Wesley v. Brown, 196 F.2d 859 (D.C. Cir. 1952)

In the District Court appellant filed a complaint for partition of real property, claiming an interest in the property by descent on the ground that her intestate mother was a tenant in common thereof at the time of her death. The property had been held by appellant's mother and father as tenants by the entirety during their marriage, but the mother had obtained a decree of absolute divorce from her husband. The decree did not expressly deal with the realty in question, and appellant's mother died five months and four days after the decree was signed. After the death of Mrs. Brown, the court, on motion of appellee, declared the divorce proceeding abated by reason of the death of one party before the effective date of the absolute divorce.¹ 

It is appellant's contention that the property rights of Mr. and Mrs. Brown were dissolved by operation of law²  at the time the final decree was signed and that thereupon her mother and father became tenants in common of the realty since under the practice in this jurisdiction there is no later "entry" of a final decree.

In Oliver v. Oliver, 1950, 87 U.S.App. D.C. 334, 185 F.2d 429, 431 this court dealt with the very question of finality of a divorce decree and ruled that Section 16-421 "* * * contemplates a provisional decree of divorce only, which cannot mature and become effective until lapse of the intervening time" and that therefore the parties do not cease to be married until after the period provided.

In that case the question of finality arose in considering the validity of a marriage entered into following a decree of divorce, but that determination of finality is nevertheless dispositive of the instant appeal. Consequently, we hold that the finality requisite to the operation of Section 16-409 had not been achieved at the time of Mrs. Brown's death, the divorce proceedings were properly declared abated, and summary judgment in the action to partition real property is

Affirmed.