Whitmire v. Whitmire

• Decision Date: 20 June 2003
• Docket Number: No. 97,344.,97,344.
• Citation: 78 P.3d 556,2003 OK CIV APP 87
• Parties: Rita Jo WHITMIRE, Plaintiff/Appellant, v. Albert WHITMIRE, Personal Representative of the Estate of Bobby Joe Whitmire, Deceased, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

78 P.3d 556

2003 OK CIV APP 87

Rita Jo WHITMIRE, Plaintiff/Appellant, v. Albert WHITMIRE, Personal Representative of the Estate of Bobby Joe Whitmire, Deceased,¹ Defendant/Appellee.

No. 97,344.

Court of Civil Appeals of Oklahoma, Division No. 3.

June 20, 2003.

Certiorari Denied October 6, 2003.

Thomas W. Condit, Fourth Scoufos, Law Offices of Harry Scoufos, P.C., Sallisaw, OK, for Plaintiff/Appellant.

Frank Sullivan, III, Michael A. Daffin, Sallisaw, OK, for Defendant/Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Opinion by KENNETH L. BUETTNER, Judge:

¶ 1 Plaintiff/Appellant Rita Jo Whitmire (Wife) appeals from the decree of divorce and property division. Bobby Joe Whitmire (Husband) died after the court announced in court that the parties were divorced and drafted the property division, but before the filing of the journal entry. Defendant/Appellee Albert Whitmire,² Personal Representative of the Estate of Bobby Joe Whitmire, Deceased ("Representative"), was substituted as a party after Husband's death. Wife argues that the trial court lost jurisdiction over the matter when Husband died before the divorce decree was filed. Representative asserts that the trial court retained jurisdiction to enter the decree, with Representative substituted as a party, because the divorce was pronounced before Husband's death. Because Husband died before the entry of the final decree of divorce, the trial court was without jurisdiction to later enter the final decree divorcing the parties. We therefore vacate the decree.

¶ 2 Husband and Wife were married July 15, 1981. No children were born of the marriage.³ Wife filed a petition for separate maintenance December 8, 1999. Husband filed his answer and counterclaim for divorce January 21, 2000. Wife filed her amended petition February 26, 2001. Wife added Whitmire Construction, Inc.⁴, as a party and sought divorce from Husband.

¶ 3 Trial was held September 7, 2001. Husband and Wife were present at trial along with their attorneys. During the trial, Husband testified that he had been diagnosed with cancer about two years before and that he was no longer receiving treatment for it. At the conclusion of the trial, Husband's counsel informed the court that Husband was terminally ill and asked for a quick resolution to the case. The trial court informed the parties that it had heard enough evidence, but that it remained concerned about the value of the marital home and 99 acres of land attached to the house. The court ordered an appraisal of that property. The court and the parties' counsel discussed the issue of Husband's health and the court stated that it ordered the parties divorced that day, with the division of property reserved until receipt of the appraisal. Counsel for Husband indicated he would prepare a partial decree of divorce, reserving all other issues.

¶ 4 Counsel for Husband prepared the partial decree and sent it to counsel for Wife, who took no action. The trial court wrote a letter to the parties' counsel dated October 17, 2001, which contained the trial court's property division order.⁵ Husband died October 18, 2001. The property division letter was mailed October 19, 2001, and was filed October 23, 2001.

¶ 5 Wife filed her Motion to Dismiss October 24, 2001. Wife argued that a divorce proceeding terminates on the death of either party before the entry of a final decree, and that the trial court's announcement in court that the parties were divorced did not amount to a final decree of divorce. Wife also argued there was no required proof presented at trial to support granting a divorce. Hearing on the Motion to Dismiss was held November 5, 2001. Wife restated her argument that when one of the parties dies before the entry of a final decree of divorce, the divorce action abates. Wife also asserted that since Husband had died, his counsel had no party to represent and that if the court allowed the entry of a decree, Wife would have no person against whom to make an appeal.

¶ 6 Husband's counsel responded that he was prepared to substitute the executor of Husband's estate in place of Husband. He also argued that there had indeed been evidence presented which would support the granting of a divorce. Husband's counsel also argued that Wife's counsel was at fault for failing to agree to the partial decree of divorce before Husband's death. Counsel for Husband noted that the trial court had prepared the letter outlining the property division award the day before Husband died. He argued that the court had granted the divorce and divided the property before Husband's death, so that there was no remaining pending proceeding to abate at the time of Husband's death.

¶ 7 The trial court overruled the Motion to Dismiss. Representative was substituted as a party in an order filed November 29, 2001.⁶ The decree of divorce was filed January 11, 2002. Wife now appeals. Wife argues first that the trial court lacked jurisdiction to proceed following Husband's death.⁷

¶ 8 It has long been held that when one of the parties to a divorce dies during the proceedings, the trial court loses jurisdiction and the action abates. Swick v. Swick, 1993 OK 151, 864 P.2d 819; Mabry v. Baird, 1950 OK 132, 219 P.2d 234, 203 Okla. 212. The issue is whether a final judgment had been rendered before Husband's death.

¶ 9 Wife asserts that the trial court's oral pronouncement that the parties were divorced was not a final judgment because it was not filed as a written decree. Wife relies on 12 O.S.2001 § 696.2(D), which states:

The filing with the court clerk of a written judgment, decree or appealable order, prepared in conformance with Section 696.3 of this title and signed by the court, shall be a jurisdictional prerequisite to the commencement of an appeal. The following shall not constitute a judgment, decree or appealable order: A minute entry; verdict; informal statement of the proceedings and relief awarded, including but not limited to, a letter to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order.

The plain language of this subsection appears to support Wife's argument. This court has relied on this section to find that a trial court lost jurisdiction to enter a final decree of divorce after the death of one spouse. In Marzette v. Marzette, 1994 OK CIV APP 88, 882 P.2d 578, the court announced at trial that a divorce had been granted in an earlier hearing and that the trial was continued for hearing evidence on the property division issues. The husband died a few days later. After the husband's death, the trial court filed a minute order, which was dated with the day the divorce had been pronounced in the earlier hearing. The decree was filed nearly a year later and provided that the divorce had been entered the date it was announced in court. The wife then challenged the trial court's jurisdiction to enter the decree after the husband's death. On appeal, the court explained that until January 1, 1991, a judgment was final for purposes of appeal at the time of the pronouncement by the trial court, under 12 O.S.1981 § 990. Id. at 579. The court noted that 12 O.S.1991 § 990A provided that appeal time began to run from the date a judgment or appealable order is filed. Id. In Marzette the court concluded that a decree must be filed to trigger the appeal time and that, accordingly, there was no final, appealable order filed before the husband's death and the trial court lost jurisdiction to enter the decree after the death of a party. Id. at 580.

¶ 10 Representative argues however, that 12 O.S.2001 § 696.2(E) requires a different result. That subsection provides, in part:

A judgment, decree or appealable order, whether interlocutory or final, shall not be enforceable in whole or in part unless or until it is signed by the court and filed; except that the adjudication of any issue shall be enforceable when pronounced by the court in the following actions: divorce;. . . . The time for appeal shall not begin to run until a written judgment, decree or appealable order, prepared in conformance with Section 696.3 of this title, is filed with the court clerk, regardless of whether the judgment, decree, or appealable order is effective when pronounced or when it is filed.

Representative argues that this section conclusively establishes that a divorce is effective at the time it is pronounced by the court rather than when a decree is filed. Historically it has been held that a divorce is rendered at the time it is announced from the bench.

¶ 11 In Mabry, supra, the court conclusively established that the divorce judgment was rendered and final at the time it was announced from the bench. At the close of trial, the court "rendered judgment granting the plaintiff a divorce and dividing the property" in a minute entry, which indicated that a journal entry would follow and also indicated the matter was continued for determination of attorney fees. Almost a month later, the wife filed a motion to clarify the property division award. Before the hearing on the motion, the husband died. The wife then filed a motion seeking an order that no judgment had been rendered before the husband's death, or an order vacating any judgment entered, based on wife's assertion that the divorce proceeding abated on the husband's death. The husband's heirs then sought to intervene, which was granted. The trial court issued an order stating that the judgment was rendered on the date of trial. The trial court then set the matter for a later hearing for final settlement. At that hearing, the trial court heard evidence on the property division and attorney fees issues. The trial court found that the minute entry was a final judgment and labeled the later order clarifying the decree an order nunc pro tunc. The Supreme Court agreed that the trial court had intended to divorce the parties at the...