In re Marriage of McIntosh
| Decision Date | 29 January 2004 |
| Docket Number | No. 25510.,25510. |
| Citation | 126 S.W.3d 407 |
| Parties | In re the MARRIAGE OF Kristi C. McINTOSH and Cody L. McIntosh. Kristi C. McIntosh, Petitioner-Respondent, v. Cody L. McIntosh, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
This appeal is from an amended judgment and decree of dissolution of marriage. The case, with its unusual procedural history, raises issues concerning the effect of a spouse's death on a pending action for dissolution of marriage, and the trial court's power to subsequently enter a judgment nunc pro tunc.
Kristi C. McIntosh ("Kristi") and Cody L. McIntosh ("Cody") were married on July 11, 1987, and had two children before Kristi filed a petition for dissolution of marriage on August 8, 2000. That case was tried to the court on March 13, 2001. At the close of the evidence, the trial court stated on the record its belief that there was enough evidence to indicate that the marriage could not be preserved, and that the court was "going to dissolve it" and "take the matter of property division under advisement." The court ruled that the custody arrangements then in place would remain in effect and, in conclusion, said, "The marriage is dissolved, the Court takes matters of division of property under advisement until April the 3rd [2001]."
On the same day, the court utilized a printed form entitled "Docket Entry," which contained various potential findings that could be adopted by placing a mark beside the printed entries. The entries checked by the trial court in this case stated that the petition had been on file for thirty days, that Kristi had been a resident of Missouri for more than ninety days preceding the filing of the petition, that there was no reasonably likelihood that the marriage could be preserved, that the marriage was irretrievably broken, that joint custody of the children was granted to the parties with Kristi to have primary physical custody "as per formal order," that neither party was to pay maintenance to the other, that "marital property and debts [were to be] divided as per formal order," and that costs were taxed against Kristi. The court also wrote in the docket entry that "[d]ivision of property [was] taken under advisement." The trial court did not place a mark next to a box denominated "Judgment and Decree of Dissolution of Marriage ordered."
Kristi died on May 13, 2001, before the trial court took further action. On May 31, 2001, Cody filed a "Motion To Abate and Dismiss Dissolution Action" based upon Kristi's death. On June 15, 2001, the trial court overruled that motion in a written order that also stated that "the marriage of the parties [was] dissolved." We dismissed Cody's appeal of that order for lack of a final, appealable judgment, and because there had been no substitution of parties.
On March 20, 2002, after the dismissal of the first appeal, Kristi's attorney filed a "Suggestion of Death" and requested that the trial court substitute as a party Kristi's estate, Eugene Caudle, Personal Representative ("Respondent"). On April 2, 2002, the trial court entered an order substituting Respondent as petitioner in the dissolution action.
On April 24, 2002, the trial court entered a written "Judgment and Decree of Dissolution of Marriage" showing Respondent as a party and stating that the judgment was effective retroactive to March 13, 2001 (the date of the hearing of the dissolution suit), but also ordering that the marriage was "dissolved as of May 13, 2001" (the date of Kristi's death). The judgment did not provide for custody or support of the parties' children (other than to approve a parenting plan that is not included with the copy of the judgment in the legal file here), and stated that "all matters of property division [were] taken under advisement."
On August 13, 2002, Respondent filed a "Motion to Correct Clerical Mistake in Judgment Pursuant to Rule 74.06(a)," noting therein that the trial court, at the conclusion of the dissolution trial, had stated that "the marriage [was] dissolved," but had failed to check that entry on the printed docket entry form. The trial court, in response to this motion, entered a "Judgment and Decree of Dissolution of Marriage Nunc Pro Tunc" ("Nunc Pro Tunc Judgment") on February 4, 2003 stating, "Now on this 13th day of March, 2001, comes [Kristi] in person and by her attorney," and containing an order that the marriage was dissolved. The judgment also ordered Cody to pay child support in the amount of $344 per month beginning June 1, 2001 and to provide health insurance for the children, ordered that each of the parties could claim one of the children as a deduction on his or her tax returns, ordered the parties to notify each other in writing at least sixty days prior to a proposed relocation of the principal residence of the children, ordered that Cody be awarded specifically described "marital real property," ordered Cody to pay "Petitioner" $42,000 and all outstanding credit card debts, awarded "Petitioner" fifty shares of First Banchares, Inc., and ordered that each party shall keep any other items in his or her possession.
Without further explanation in the record, the trial court, on February 7, 2003, entered an "Amended Judgment and Decree of Dissolution of Marriage" that, except for the title, was exactly the same as the judgment entered nunc pro tunc three days earlier. It is from that amended judgment that this appeal flows.1
In his sole point on appeal, Cody contends that the trial court erred in "entering judgment" because Kristi died before the marriage was dissolved, resulting in abatement of the dissolution action, and that, as a result, the trial court lost jurisdiction to enter a judgment of dissolution.2 For the reasons discussed below, Cody's point is denied.
The general rule in Missouri has been that an action to determine the issue of marital status abates upon the death of either party to the action. See In re Marriage of Carter, 794 S.W.2d 321, 322 (Mo. App. S.D.1990) (); Bakker v. Employee Sav. Plan of McDonnell, 919 S.W.2d 16, 18 (Mo.App. E.D.1996) ().
As to the effect of such abatement, we are cognizant of the numerous cases holding that abatement "is a destruction of the cause of action," and that upon the death of a spouse before judgment there is no res for a decree to operate upon and the issue of marital status becomes moot. Cregan v. Clark, 658 S.W.2d 924, 926-27 (Mo.App. W.D.1983). The death of a spouse prior to a decree by the trial court causes "the immediate abatement and final termination of the dissolution proceeding," with the result that a court does not have power thereafter to substitute parties. Parkhurst v. Parkhurst, 799 S.W.2d 159, 161 (Mo.App. E.D.1990). Furthermore, orders entered in a dissolution action after a spouse's death but prior to the entry of a judgment of dissolution are "void." Bakker at 18.
However, in Linzenni v. Hoffman, 937 S.W.2d 723 (Mo. banc 1997), our supreme court, in a dissolution of marriage suit, held that it was not necessary that a judgment meeting the qualifications of a final, appealable judgment pursuant to the provisions of Rule 74.01(a)3 be entered prior to the death of one of the spouses in order to avoid abatement of the action. Id. at 726. Rather, the court held that Rule 74.01(a), which defines a "judgment," is procedural, whereas the issue of abatement is a matter of substantive law, and that "under the policy of our dissolution of marriage act, the doctrine of abatement is inapplicable where a dissolution of marriage has been ordered prior to the death of a party, even though the order may be partial, interlocutory or not a final judgment resolving all issues in the case." Id. There, the court found that the marriage under consideration was "ordered" dissolved, and that there was no abatement where the trial court signed a written "work sheet" stating that the marriage was "ordered dissolved" and signed a letter to counsel ordering the marriage dissolved, all before the death of one of the parties. Id.
In the instant case there was no final judgment that the marriage was dissolved entered prior to Kristi's death, and, in contrast to the facts in Linzenni, there was no written order dissolving the marriage. Accordingly, Cody contends that the entire suit abated, notwithstanding the holding in Linzenni. Respondent does not contend otherwise, but argues that the Nunc Pro Tunc Judgment provided the previously missing finding in the docket entry that the marriage was dissolved, and thereby cured the abatement pursuant to Linzenni. The question then becomes whether a trial court may enter a nunc pro tunc order after a suit has abated and, thereby, cure the previous abatement.
An analysis of Cody's contention is perhaps best initiated with a brief statement of the law concerning judgments and orders nunc pro tunc. The common law concept of nunc pro tunc judgments is codified in Missouri by way of Rule 74.06(a), which states that
[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.
There is a long line of cases establishing a well-defined and limited scope to such orders. In Pirtle v. Cook, 956 S.W.2d 235 (Mo. banc 1997), our supreme court stated:
It is universally held that the only true function of a nunc pro tunc order is to...
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