Marriage of Shayman, In re

• Decision Date: 29 November 1973
• Citation: 35 Cal.App.3d 648,111 Cal.Rptr. 11
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Mary L. and Milton W. SHAYMAN. Mary L. SHAYMAN, Appellant, v. Milton W. SHAYMAN, Respondent. Civ. 32253.

Page 11

111 Cal.Rptr. 11

35 Cal.App.3d 648

In re the MARRIAGE OF Mary L. and Milton W. SHAYMAN.

Mary L. SHAYMAN, Appellant, v. Milton W. SHAYMAN, Respondent.

Civ. 32253.

Court of Appeal, First District, Division 4, California.

Nov. 29, 1973.

Mezzetti & Testa, Law Offices of Mariani, Rainville & Hardy by Jack Rainville, San Jose, for appellant.

Rankin, Oneal, Center, Luckhardt, Marlais, Lund & Hinshaw by Edward A. Hinshaw, San Jose, for respondent.

THE COURT:

Appellant, Mary Shayman, filed a complaint for divorce against Milton Shayman, who answered and crosscomplained. The cause was tried, and written findings of fact and conclusions of law were filed by the court on May 26, 1971. That document set forth the rights of the parties with regard to items of community property, child custody, support, attorneys' fees and costs. The section entitled Conclusions of Law contained provisions for the disposition of these matters in the same form that they would ordinarily appear in a judgment, and the document concluded with the statement 'Let judgment be entered accordingly.'

On June 17, 1971, Milton Shayman passed away. No judgment had been entered. Subsequently, Milton Shayman's attorney in the above proceedings, for reasons which do not appear in the record, filed a noticed motion to have an interlocutory judgment entered Nunc pro tunc to the date of filing the findings and conclusions. This motion was granted, the trial court relying in part upon section 669 of the Code of Civil Procedure, which provides that, if a party dies after trial and submission of his case to a judge sitting without a jury for decision, the court may nevertheless render judgment thereon.

Mary Shayman appeals, contending that the trial court had no jurisdiction to proceed as it did.

It is clear that the court had rendered its decision and the substance of its judgment prior to the death of Milton Shayman.

Rule 232 of the California Rules of Court provides that, where written findings and conclusions have been requested, the court is to submit findings, conclusions and a proposed judgment to the parties, who have a specified period of time in which to file objections. If no objection is filed within that period, the court is to sign and file what then constitutes its findings, conclusions and judgment. Judgment is then to be entered immediately pursuant to section 664 of the Code of Civil Procedure. Those rules applicable to proceedings under the Family Law Act specify that an interlocutory judgment of dissolution is to be rendered in a particular form--that set forth in rule 1287 of the California Rules of Court.

Although the document entitled Findings of Fact and Conclusions of Law, which was filed in this case, did not expressly state that it contained the 'judgment' of the court, the document in fact comprised the court's decision. Not only were findings and conclusions set forth, but orders for the disposition of property and other matters were expressed. Had judgment been set forth in the proper form as prescribed by rule 1287, it would have been subject to immediate entry in accordance with section 664 of the Code of Civil Procedure.

It is also apparent, from the court's explanation of its valuation of the insurance policies, that the parties were aware of the status of Milton Shayman's serious heart condition at the time when the findings and conclusions were filed.

It is true, as appellant asserts, that the death of a party to a dissolution proceeding abates the cause of action, as the status of the parties is no longer before the court, and that the court thus loses jurisdiction to make any Further determination of property rights, alimony, costs or attorneys' fees. (Darter v. Magnussen (1959), 172 Cal.App.2d 714, 718, 342 P.2d 528; Bevelle v. Bank of America (1947), 80 Cal.App.2d 333, 334, 181 P.2d 730; see also McClenny v. Superior Court (1964), 62 Cal.2d 140, 144, 41 Cal.Rptr. 460, 396 P.2d 916, and Kirschner v. Dietrich (1895), 110 Cal. 502, 505, 42 P. 1064.) However, we find nothing in the above cases or the related cases brought to our attention which would render the court powerless to cause entry of a judgment in conformity with a decision which has already issued. Kirschner v. Dietrich, Supra, 110 Cal. 502, 42 P. 1064, which appears to have been a leading case in establishing the general rule with regard to the court's jurisdiction to proceed with determination of property rights, specifically refers to that jurisdiction ceasing when death of a party occurs 'before a Decision upon that question is made'. (Emphasis added; 110 Cal. 502, 505, 42 P. 1064, 1065.) Moreover, the holding of McClenny v. Superior Court, Supra, 62 Cal.2d 140, 41 Cal.Rptr. 460, 396 P.2d 916, to the effect that the court's jurisdiction as to property rights which have already been adjudicated would not be abated, is in fact supportive of a power to render formal judgment where a decision has issued. Although there is incidental language in the case of Poon v. Poon (1966), 244 Cal.App.2d 746, 751, 53 Cal.Rptr. 365, to the effect that the court's jurisdiction 'to...