Marriage of Wilson, Matter of
Decision Date | 17 February 1989 |
Docket Number | No. 62028,62028 |
Parties | In the Matter of the MARRIAGE OF Anita S. WILSON, Appellee, and Charles L. Wilson, through Joyce Simpson, Administrator of the Estate of Charles L. Wilson, Appellant. |
Court | Kansas Court of Appeals |
Syllabus by the Court
1. A judgment is not effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the district court.
2. In an action for divorce, when a party dies after the divorce is orally granted but prior to a journal entry of judgment being signed by the trial judge and filed with the clerk of the district court, it is held that K.S.A. 60-258 renders the divorce decree ineffective.
Charles E. Millsap, of Joseph, Robison & Anderson, P.A., Wichita, for appellant.
W.J. Fitzpatrick, of Fitzpatrick & Bass, Independence, for appellee.
Before RULON, P.J., GERNON, J., and DAVID W. KENNEDY, District Judge, Assigned.
In this matrimonial action, Charles L. Wilson died after the divorce hearing, but before the journal entry of judgment and decree of divorce was signed by the trial judge and filed with the clerk of the district court. The district court set aside the journal entry and decree of divorce and ruled that Charles and Anita were married when Charles died. The administrator of Charles' estate appeals the district court's order setting aside the journal entry and decree of divorce. Finding no reversible error, we affirm.
The undisputed facts of this case are as follows:
In June 1987, Anita Wilson filed a divorce petition. Her husband, Charles, answered and filed a counterclaim also praying for a decree of divorce. On November 5, 1987, a hearing was conducted in district court. Anita testified that she wanted the marriage dissolved and that the parties had reached an agreement regarding the terms and conditions of the divorce, including property division, child custody and support, and maintenance. Charles testified and requested a divorce be granted and further stated that he agreed with Anita's testimony regarding their agreement. At the conclusion of the hearing, the court ordered Anita's attorney to prepare the decree.
Twenty-nine days after the hearing, on December 4, 1987, at 12:16 a.m., Charles died. Approximately nine hours later, on December 4, 1987, at 9:00 a.m., the signed journal entry and decree of divorce was delivered to the clerk of the court for filing.
Ten days later, Anita filed a suggestion of death and subsequently filed a motion pursuant to K.S.A. 60-260 requesting that she be relieved from the effect of the journal entry and decree of divorce. At the conclusion of the hearing on Anita's motion, the district court held:
The court's order was journalized and the administrator of Charles' estate filed a timely notice of appeal.
The sole issue on appeal is whether the district court erred in setting aside the journal entry and decree of divorce.
This court's scope of review on questions of law is unlimited. Utility Trailers of Wichita, Inc. v. Citizens Nat'l Bank & Tr. Co., 11 Kan.App.2d 421, 423, 726 P.2d 282 (1986).
In the present case, although the result may be perceived as harsh, the trial court properly found the journal entry and decree of divorce ineffective. K.S.A. 60-258 provides:
In State v. Dubish, 234 Kan. 708, 675 P.2d 877 (1984), the Supreme Court discussed K.S.A. 60-258 as it existed prior to its amendment in 1976 and then reviewed the statute as amended. Justice Lockett, writing for a unanimous court, stated:
Dubish, 234 Kan. at 714-15, 675 P.2d 877. (Emphasis added.)
The Dubish case involved the question of whether a criminal defendant and the victim of aggravated sodomy were married when the crime occurred. The aggravated sodomy statute in effect at that time precluded conviction of sodomy for activities between a husband and wife. In that case, the sodomy occurred on October 4, 1982, and the journal entry and decree of divorce was signed by the trial judge and filed with the clerk on October 15, 1982. The Supreme Court concluded that the divorce took effect on October 15, 1982; thus, the defendant and the victim were still married when the sodomy occurred. The Supreme Court reversed the aggravated sodomy conviction and set aside the sentence.
In the present case, the journal entry and decree of divorce was signed by the judge and filed with the clerk on December 4, 1987, at 9:00 a.m. Charles and Anita were married until that time. Charles died before the journal entry was effective; thus, the parties were married at the time of his death.
Charles' estate asserts that the division of property and marital status of the parties are two aspects of a divorce action that are divisible. This position is untenable. The cases cited by counsel do not support this proposition; in each of the cited cases, the journal entry and decree of divorce was effective. Adamson v. Snider, 131 Kan. 284, 291 Pac. 744 (1930); Craig v. Craig, 112 Kan. 472, 212 Pac. 72 (1923); Martin v. Martin, 5 Kan.App.2d 670, 623 P.2d 527, rev. denied 229 Kan. 670 (1981).
Although separation agreements are authorized by statute, K.S.A.1988 Supp. 60-1610(b)(3), division of property and apportionment of debt are not necessary where the parties are not divorced. K.S.A. 60-258 renders the divorce decree ineffective in this case; therefore, the agreement incorporated therein must also be ineffective. If there is no divorce, there is no division of marital property.
This court is duty bound to follow the law as interpreted by the Kansas Supreme Court absent some indication of change by that court. Because the Dubish court held that K.S.A. 60-258 must be applied without exception, the better practice would be for the district court to sign and file a judgment form immediately following a divorce hearing if counsel have not prepared the appropriate journal entry in advance.
The issue of whether the parties' property settlement agreement can be enforced by a separate action need not be decided; that issue is not properly before this court because it was not presented to the district court.
The district court's order setting aside the journal entry and decree of divorce is affirmed.
Appellant argues K.S.A. 60-1802 prevents an action for divorce from abating after the death of one of the parties. This argument ignores the survival of claims statute, K.S.A. 60-1801. In Gross v. VanLerberg, 231 Kan. 401, 405, 646 P.2d 471 (1982), the Supreme Court stated that "whether a particular cause of action survives the death of a party is to be determined by K.S.A. 60-1801. K.S.A. 60-1802 simply provides the procedure for the continuation of an action by substitution of parties in cases where the cause of action survives the death of a party."
Pursuant to K.S.A. 60-1801, it must be determined whether at common law a divorce action survived the death of one of the parties. In both Adamson v. Snider, 131 Kan. 284, 291 P. 744 (1930), and Craig v. Craig, 110 Kan. 13, 202 P. 594 (1921), the Kansas Supreme Court stated that, where the only issue is the marital status of the parties, an action for divorce does not survive the death of one of the parties.
If there had not been a hearing on November 5, 1987, and if the trial court had not entered a judgment, the action as it related to the marital status of the parties would have abated. However, those are not the facts of this case.
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