Porter v. Estate of Pigg, 1

• Decision Date: 26 January 1993
• Docket Number: No. 1,CA-CV,1
• Parties: J.W. PORTER, Plaintiff-Appellant, v. ESTATE OF Ludie Lee PIGG, deceased, Defendant-Appellee. 91-027.
• Court: Arizona Court of Appeals

Page 1180

854 P.2d 1180

175 Ariz. 194

J.W. PORTER, Plaintiff-Appellant, v. ESTATE OF Ludie Lee PIGG, deceased, Defendant-Appellee.

No. 1 CA-CV 91-027.

Court of Appeals of Arizona,

Division 1, Department B.

Jan. 26, 1993.

Review Granted July 7, 1993.

Law Office of Michael Reddig, P.C. by Michael S. Reddig, Flagstaff, for plaintiff-appellant.

Aspey, Watkins & Diesel by Frederick M. Aspey and James E. Ledbetter, Flagstaff, for defendant-appellee.

OPINION

JACOBSON, Presiding Judge.

The sole issue in this appeal is whether a decree of dissolution of marriage that granted a dissolution but reserved disposition of property was void.

The facts are not in dispute. Appellant J.W. Porter and Irma Jean Porter were married in Newton, Mississippi, on May 28, 1983. In 1986, appellant, then domiciled in Arizona, filed a petition for dissolution of that marriage. On August 29, 1986, the Superior Court of Coconino County, Arizona, entered a "Decree of Dissolution of Marriage." This decree, in pertinent part, provided:

This proceeding having come on regularly to be heard and Petitioner [J.W. Porter] and Respondent [Irma Jean Porter] both appearing in person and by counsel, and the parties further stipulating to bifurcate this matter so that the property aspects hereof be decided and ordered at a later date, and the Court being fully advised [The Court found that one of the parties had resided and was domiciled in Arizona more than ninety days prior to the filing of the petition, that the marriage was irretrievably broken, that the conciliation provisions do not apply, and that the parties were still negotiating "remaining issues."]

IT IS ORDERED, ADJUDGED AND DECREED that:

The parties['] marriage is dissolved; and

The Court retains jurisdiction of this matter for further proceedings on the property aspects.

On December 21, 1986, appellant married Ludie Lee Pigg (Ludie Lee). On March 12, 1987, the Coconino County Superior Court entered another decree, which disposed of the property of J.W. Porter and Irma Jean Porter. Although designated a "Decree of Dissolution of Marriage," the decree dealt only with the division of property and did not purport to again dissolve the Porter marriage. The March 12, 1987, decree recited:

The Court has determined ... substantive portions of this dissolution in its Decree of Dissolution of Marriage previously entered August 29, 1986, the Court retaining jurisdiction of this matter for proceedings today on the property aspects of this dissolution of marriage.

This decree divided the property of appellant's former marriage pursuant to a stipulation. No appeal was filed by either party from the August 29, 1986, decree or the March 12, 1987, decree.

On June 14, 1989, Ludie Lee died. On January 22, 1990, appellant made a claim against the estate of Ludie Lee, as her surviving spouse, for an allowance in lieu of homestead under A.R.S. § 14-2401 and an exempt property allowance under A.R.S. § 14-2402. Both of these allowances are predicated upon appellant's status as the surviving spouse of Ludie Lee at the time of her death. The claims were disallowed by the estate and this litigation ensued.

On cross-motions for summary judgment, the trial court entered judgment in favor of the estate, holding, as a matter of law, that the bifurcated decree of dissolution entered on August 29, 1986, between appellant and Irma Jean Porter was void, and concluding that at the time appellant married Ludie Lee, he was still legally married to Irma Jean. Consequently, appellant was not the surviving spouse of Ludie Lee at the time of her death. This appeal followed.

The trial court's finding that the August 19, 1986 decree was void was based upon the following excerpt from Czarnecki v. Czarnecki:

As a preliminary matter, we note that the decree of December 13, 1973, which dissolved the marriage prior to the resolution of the property issues was void.

123 Ariz. 478, 480, 600 P.2d 1110, 1112 (App.1978), approved on other grounds, 123 Ariz. 466, 600 P.2d 1098 (1979) (emphasis added).

Two observations need to be made concerning this statement. First, it is clearly dictum. The issue in Czarnecki was the division of military retirement pay that was not included in any of the decrees issued in that case, including the final decree entered in 1974. Therefore, any issue of the validity of the previous decree dissolving the marriage prior to disposition of property issues was completely immaterial to any resolution of a subsequent petition to dispose of the military retirement pay. Second, this statement in Czarnecki relies on a prior decision of that court, Brighton v. Superior Court, 22 Ariz.App. 291, 526 P.2d 1089 (1974). Czarnecki, 123 Ariz. at 480, 600 P.2d at 1112. Brighton was a special action to test the propriety of a trial court's action in attempting to sign a decree of dissolution of marriage prior to a full hearing to determine property issues. In that case, the court of appeals properly held:

We agree with petitioner that the language of A.R.S. § 25-312 clearly mandates that all issues relative to the marital status and the termination thereof be resolved prior to entry of a decree of dissolution. Piecemeal litigation is not to be encouraged; to the contrary, amicable settlement of custody, maintenance and property disputes between spouses is the desirable goal. Were dissolution of the marital status to be allowed prior to resolution of the other issues, litigation would be fostered rather than deterred.

Brighton, 22 Ariz.App. at 292, 526 P.2d at 1090.

After making these completely valid observations and therefore implying that the trial court's action was in error, the Brighton court made the following unfortunate conclusion:

We hold that the respondent court lacks jurisdiction to enter a decree of dissolution until all issues between the parties are resolved.

Id. (emphasis added).

In our opinion, the use of the words "void" and "lacks jurisdiction" in these cases is improper under the following reasoning of the Arizona Supreme Court:

As this court recently discussed in Cockerham v. Zikratch, 127 Ariz. 230, 619 P.2d 739 (1980), the term "void" is often misused. While it may have been erroneous under the law applicable at the time the judgment was rendered for the trial court to award the property to appellee, such a judgment is not necessarily void. Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties.... Erroneous judgments, on the other hand, are those which have been issued by a court with jurisdiction but are subject to reversal on timely appeal.

Auman v. Auman, 134 Ariz. 40, 42, 653 P.2d 688, 690 (1982) (...