MARRIAGE OF LAWRENCE
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140. 84-120 I N THE S U P R E b E COURT O F THE STATE O F MONTANA 1984 I N RE THE MARRIAGE O F CLARENCE E. LAWRENCE, P e t i t i o n e r and A p p e l l a n t , and ALP4A K . LAWRENCE, R e s p o n d e n t and R e s p o n d e n t . APPEAL FROM: D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of C a r t e r , T h e H o n o r a b l e A l f r e d B. C o a t e , J u d g e p r e s i d i n g . COUNSEL OF RECORD: For A p p e l l a n t : L u c a s & Monaghan; G a r y L. Day, M i l e s C i t y , Montana For Respondent: R i c h a r d 0. H a r k i n s , E k a l a k a , J 4 o n t a n a Ira E a k i n , Baker, Montana S u b m i t t e d on B r i e f s : Decided: Filed: SkP : 3 Clerk - - - July 3, 1984 S e p t e m b e r 13, 1994 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Lawrence appeals from ail The Estate of Clarence E. order of the District District, Carter Court of the County, dismissing dissolution of marriage. Sixteenth his Judicial petition for We affirm the District Court's decision. The facts of this case are not in dispute. E. Lawrence, the respondent, were married Fourche, South in Dakota. residents of Montana. Alma K. September appellant, of and Both parties Clarence Lawrence, 1935 were in the Belle long-time During the course of the marriage the parties accumulated real and personal property, including a 3,500 acre ranch located in Montana and Wyoming. On March 22, 1983, the appellant filed a petition for dissolution of the marriage. A hearing on the petition for dissolution was held on August 22, 1983. unable to attend because of illness. The appellant was However, he submitted an affidavit to the court indicatinq that he wished the matter to proceed, and outlined the circumstances supporting his position in favor of dissolution. Following the presentation of evidence, including oral testimony of the respondent, wife, the court took the matter under advisement without entering any judgment, either oral or written. Within minutes after the hearing concluded, the appellant died in a South Dakota hospital. The appellant left a will which included the following provision: "If my wife, ALMA K. LAWRENCE, survives me and we are married at the time of my death, then I give to her so much of my net estate as Alma K. Lawrence would have the right to elect to take by virtue of t h e laws of t h e S t a t e of o t h e r S t a t e which l a w s death. I n t h e e v e n t my m e , then the portion she s h a l l be d i s t r i b u t e d i n A r t i c l e I11 b e l o w . " On August 2 4 , Montana, o r a n y may a p p l y a t my wife predeceases would h a v e t a k e n accordance with 1983, t h e respondent f i l e d a motion t o d i s m i s s t h e a c t i o n b e c a u s e o f a p p e l l a n t ' s d e a t h , w h i c h was g r a n t e d i n a n o r d e r d a t e d J a n u a r y 11, 1 9 8 4 . In t h a t order, t h e D i s t r i c t C o u r t made i t s f i n d i n g s o f f a c t and c o n c l u s i o n s of l a w , i n c l u d i n g t h e f o l l o w i n g f i n d i n g s : "5. T h a t t h e r e was s e r i o u s m a r i t a l d i s c o r d which a d v e r s e l y a f f e c t e d o n e o r b o t h of t h e p a r t i e s t o w a r d s t h e m a r r i a g e and t h e p a r t i e s h a v e l i v e d s e p a r a t e and a p a r t s i n c e 1980; " 6 . T h a t t h e r e was no r e a s o n a b l e p r o s p e c t of r e c o n c i l i a t i o n . " The i s s u e on a p p e a l is w h e t h e r t h e d e a t h o f a p a r t y t o a dissolution abates proceeding action, the in prior a to case the where e n t r y of a significant decree property r i g h t s w i l l be a f f e c t e d by t h e d e c r e e , o r l a c k t h e r e o f . The a p p e l l a n t ' s c o u n s e l a r g u e s t h a t t h e d e a t h o f the appellant following the d i s s o l u t i o n hearing should not abate the action, entered in writing. despite the the matter Appellant fact at that that maintains no time, judgment either that had been o r a l l y or because there in was s u f f i c i e n t e v i d e n c e on t h e r e c o r d t o p r o v e t h a t t h e m a r r i a g e was irretrievably dissolution hearing, broken at the conclusion of the t h e D i s t r i c t C o u r t s h o u l d be r e q u i r e d t o e n t e r a d e c r e e of d i s s o l u t i o n . The issue presented i m p r e s s i o n i n Montana. for However, review is one of the general rule in other j u r i s d i c t i o n s is c l e a r : "A c a u s e o f a c t i o n f o r d i v o r c e is p u r e l y t e r m i n a t e s on t h e p e r s o n a l , and . . . first d e a t h of e i t h e r s p o u s e ; and i f an a c t i o n f o r a d i v o r c e is commenced, and o n e o f the p a r t i e s d i e s t h e r e a f t e r , but before e n t r y of t h e f i n a l d e c r e e , t h e a c t i o n abates. The j u d i c i a l power i s e n d e d when a p a r t y d i e s b e f o r e t h e e n t r y of a decree. " 24 Arn.Jur.2d D i v o r c e and S e p a r a t i o n , s e c t i o n 176 ( 1 9 8 3 ) . .. See a l s o Annot., applies 1 5 8 A.L.R. e v e n when the 1205, 1206 ( 1 9 4 5 ) . d i s p o s i t i o n of This rule significant property r i g h t s w i l l be determined by t h e e n t r y of a d e c r e e , o r l a c k thereof. 634-35; Tiedman v. D a l y v. Tiedman ( M i c h . Daly (Utah 1975), 1 9 7 7 ) , 255 N.W.2d 533 L a r s o n v . L a r s o n (S.D. 1 9 7 5 ) , 235 N.W.2d The m o s t commonly cited P.2d 884, 632, 885-86; 9 0 6 , 909-10. rationale for the majority r u l e i s t h a t when a p a r t y t o a d i s s o l u t i o n a c t i o n d i e s p r i o r t o e n t r y of a d e c r e e , t h e m a r r i a g e is t e r m i n a t e d a s a m a t t e r of l a w , f o r t h e r e r e m a i n s n o t h i n g f o r t h e c o u r t t o d i s s o l v e . L a r s o n , s u p r a a t 909; T i e d m a n , s u p r a a t 6 3 4 ; I n r e M a r r i a g e of Shayman ( 1 9 7 3 ) , 1 1 C a l . R p t r . 1 is thus matters divested of 11, 1 3 . jurisdiction to The d i v o r c e c o u r t take any action on such a s p r o p e r t y d i s t r i b u t i o n which a r e i n c i d e n t a l t o t h e primary o b j e c t o f changing t h e s t a t u s of t h e p a r t i e s . Wood v. Parkerson (Colo. 1967), 430 P.2d 467, 468-69; L a r s o n , s u p r a a t 9 0 9 ; T i e d m a n , s u p r a a t 634-35. I n s u p p o r t of h i s p o s i t i o n , t h e a p p e l l a n t c i t e s Judson v. Anderson v. Deich ( 1 9 4 5 ) , 1 1 8 Flont. ( 1 9 5 8 ) , 1 3 6 Mont. c i r c u m s t a n c e s of b o t h of 1 0 6 , 1 6 5 P.2d 566, 323 P.2d 1 9 8 , and D e i c h 35. The f a c t u a l these cases are similar: one of t h e p a r t i e s t o a d i v o r c e d i e d a f t e r a f i n a l d e c r e e had b e e n entered, An and t h e judgment i s s u e on appea.1 was of the t r i a l court w a s appealed. whether the action a-bated f o r p u r p o s e o f a p p e a l upon t h e i n t e r v e n i n g d e a t h o f parties. W e ruled that where property the one of the interests are involved, an appeal in a divorce case does not abate upon the death of a party pending its determination. Judson, supra at 125, 165 P.2d at 207; Deich, supra at 577-78, 323 P.2d at 42. The circumstances of distinctly different from those the instant case are operating in Judson and Deich, where the marriage of the parties had already been dissolved by a judgment. We do not believe the holding in Judson and Deich should be extended to those cases where no divorce decree of any kind has been entered by the trial court. Instead, we adopt the majority rule and hold that an action to dissolution of marriage abates upon the death of either party prior to the entry of decree, and at that time the trial court loses jurisdiction to determine incidental issues such as the disposition of property rights involved in the marriage. The appellant dissolution must 40-4-104, MCA. be also entered contends in that a decree this case under section Section 40-4-104 states in pertinent part: "(1) The district court shall enter decree of dissolution of marriage if: a "(b) the court finds that the marriage is irretrievably broken, which findings shall be supported by evidence : " ( i ) that the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of this proceeding; or "(ii) that there is serious marital discord which adversely affects the attitude of one or both of the parties towards the mar r iage ; "(c) the conciliation Conciliation do not apply court finds that the provisions of the Montana Law and of 40-4-107 either or have been met;" of Appellant argues that the statutory language mandates entry of a decree findings. In conclusions of once this a case, judge has made however, the the required findings and the District Court were not issued until January of 1984, over four months after the death of the appellant. Following the appellant's death, the District Court lacked jurisdiction to enter a divorce decree properly granted the respondent's motion to dismiss. A £ firmed. Justice ,. / ' We concur: a d $ &&A Chief Justice and
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