Thorson v. Thorson

• Decision Date: 03 January 1996
• Docket Number: No. 950114,950114
• Citation: 541 N.W.2d 692
• Parties: Doris Elaine THORSON, Plaintiff, Estate of Doris Elaine Thorson, by and through its Personal Representative Debra Ann Meyers, Intervenor and Appellant, v. Allen Leroy THORSON, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 692

541 N.W.2d 692

Doris Elaine THORSON, Plaintiff Estate of Doris Elaine Thorson, by and through its Personal Representative Debra Ann Meyers, Intervenor and Appellant, v. Allen Leroy THORSON, Defendant and Appellee.

Civ. No. 950114.

Supreme Court of North Dakota.

Jan. 3, 1996.

Daniel J. Chapman, Chapman and Chapman, Bismarck, for intervenor and appellant.

Bryan Van Grinsven, Farhart, Lian, Maxson, Louser & Zent, Minot, for defendant and appellee.

VANDE WALLE, Chief Justice.

The Estate of Doris Thorson appealed from an order dismissing Doris Thorson's action for divorce. We conclude an action for divorce abates on the death of a party and we affirm.

On March 14, 1994, after nineteen years of marriage, Doris Thorson filed for divorce from Allen Thorson. Although each had children from previous marriages, no children were born of this marriage, the second marriage for both parties. At the time of their marriage, Doris had been diagnosed with leukemia but it was in remission for several years during the marriage. Prior to filing for divorce, however, Doris's symptoms of leukemia returned, and she chose not to seek further treatment.

Under an amended interim order, Allen and Doris were restrained from disposing of or encumbering any of the real or personal property, except as might be necessary in the ordinary course of business. Doris filed a motion, dated August 5, 1994, to compel the sale of the marital home which Doris and Allen held in joint tenancy. The parties had signed a listing agreement to sell the house for $39,500. In her affidavit in support of the motion, Doris stated that the parties had received a written offer to purchase the home for the full listing amount, but that Allen had refused to cooperate in the sale. Doris further explained that she suffered from leukemia and, fearing that she did not have long to live, felt "entitled to receive something from the marital estate that [she] might enjoy before [her] death...." Allen opposed the sale and stated in his affidavit that he withdrew his consent to the sale when he discovered that the price listed in the signed agreement was less than $45,000. After a hearing on the motion on August 16, 1994, the trial court denied Doris's motion.

On August 18, 1994, Doris filed a Certificate of Readiness. Allen filed a Certificate of Non-Readiness, dated August 22, 1994, stating that discovery had not been completed and that more time was needed to prepare for trial. Doris died August 24, 1994.

A motion was filed to substitute Debra Meyers, Doris Thorson's daughter and the personal representative of Doris Thorson's estate, as the Plaintiff in the divorce action to pursue the equitable distribution of the marital property. Allen opposed the motion and moved for dismissal claiming that, under section 14-05-01(1), NDCC, the marriage was dissolved by Doris's death; thus, the divorce action was moot. On October 19, 1994, the trial court issued an order denying Plaintiff's motion and granting dismissal. The trial court held "the cause of action for divorce, along with the incidental right to pursue property interests, abates with the death of a party. Where no dispositive order relating to permanent disposition of the property of a marriage has been made at the time of death, no issue survives." Arguing that Plaintiff did not have "an appropriate chance to respond" to the motion for dismissal, the personal representative moved the trial court to reconsider. The trial court reconsidered its order but issued a second order on October 25, 1994, dismissing the action. On April 18, 1995, a Notice of Appeal was filed.

Allen moved to dismiss the appeal as untimely under Rule 4(a), N.D.R.App.P., which provides:

"In a civil case the notice of appeal ... shall be filed with the clerk of the trial court within 60 days of the date of the service of notice of entry of the judgment or order appealed from...."

We have said that, ordinarily, the time for appeal begins when notice of entry is served. See, e.g., Morley v. Morley, 440 N.W.2d 493, 494 (N.D.1989). The North Dakota Rules of Civil Procedure provide that the counsel for the prevailing party is responsible for serving notice of entry. N.D.R.Civ.P. 77(d); Morley, 440 N.W.2d at 494 (citing Rule 77(d) and its explanatory note); Lizakowski v. Lizakowski, 307 N.W.2d 567, 571 (N.D.1981) [noting that the rules do not require a separate, formal document to provide notice of entry of judgment; rather, such notice is "simply written notice that judgment has been entered"]. Here, Allen's attorney did not serve notice of entry for either October order. As in Morley, regular procedures were not followed.

Nonetheless, we recognize that "irregular procedures do not extend the time for appeal indefinitely. Actual knowledge of entry of an order, when clearly evidenced by the record, commences the running of the time for appeal." Morley, 440 N.W.2d at 495 [citing Lang v. Bank of North Dakota, 377 N.W.2d 575 (N.D.1985) ]. Allen asserts that the time for appeal began October 25, 1994, when the trial judge issued and served copies of the second order of dismissal to the parties' attorneys, as evidenced in the record by an affidavit of service by mail prepared on behalf of the Williams County District Court. Citing precedent, Allen argues that actual knowledge has been recognized under various circumstances and asserts that, in this instance, the trial court's affidavit of mailing gave the personal representative actual knowledge of entry of the order. However, in prior cases, the factual predicate for determining that an appealing party had actual knowledge of entry of the judgment or order has included some action taken by the appealing party, as clearly evidenced in the record. See Morley, 440 N.W.2d at 494-95 (appealing party's stipulation to cancel a hearing showed she had actual knowledge of custody modification order); Lang, 377 N.W.2d at 577-78 (time for appeal began when Lang filed an application for a writ of mandamus); Klaudt v. Klaudt, 156 N.W.2d 72, 76 (N.D.1968) [time for appeal began when appealing party filed notice of motion to vacate the original judgment]. An affidavit of mailing may be record notice but it does not equate with actual notice under these precedents establishing an exception to the requirement of service of notice of entry of judgment by the prevailing party.

We conclude that actual knowledge of entry of the judgment or order requires action evident on the record on the part of the appealing party. We are then assured that the appealing party indeed had knowledge even though regular procedures were not followed. In this instance, the affidavit of mailing was filed by the trial court. ¹ Following the trial court's affidavit, there were no entries in the record until April 6, 1995, when the Plaintiff's attorney stipulated to substitution of counsel. Twelve days later, the personal representative filed a Notice of Appeal. Thus, April 18, 1995, was the first time that the record clearly evidenced that Plaintiff had actual knowledge of entry of the order, consequently the appeal is timely.

The personal representative for Doris's estate argues that the divorce action, in essence the equitable distribution of property, was not abated by Doris's death. The appellant cites section 28-01-26.1, NDCC, which provides "[n]o action or claim for relief, except for breach of promise, alienation of affections, libel and slander, abates by the death of a party...." Because this section does not include divorce, the personal representative claims that the trial court erred when it dismissed the divorce action. Allen asserts, however, that marriage can be dissolved either by the death of one of the parties or by divorce. N.D.Cent.Code Sec. 14-05-01. Allen contends that the pending divorce action was rendered moot by Doris's death.

The personal representative acknowledges that the greater weight of authority holds that a divorce action is abated upon the death of one of the parties. See In re Marriage of Allen, 8 Cal.App.4th 1225, 10 Cal.Rptr.2d 916, 918 (1992) [noting that when a party dies before dissolution of the marriage, the "action must abate and the court can make no further orders with respect to property rights, spousal support, costs or attorney fees"]; Oliver v. Oliver, 216 Iowa 57, 248 N.W. 233, 234 (1933) [stating that death ends marital status; if a divorce decree has not been entered prior to death, then one can never be entered]; Williams v. Williams, 146 Neb. 383, 19 N.W.2d 630 (1945); Peterson v. Goldberg, 146 Misc.2d 474, 550 N.Y.S.2d 1005, 1007 (Sup.Ct.1990) [recognizing that a divorce action abates upon the death of one of the parties prior to judgment of divorce because "the cause of action for divorce is personal, and upon death, the marriage is terminated"], aff'd, 180 A.D.2d 260, 585 N.Y.S.2d 439 (1992); Pellow v. Pellow, 714 P.2d 593, 597 (Okl.1985) [stating that the court is, in effect, deprived of jurisdiction in a divorce action when a spouse dies before the entry of a final decree]; Larson v. Larson, 89 S.D. 575, 235 N.W.2d 906 (1975); see also Annotation, Effect of Death of Party to Divorce or Annulment Suit Before Final Decree, 158 A.L.R. 1205 (1945) [stating that the "settled rule" is that a divorce action, before the entry of a final decree, abates upon the death of one of the parties].

In Larson, the court cited a statute similar to section 14-05-01, NDCC, and stated:

"[Marriage] is terminated in only two ways--death or divorce. Death having come in advance of any judicial decree the [marriage] was thereby severed. Thereafter there was no [marriage] upon which the decree could work. The law in this state is as it is in many others: in a suit for divorce where the death of one of the parties to the suit occurs before a decree of divorce has been issued the action abates and the jurisdiction of the court to proceed with the action or to make further determination of...