In re Johnson's Estate

• Decision Date: 21 August 1934
• Docket Number: 5428
• Citation: 84 Utah 168,35 P.2d 305
• Parties: IN RE JOHNSON'S ESTATE. JOHNSON v. JOHNSON
• Court: Utah Supreme Court

35 P.2d 305

84 Utah 168

IN RE JOHNSON'S ESTATE. JOHNSON v. JOHNSON

No. 5428

Supreme Court of Utah

August 21, 1934

Appeal from District Court, Third District, Salt Lake County; R. I McDonough, Judge.

In the matter of the estate of Harry Theodore Johnson, wherein Ethel Atkinson Johnson brought an action against Edwin W. Johnson as administrator of the estate of Harry Theodore Johnson deceased. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

A. C. Cole, of Bingham Canyon, and L. B. Wight, of Salt Lake City, for appellant.

Preston Thatcher, of Bountiful, and Geo. A. Faust, of Salt Lake City, for respondent.

EPHRAIM HANSON, Justice. STRAUP, C. J., and ELIAS HANSEN, FOLLAND, and MOFFAT, JJ., concur.

OPINION

EPHRAIM HANSON, Justice.

This case was submitted to the trial court upon a stipulation of facts. The controlling facts as thus exhibited are: That the plaintiff, Ethel Atkinson Johnson, and Harry Theodore Johnson entered into the marriage relation November 23, 1925. Mrs. Johnson instituted an action for divorce against her husband, and an interlocutory decree of divorce was entered in her favor on February 25, 1932. This decree, among other things, recites that the defendant in the divorce action entered his appearance, waived time within which to plead to the complaint, and consented that, "If judgment be awarded, judgment may be entered against him for the sum of $ 10.00 a month as alimony for the support and maintenance of the plaintiff," and for attorney's fees and costs. By the decree it is "ordered, adjudged and decreed that the plaintiff, Ethel Atkinson Johnson, be and hereby is granted an interlocutory divorce from the defendant, Harry T. Johnson, dissolving and cancelling the marriage contract heretofore existing between them, and that said divorce shall become absolute and final after the expiration of six months from the date this decree is signed, unless the same be set aside, modified or appealed from." It further provides that "plaintiff have judgment against the defendant for the payment of $ 10.00 per month as alimony for her support and maintenance," and for attorney's fees and costs.

On March 20, 1932, just a month and fifteen days after the entry of said divorce decree, Mr. Johnson died. On April 18, 1932, twenty-nine days later, decedent's brother, Edwin W. Johnson, who is defendant in the action on appeal, was appointed administrator of the estate of Harry T. Johnson, deceased, and duly qualified as such administrator. No appeal was taken in the divorce action, and no motion or order made therein until May 27, 1932, when an order was made on the motion of the plaintiff dismissing said divorce action and setting aside and annulling the interlocutory decree of divorce. This order recites that the plaintiff had shown to the court that the defendant, Harry T. Johnson, died on March 20, 1932, and the plaintiff moved the court for a dismissal. This order of dismissal was filed June 2, 1932. On May 14, 1932, the plaintiff herein filed her petition for the removal of the defendant Edwin W. Johnson as administrator of the estate of Harry T. Johnson, and for the appointment of her nominee, Hazel Platt, as administratrix. The estate consists of the proceeds of a life insurance policy on the life of Harry T. Johnson payable to his estate.

Upon the foregoing evidence the trial court entered judgment in favor of the plaintiff and revoked the letters of administration theretofore issued to the defendant Edwin W. Johnson, and appointed Hazel Platt, plaintiff's nominee, as administratrix. It is from this judgment that defendant appeals.

The assignments of error raise the question as to whether the plaintiff herein is the widow of the decedent, and whether she is entitled to have letters of administration issued to her or her nominee. Whether she was the wife of said decedent at the time of his death depends upon the effect to be given to the interlocutory decree of divorce then in effect. Counsel for appellant rely on the case of Parsons v. Parsons, 40 Utah 602, 122 P. 907, as sustaining their position to the effect that the interlocutory decree entered February 5, 1932, was a final judgment which dissolved the marriage contract, and, inasmuch as no action was taken by the plaintiff during her husband's lifetime to modify or vacate said decree, she was not his wife at the time of his death. We think that the opinion rendered in the Parsons Case does not support the contention urged by the appellant. It simply holds that an appeal will lie from an interlocutory decree of divorce, and that for the purpose of appeal such decree is a final judgment. All matters adjudicated therein are finally determined by such decree, and cannot be reviewed upon an appeal from the final decree.

By the express provisions of Comp. Laws Utah 1917, §§ 3001 and 3002, now Rev. St. Utah 1933, §§ 40-3-6 and 40-3-7, the decree granting the divorce shall not become absolute (or final) until after the expiration of six months from the date of its entry. The entry of the decree therefore, does not at once terminate the marriage relationship and give to the parties the status of single persons. Sanders v. Industrial Com., 64 Utah 372, 230 P. 1026; Utah Fuel Co. v. Industrial Com., 65 Utah 100, 234 P. 697. That relation is dissolved when the decree becomes final. Under the authority of these cases, Harry T. Johnson was the husband of the plaintiff up to the time of his death. The statute, section 40-3-7, supra, also provides that the decree of divorce shall become final at the expiration of six months from its entry, unless "the court before the expiration of said period for sufficient cause upon its own motion or upon the application of any person, whether interested or not,...