absence of a final order distributing all of the marital property. However, the court affirmed the judgment of the circuit court insofar as it concerned the dissolution of the marriage. Id. at 167. In re Marriage of Jamison, 592 S.W.2d 181, 183 (Mo.App.1979). See also In re Marriage of Dusing, 654 S.W.2d 938, 944 (Mo.App.1983).

While abatement remains the rule before final judgment, the concept of separable finality of the order dissolving the marriage under the new dissolution law makes abatement inapplicable here. In view of the admitted irretrievable break up of the marriage, the Fischer marriage was dissolved on May 31, 1974, as contemplated by the terms of § 452.360.1. The clear purpose of that section is to free the parties to remarry where they do not question the dissolution of the marriage. ⁴

Having determined that the unappealed partial decree was final and, therefore, not subject to abatement due to Mr. Fischer's death, we next ask whether his death caused abatement of the remainder of the case, that is, the then undecided issues of maintenance and property division. The trial court's final decree regarding those matters was not rendered until 1985, after Mr. Fischer's death in 1982.

On the basis of Cregan v. Clark, 658 S.W.2d 924 (Mo.App.1983) (en banc), and in keeping with the philosophy of the Dissolution of Marriage Act, we decline to apply the principle of abatement to the present situation. We held in Cregan (at 927) that "when property rights of the parties are involved, the parties are entitled to have that aspect of the case decided though one of the parties has died." See also Anderson v. Dyer, 456 S.W.2d 808, 814 (Mo.App.1970).

In Cregan, the husband died pending an appeal challenging the legal separation portion of the decree as well as the property and support provisions. Compelled by the need to determine the property rights of the parties, the court held that the appeal had not abated and proceeded to affirm the decree of legal separation and to reverse and remand to the trial court the issues of distribution of the husband's retirement benefits and the disposition of the marital home. We also ordered that the maintenance award be increased by $500 per month from the date of the...