‘Til Death Do Us Part

January 20, 2016 § 1 Comment

It should be pretty clear that one party’s death during pendency of a divorce proceeding puts a stop to the divorce and leaves the parties right where they were before the divorce action was filed.

What is less clear is what happens to the divorce when one party dies after trial but before a judgment is entered.

That scenario has actually been played out in appellate cases several times, as we shall see.

The most recent example is the case of McGrew v. McGrew, decided by the COA December 15, 2015.

A trial in the divorce case of Peggy and Charles McGrew was held on November 22, 2013. The chancellor ruled from the bench that Peggy was entitled to a divorce from Charles on the grounds of adultery and imprisonment. The chancellor also ordered that Peggy have use and possession of the former marital residence until Charles was released from prison, at which time it would be sold and the equity divided. The chancellor ordered that a judgment be prepared based on his oral rulings.

Peggy was dissatisfied with the ruling on the residence, however, and she filed a R59 motion on December 2, 2013. No judgment of divorce had been entered.

On March 25, 2014, following a hearing on the R59 motion, the judge directed Peggy’s attorney to prepare and present a judgment granting a divorce, based on the previous bench ruling, within ten days, but took the rehearing motion under advisement.

Charles died on June 10, 2014. No judgment of divorce had yet been entered. Peggy immediately filed to withdraw her divorce action. Charles’s attorney filed a motion contending that the bench ruling was final and binding, and that the equitable distribution should be enforced.

On July 18, 2014, the chancellor entered a judgment granting the divorce nunc pro tunc to November 22, 2013, including the terms adjudicated that day.

The COA reversed and rendered. The rationale by Judge Barnes is a lengthy quote by the standards of this blog, but it’s worth your attention:

¶16. Peggy argues the divorce action abated on Charles’s death, and the chancellor had no authority to enter the final judgment nunc pro tunc after Charles’s death.

¶17. Generally, a pure divorce action abates upon the death of one spouse prior to the final decree. Pittman v. Pittman, 375 So. 2d 415, 416 (Miss. 1979). Once a spouse dies, “there is then no status of marriage upon which the final decree of divorce may  operate.” Id. (quoting Caprita v. Caprita, 60 N.E.2d 483, 485 (Ohio 1945)). Our supreme court, quoting the American Law Reports, has stated:

It is well settled by practically all of the authorities that, upon the death of one of the parties to a purely divorce action, before the entry of a final decree therein, whether before or after the entry of an interlocutory decree or a decree nisi, the action abates with the consequence that the action may not be continued and no final decree of divorce may be entered thereafter, since the object sought to be accomplished by the final decree, that is, the dissolution of the marriage relation, is already accomplished by the prior death of one of the parties, and there is then no status of marriage upon which the final decree of divorce may operate. The result is that, notwithstanding the pending divorce action and the fact that a divorce might have been granted had no death occurred, the wife is regarded as the widow of the deceased husband, or the husband is regarded as the widower of the deceased wife, as the case may be. Id. (quoting 104 A.L.R. 654).

¶18. Like the request for a divorce, when one spouse dies, “all issues . . . incidental to the request for a divorce and the contest thereon . . . die[].” Id. at 417. This is consistent with the general rule that “[l]itigation is not to be carried on by or against any deceased person.” Billy G. Bridges & James W. Shelson, Griffith Mississippi Chancery Practice § 591 (2000). As explained in Griffith Mississippi Chancery Practice § 620:

A valid judgment cannot be rendered in favor of two persons, one of whom at the time is dead. Such a judgment is void. And likewise a judgment rendered against a defendant after his death is void if he was the sole defendant or was an indispensable party to the action, although the interlocutory or temporary judgment was rendered while he was alive.

¶19. If, however, all issues have been formally adjudicated prior to one spouse’s death, the entry of the divorce judgment postmortem may be permissible under limited circumstances. The rule in such a situation is as follows:

[I]f the facts justifying the entry of a decree were adjudicated during the lifetime of the parties to a divorce action, so that a decree was rendered or could or should have been rendered thereon immediately, but for some reason was not entered as such on the judgment record, the death of one of the parties to the action subsequently to the rendition thereof, but before it is in fact entered upon the record, does not prevent the entry of a decree nunc pro tunc to take effect as of a time prior to the death of the party. But if no such final adjudication was made during the lifetime of the parties, a decree nunc pro tunc may not be entered after the death of one of the parties, to take effect as of a prior date.

Thrash v. Thrash, 385 So. 2d 961, 962-63 (Miss. 1980) (internal citations omitted) (quoting 104 A.L.R. 654, 664 (1936)).

¶20. Here, the chancellor found that because he intended the bench ruling to be final, the entry of the nunc pro tunc order was permissible. Nunc pro tunc means “now for then.” White v. Smith, 645 So. 2d 875, 880 (Miss. 1994). A nunc pro tunc order is used to “supply omissions in the record of what had previously been done, and by mistake or neglect not entered.” Id. (quoting Green v. Myrick, 177 Miss. 778, 171 So. 774 (1937)). A judgment entered nunc pro tunc “normally does not refer to a new or fresh (de novo) decision, as when a decision is made after the death of a party, but relates to a ruling or action actually previously made or done but concerning which for some reason the record thereof is defective or omitted.” Id. (quoting Thrash, 385 So. 2d at 963). The entry of a nunc pro tunc order “does not itself have a retroactive effect[,] but it constitutes the later evidence of a prior effectual act.” Id. (quoting Thrash, 385 So. 2d at 963).

¶21. The chancellor relied on White in support of his decision that the entry of the nunc pro tunc order was permissible. In White, the wife, Johnnie White, filed a complaint for divorce from her husband, Luther White. Id. at 876. The parties later consented to an irreconcilable difference divorce. Id. at 879. A hearing was held, and the chancellor orally granted the divorce. Id. However, before the oral ruling was reduced to writing, Luther died. Id. at 877. Upon Luther’s death, Johnnie moved to dismiss the divorce action. The motion was denied. The chancellor then entered the divorce judgment nunc pro tunc to the date of the bench ruling. The supreme court found the nunc pro tunc judgment permissible, as all matters had been finally adjudicated prior to Luther’s death. Id. at 881. The supreme court reasoned:

[F]rom a technical standpoint, Luther died while married, since his death was prior to the entry of the decree. However, the record clearly indicates that all submitted issues had been litigated and ruled upon by the chancellor on [the date of the bench ruling]. Nothing more was to be accomplished in the interim between the ruling and formal filing of the judgment.

Id.; see also Thrash, 385 So. 2d at 964 (finding divorce judgment proper where all matters were resolved and the judgment was signed by the chancellor one day prior to the husband’s death, but the judgment was not filed by the clerk until one day after the husband’s death).

¶22. Although not discussed by the chancellor, we find it important to note a key distinction between this case and White. White involved a consent divorce, whereas Peggy sought a fault-based divorce. The parties in White had entered into an “irrevocable consent to divorce” prior to Luther’s death. White, 645 So. 2d at 879. Because the parties had signed the irrevocable consent to divorce, the parties were statutorily bound by this contractual agreement, and they were estopped from arguing otherwise. Id. Thus, there was no decision for the chancellor to make regarding the grant or denial of the divorce. Oral factual findings were made regarding the division of property not previously agreed upon. These findings were incorporated into the final judgment. However, it was undisputed these matters were adjudicated as of the date of the bench ruling. Id. at 881.

¶23. Because of this distinction, we find the chancellor’s reliance on White was misplaced. We agree with Peggy’s assertion that the facts here are analogous to those in Pittman, 375 So. 2d at 415, where no final adjudication was found. In Pittman, the wife, Ella Mae Pittman, died between the chancellor’s bench ruling and final divorce judgment. Id. at 415-16. Two weeks prior to her death, the chancellor sent a letter to both sides, setting out his findings and stating that a divorce would be granted in favor of Ella Mae. Id. He instructed the attorneys to prepare a judgment consistent with the letter. After negotiations, the attorneys agreed to the form of a final judgment and sent it to the chancellor. Id. at 416. The chancellor executed the judgment ten days after Ella Mae’s death. Id. The supreme court reversed, finding that the chancellor had no authority to enter the final judgment after Ella Mae’s death, because “all issues in the cause were incidental to the request for a divorce and the contest thereon, and the entire cause died with the complainant.” Id. at 417. In finding the action abated upon Ella Mae’s death, the supreme court stated:

The authorities are clear that the death of [a party] in the divorce action prior to the execution and entry of the final decree by the lower court ended the marriage of the parties and cancelled fully the bill of complaint for divorce and incidental property relief. This is so even though testimony had been heard in the cause and the court had issued what might be termed an “interlocutory order” in the form of a letter.

Id. at 416. The supreme court emphasized “that every decree is in the breast of the court until entered, and a decree has no validity until written out and signed by the chancellor.” Id. (quoting Orr v. Myers, 223 Miss. 856, 862, 79 So. 2d 277, 278 (1955)).

¶24. Although the chancellor in Pittman did not enter the judgment nunc pro tunc to a date prior to Ella Mae’s death, we find this of no consequence. The fact remains that the divorce was not finally adjudicated prior to Ella Mae’s death. A nunc pro tunc judgment is meant to supply omissions in the record, not to set forth a new or fresh decision. White, 645 So. 2d at 880. Thus, a nunc pro tunc judgment would not have been permissible.

¶25. Like Pittman, we find the record here does not support a finding of finality prior to Charles’s death. First, in his bench ruling, the chancellor left the record open for the parties to resolve certain property disputes, stating:

I want to give those things to each of the parties in accordance with its emotional value to either of the parties. . . . So y’all try [to] work those out in that manner so that I don’t have to try to do it myself after this trial is over. And if I have to reconvene the trial to deal with those, I will. But I don’t want the parties to have to get buried in that stuff. And we’ll get back to that.

. . . .

Now, I’m going to leave the record open for you all to divide those personal items.

¶26. Next, Peggy’s motion for reconsideration was not ruled upon during Charles’s lifetime. While the hearing on this motion occurred during Charles’s lifetime, on March 14, 2014, no oral ruling was made. Instead, at the conclusion of the arguments, the chancellor stated:

All right. . . . What I’m going to do is take that under advisement and I’ll give you a decision within 30 days. . . . If you want to submit any law, either side may do so within 10 days.

There is no indication that law was submitted, or that the chancellor reached a decision in thirty days. The next mention of the motion for reconsideration appears in the chancellor’s findings of fact and conclusion of law, which were not drafted or entered until after Charles’s death.

¶27. Also at the hearing on the motion for reconsideration, the following exchange took place regarding the lack of a final judgment:

[CHARLES’S COUNSEL]: . . . Because of Mr. Crosby’s filing this motion [for reconsideration], we have not yet supplied the Court with an order and I hope we’re not negligent in doing so.

THE COURT: Okay. Well, you probably are. It’s been awhile.

[CHARLES’S COUNSEL]: I was saying I might wait another 30 days if you’re giving something consideration.

THE COURT: I would rather see at least the form of the order — if I’m going to reconsider something, I would like to see what I’m reconsidering.

[PEGGY’S COUNSEL]: Yes, sir.

[CHARLES’S COUNSEL]: We’ll have it next week, Your Honor.


[PEGGY’S COUNSEL]: In the meantime, would it be appropriate if I gave you the divorce itself, the divorce of the parties, or should we wait?

THE COURT: No. I want to do it all at one time. The supreme court likes it better that way.

(Emphasis added).

¶28. Although Peggy’s counsel requested the chancellor to enter an order solely granting the divorce, the chancellor chose not to do so.[FN 2]

[Fn 2] Had the chancellor entered such an order of divorce, it would not have been “final” without a Mississippi Rule of Civil Procedure 54(b) certification. See M.W.F. v. D.D.F., 926 So. 2d 897, 899-900 (¶¶4-6) (Miss. 2006) (judgment of divorce not final where custody and division of assets not yet adjudicated).

Rather, the chancellor again left the matter open pending resolution of all issues. On March 25, 2014, the chancellor wrote the attorneys and requested that Peggy’s counsel submit a proposed final judgment consistent with the bench ruling. Both sides submitted proposed judgments. However, the judgments differed in (1) who was granted the divorce and upon what grounds, (2) who was awarded a generator that was wired into the marital home, and (3) the disposition of one of the vehicles. Because of the discrepancies, the chancellor ordered a transcript of the bench ruling. The transcript was received six days after Charles’s death, on June 16, 2014. The judgment was then drafted and entered on July 18, 2014.

¶29. Finally, although the judgment states it is consistent with the bench ruling, there are differences. For example, in the final judgment, Charles is awarded the 1992 Jeep Wrangler and Yamaha jet ski. However, in his bench ruling, the chancellor ordered these same vehicles sold and the proceeds divided. Adding to the inconsistency, these same two vehicles were awarded to Peggy pretrial, for her to liquidate and keep the proceeds. Also, there is no indication of an agreement regarding the disputed personal property, as ordered by the chancellor at the bench hearing. Although the chancellor states in his findings of fact and conclusions of law that all disputes were resolved, the divorce judgment does not reflect such a resolution. Rather, the divorce judgment states: “[T]he personal property in the home shall be divided . . . . If the parties cannot agree on a division of said personal property, then each party shall submit a list to the other party.”

¶30. Because all issues were not finally adjudicated prior to Charles’s death on June 10, 2014, the chancellor’s entry of the nunc pro tunc divorce judgment was improper. The chancellor had no authority to enter the divorce judgment. A chancellor may not  circumvent the general rule that “a decree rendered against a defendant after his death is void” by entering a judgment nunc pro tunc. Bridges & Shelson, Griffith Mississippi Chancery Practice § 620. Consequently, the divorce judgment is void. See Pittman, 375 So. 2d at 416-17. Consistent with the supreme court’s ruling in Pittman, we “reverse[] and render[] [this cause] without prejudice to the rights of any person affected by [Charles’s] death[.]” See id. at 417.

Don’t assume the lag-time between entry of the final judgment and the death was as long in the cited cases as it was in McGrew. In White, for instance, the trial was concluded mid-afternoon on Tuesday, and the final judgment was put in the mail to Johnnie’s lawyer that day (this was in the pre-email era). It was received by Johnnie’s lawyer (50 miles distant from Luther’s lawyer) on Thursday. Luther was admitted to the hospital on Friday, and he died the following Monday. That’s how fast things can spin out of control. And how do I know all this? White was my case.

More comments on McGrew tomorrow.

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