Kern v. Kern

• Decision Date: 18 April 1968
• Citation: 261 Cal.App.2d 325,67 Cal.Rptr. 802
• Parties: M. R. KERN, Plaintiff and Respondent, v. G. E. KERN, Defendant and Appellant. Civ. 8922.
• Court: California Court of Appeals Court of Appeals

Page 802

67 Cal.Rptr. 802

261 Cal.App.2d 325

M. R. KERN, Plaintiff and Respondent, v. G. E. KERN, Defendant and Appellant.

Civ. 8922.

Court of Appeal, Fourth District, Division 2, California.

April 18, 1968.

Rehearing Denied May 10, 1968.

Hearing Denied June 11, 1968.

[261 Cal.App.2d 327] Marshall Miles, San Bernardino, for defendant and appellant.

Chapman & Sprague, San Bernardino, and Leo S. Rich, Los Angeles, for plaintiff and respondent.

OPINION

GABBERT, Associate Justice pro tem. ^*

The plaintiff and respondent herein, M. R. Kern, is now deceased and was the wife of defendant and appellant, G. E. Kern. For convenience, they may be referred to respectively as wife or respondent and husband or appellant.

The wife obtained an interlocutory decree of divorce from the husband on April 15, 1965. In May 1965 she suffered a heart attack and was hospitalized for a week and then spent three weeks recuperating with friends in Los Angeles. On June 10th or 11th the husband picked her up and brought her back to the home formerly occupied by the parties in San Bernardino. They lived together some eight or nine days before the wife suffered a severe stroke and heart attack on June 19, 1965. She was partially paralyzed and rendered mentally incompetent, and was confined to hospitals or rest homes until her death October 12, 1966.

On October 12, 1966, Mr. Brock, conservator of the person and estate of the wife, executed an affidavit for a final decree of divorce. The affidavit states that the parties had not become reconciled and were both living. The Brock affidavit was forwarded to the wife's attorneys but, because October 12 was a legal holiday, it was not presented to the court, and the final decree was not entered, until October 13. In a later declaration filed, opposing the motion of the husband to set aside a final decree of divorce granted as a result of the original affidavit for a final decree, Brock declared that when he filed the affidavit he did not know of the death of the wife.

In December 1966 the husband filed a motion to set aside the final decree. The motion so filed was continued for hearing on several occasions. Before it could be heard, Mr. Cooper, administrator of the estate of the wife (probate proceedings being in Los Angeles County) moved for entry of a final judgment of divorce Nunc pro tunc as of April 1, 1966. On April 14, 1967, the court Granted both motions:

(1) Setting aside the final decree of divorce granted October 13, 1966, and

(2) Ordering a final judgment of divorce entered nunc pro tunc as of April 1, 1966.

A number of affidavits and declarations by various persons were filed covering the actions of the parties during the period between the entry of the interlocutory decree and the date of the wife's death.

Before considering the merits of the case, the status of the parties is cause for brief discussion.

Appellant argues that the right to obtain a final judgment of divorce is a personal right which should be exercised by a party. He further contends that the conservator and administrator had no authority to act because of the failure to have a substitution of a party made after death of the wife.

Respondent replies that a person, not a party, may obtain the entry of a final decree of divorce. He argues that the fact that the administrator of the estate of Mrs. Kern was not substituted as party-plaintiff is, at most, a mere irregularity or technical defect.

The general rule is that, after death of a party, it is improper to render judgment for or against him without first substituting his executor or administrator. Many decisions hold that an order entered after the death of a party to an action is void in the absence of the substitution of the personal representative of such decedent. (Munchiando v. Bach, 203 Cal. 457, 458, 264 P. 762; Hamilton v. Hamilton, 83 Cal.App.2d 771, 774, 189 P.2d 722; Maxon v. Avery, 32 Cal.App.2d 300, 302, 89 P.2d 684; Scoville v. Keglor, 27 Cal.App.2d 17, 80 P.2d 162; Witkin, Calif. Proc., vol. 1, p. 399.)

There is authority, however, which holds such technical lapse to be a mere irregularity. (Machado v. Flores, 75 Cal.App.2d 759, 761, 171 P.2d 440; Hogan v. Superior Court, 74 Cal.App. 704; Restatement, Judgments, § 78.)

In the case of Hamrick v. Hamrick, 119 Cal.App.2d 839, 260 P.2d 188, the court discusses the propriety of entering a Nunc pro tunc final decree on motion of a defendant's second wife after his death. The second wife had married the husband one day before the entry of a final decree which had been obtained by the first wife. The first day on which the final decree could have been entered was some eight days earlier than the date of actual entry of the final decree. The husband was killed while in the armed services during the Korean conflict, and the second wife sought the entry of the final decree Nunc pro tunc to protect her marital position and the status of children of the second marriage.

The first wife contended that the second wife was not a proper party to make the motion since she was not a party to the divorce proceeding. The court rejected this position and stated:

'Section 132 gives the court the Power to enter a final judgment after death. Section 133 gives the court the Power to enter a final judgment Nunc pro tunc. These sections must be read together. * * * While it is true the first sentence of § 133 provides for Nunc pro tunc entry 'on the motion of either party' the second sentence (under which respondent presented her motion) contains no such language, and such language In the case of a death (which is the case here) would be just as inappropriate in § 133 as it would be in § 132.

'Since under § 132 the Power of the court remains unimpaired to enter a final judgment of divorce after the death of either or both of the parties, and since §§ 132 and 133 relate to the same subject and must be construed together, * * * we are satisfied that the court had the Power under § 133 to make the Nunc pro tunc entry as of July 6, 1950, on the motion of respondent, who, after all, was seeking only that to which Lieutenant Hamrick, the party defendant, would have been clearly entitled had he lived, namely, the validation of their marital status as of July 12, 1950.' ( Citations omitted (original emphasis).) (Hamrick v. Hamrick, supra, 119 Cal.App.2d 839, 843, 845, 260 P.2d 188, 190, 191.)

It would appear that there is authority for the court to consider the failure to substitute a personal representative for the deceased in this case as a mere irregularity. Additional cases cited below will establish the fact that the right to obtain a final decree of divorce is a right that can be exercised by someone Not a party to the divorce action. Thus, the failure to substitute the administrator of the wife's estate as plaintiff after her death is not a jurisdictional defect.

The various issues relating to vacating the final decree of divorce and the entry of the final judgment of divorce Nunc pro tunc were contested on the merits. At most, the only action lacking was a formal substitution order. This, at best, was a mere irregularity in procedure not affecting any substantial right which, in view of the circumstances, would hardly warrant a reversal.

The husband received a favorable ruling from the trial court on his motion to set aside the final decree of divorce which was entered at the request of the conservator. There is no attack on this ruling in the appeal before us. The determination of husband's motion by the trial court was amply supported on the ground that the declaration for the entry of the final decree made by the conservator was at best a mistake, and at worst a fraud on the court. Since the wife was deceased at the time the declaration was filed and the final decree signed, and these facts were not presented to the court, the action of the court in setting aside the final decree first entered was entirely proper.

The husband, in his brief on appeal, directs his attack against the action of the trial court granting the motion of the administrator to enter the final decree of divorce Nunc pro tunc and contends that:

(1) The motion for a final judgment of divorce was not supported by substantial evidence;

(2) The court had no power to grant a final decree of divorce when that marriage had already been dissolved by death of a party;

(3) There was no showing of mistake, negligence or inadvertence to justify the court in entering the final judgment Nunc pro tunc.

These contentions are controverted in each instance by the respondent.

First, considering the question as to whether there was substantial evidence to support plaintiff's motion for entry of a final decree of divorce Nunc pro tunc, we must look at the declarations filed before the trial judge.

A major question before the trial judge was the issue of reconciliation. An analysis of the declaration shows that the purported reconciliation had been in effect for nine or ten days up until the time that Mrs. Kern was taken seriously ill and thereafter spent the rest of her life under medical or rest home care. Her mental condition was also such that she apparently was unable to make decisions for herself after her stroke, and a conservator of her person and estate was appointed. Mr. Kern visited her frequently during this period before her death.

Some of the opposing declarations cast doubt on the true nature of the claimed reconciliation. The primary difficulty of the marriage was the drinking problem which plagued the husband. The declarations and transcript of the default hearing on the divorce point out that this caused the divorce in the first place, and that the wife was wary of the promises of reformation made by the husband.

The general rule is that a reconciliation will result if the parties intended to and did reunite as husband and wife. There must be a mutual intention so to reunite (Dean v. Dean, 77 Cal.App.2d 98, 174 P.2d 705),...