Woods v. Woods

ENTRY_ORDER.92-456; 161 Vt. 627; 641 A.2d 363

[Filed 18-Feb-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-456

                               JUNE TERM, 1993


 Norman J. Woods                   }          APPEALED FROM:
 Estate of Norman Woods,           }
 Deborah Thomas, Administratrix    }
                                   }
      v.                           }          Essex Family Court
                                   }
                                   }
 Aprel Ann Woods                   }          DOCKET NO. S22-90-EF


              In the above entitled cause the Clerk will enter:

      The sole issue in this case is whether the death of a party to a
 divorce action abates the action when the death occurs after the divorce
 decree has been issued, but before the nisi period has expired.  Deborah
 Thomas, administratrix of the estate of Norman Woods, appeals from the
 family court's orders vacating the decree and dismissing the action.  The
 administratrix also appeals the denial of her motion to reopen the decree to
 revise the nisi period.

      These issues were recently resolved in Ladd v. Ladd, No. 92-108 (Vt.
 Jan. 14, 1994), wherein we held that the husband's death within the nisi
 period abated the parties' divorce, but did not terminate a separation
 agreement, which was intended by the parties to stand independent of the
 divorce decree.  Id., slip op. at 8-9.  Here, there is no independent
 separation agreement, and we can discern no reason to differentiate this
 case from Ladd.  Accordingly, we affirm the decisions of the trial court.

      Affirmed.

------------------------------------------------------------------------------
                           Dissenting



      MORSE, J., dissenting.   What was feared -- that an ancient rule
 stripped of its purpose over time would visit misfortune upon a hapless
 litigant -- was avoided in Ladd v. Ladd, No. 92-108 (Vt. Jan. 14, 1994), by
 resort to the law of contracts.  Here, the divorcing parties contested the
 division of their marital property and the family court decided the issue.
 Why the law of contracts saved the day in Ladd and some analogous doctrine
 of common sense does not save the day here is as senseless as the ancient
 rule invoked in the first place.  Id., slip op. at 4-5 (Morse, J.,
 dissenting).

      It seems to me that the trial court's judgment dividing property in a
 divorce has as much power to dispel the black magic created when death pre-
 cedes the running of the nisi period as a stipulation dividing the property.
 Neither party appealed after the issuance of the trial court's final order.
 The Court in this case does not even address why there is a meaningful
 distinction between a stipulation of the parties and an acceptance of the
 court's final order by failing to appeal.

      The Court, I presume, trusts that the legislature will repeal this
 odious effect of the nisi decree upon the assumption that the legislature
 created it.  What the Court ignores, however, is that the unfortunate gloss
 was not the legislature's, but the Court's.  Id., slip op. at 3-4
 (discussing the origin of the problem, In re Hanrahan's Will, 109 Vt. 108,
 128 (1937)).  Since this Court created the problem, the Court should fix it.

      I would affirm.  Justice Johnson joins in this dissent.




                                      BY THE COURT:


 Dissenting:                          _______________________________________
                                      Frederic W. Allen, Chief Justice


 ____________________________________ _______________________________________
 James L. Morse, Associate Justice    Ernest W. Gibson III, Associate Justice


 ____________________________________ _______________________________________
 Denise R. Johnson, Associate Justice John A. Dooley, Associate Justice



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