DEATH OF PARTY ON DIVORCE: RHODES V. PEDERSON (COA 7/6/2007)

RHODES V. PEDERSON
FAMILY LAW:  ORDER ENTERED AFTER DEATH OF PARTY
2006-CA-000909
PUBLISHED: AFFIRMING
PANEL: KELLER PRESIDING; COMBS, BUCKINGHAM CONCUR
COUNTY: LYON
DATE RENDERED: 7/6/2007

Wife’s daughter, also the personal representative of Wife’s estate, appealed TC’s order dismissing Wife and Husband’s dissolution action and denying her motion to be substituted as a party and to revive the dissolution action. The primary issue was whether TC could and should have entered a nunc pro tunc decree dissolving the marriage after Wife’s death and allowing her portion of the marital property and past due temporary maintenance payments to go to her estate. CA affirmed.

In April 2004, TC awarded Wife $6000 per month in temporary maintenance and ordered the sale of Husband’s business and the parties’ vacation home, noting that both constituted marital property. About one month later, Wife died. A few days after her death, TC entered an order noting Wife’s reported death the previous day and abating all orders requiring future action, including the sale of the marital assets. Subsequently, TC found that the real party in interest was Wife’s estate and provided the estate thirty days to enter an appearance for any matters pertaining to the claims of or against the estate. In August, Daughter notified TC that she was the personal representative of Wife’s estate and that she intended to revive the action.

Daughter argued that TC had already decided to dissolve the parties’ marriage and divide the property, and therefore, it erred when it failed to revive the action, to enter a decree of dissolution, or to equally distribute the marital property. She urged the application of principles of equity to prevent an injustice from occurring. She also contended that Wife’s right to maintenance had vested at the time of her death, despite Husband’s attempt to terminate this obligation. However, she backed her contentions with only one 1897 case involving a bigamous marriage.

CA noted that all of the remaining case Kentucky law clearly stands for the proposition that a divorce case is strictly personal, and that all other issues attending thereto are terminated upon the death of either party. The law is clear that only after a decree in divorce is granted, or perhaps a written separation agreement has been entered into by the parties, can the court continue to litigate the attending issues, including the equitable distribution of property. Only after a decree in divorce is granted, and thereafter one of the parties dies, can the court continue with the equitable distribution of marital property. If, on the other hand, TC had entered a decree, or if the judicial function had terminated without the formal entry of a decree, the death of a spouse would not affect the matter. CA noted one unpublished case in which CA approved entry of a nunc pro tunc order, but in that case, TC had orally granted a decree but the death occurred before the written decree could be prepared and signed. In that case, CA noted that the entry of the nunc pro tunc decree was proper to give the court’s judicial act its proper meaning and effective date.

CA noted that there may remain other avenues of relief for Daughter, as existing orders for maintenance and property distribution may be pursued in a different forum. In essence, TC lost jurisdiction of the subject matter upon Wife’s death. CA provided that the nunc pro tunc rule may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.

By Michelle Eisenmenger Mapes with www.Louisvilledivorce.com

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