Mallory v. Mallory (55 Cal. App. 2d 1165, 1997)

Opinion

DIBIASO, J.

We hold that the trial court in a marital dissolution action is empowered to enter a judgment nunc pro tunc with respect to all issues, including marital status, submitted to the court for decision prior to the death of a party to the proceeding, notwithstanding the general rule that such a death abates a cause of action for termination of status.

Procedural History

On October 25, 1985, respondent Iva Jean Mallory (Iva) filed a petition for dissolution of her 11-year marriage to Herbert Dean Mallory (Herbert). The petition asked the superior court to end the marriage of the parties, confirm their separate properties, and divide their community property. Herbert filed his response to the petition on November 25, 1985; he asked for dissolution of the marriage and for the resolution of property issues.

On October 29, 1987, trial of the action commenced. The last of the written arguments of the parties was filed not later than January 5, 1988. The case was submitted for decision on that date.

On April 25, 1988, at 8:50 a.m., Herbert was found dead in his home. At 3 p.m. on the same day, the trial court entered a minute order dissolving the marriage and deciding the property issues. Notice of the ruling was given by the clerk of the court on April 26, 1988.

On June 7, 1988, Herbert’s former lawyer and Iva’s attorney stipulated in writing that (1) the trial court’s jurisdiction to issue a decision or a judgment terminated upon the death of Herbert and (2) the trial court’s minute order of April 25, 1988, was “null and void.”

Appellant Dan Mallory is the executor named in Herbert’s will. On July 7, 1994, appellant filed a motion to substitute himself into the dissolution action as the real party in interest, to set aside the stipulation, to confirm the findings and order of the trial court, and to enter a judgment nunc pro tunc as of a date prior to Herbert’s death. Iva apparently opposed the motion, although her opposition papers are not a part of our record.

After hearing and argument, the trial court entered a minute order on August 18, 1994, which (1) substituted appellant in place of Herbert in the action; (2) set aside the June 7, 1988, stipulation on the ground that Herbert’s former attorney had no authority to execute it; (3) denied appellant’s request for entry of judgment nunc pro tunc; and (4) directed that a judgment conforming to the trial court’s April 25, 1988, minute order be entered as of August 18, 1994. The judgment was filed on August 18, 1994, and entered on September 7, 1994. It provided in part that the marriage of Herbert and Iva was dissolved as of August 18, 1994.

On November 18, 1994, Iva moved for an order setting aside the trial court’s August 18, 1994, order and the judgment entered on September 7, 1994, on the ground the judgment was void. Appellant opposed the motion and noticed his own countermotion for an order reentering the judgment nunc pro tunc as of a date before Herbert’s death. The two motions were argued and submitted on February 23, 1995.

On March 3, 1995, the trial court filed a minute order which granted Iva’s motion to set aside the September 7, 1994, judgment and denied appellant’s motion to enter the judgment nunc pro tunc. This appeal is taken from the trial court’s formal order, entered on October 25, 1995, incorporating the minute order rulings.

Discussion

I. Appealable Order

II. Merits

A. Introduction

Appellant contends the trial court erred by granting Iva’s motion to vacate the September 7,1994, judgment and denying his motion to enter that judgment nunc pro tunc as of a date prior to Herbert’s Appellant relies principally upon section 669 of the Code of Civil Procedure and section 2346 of the Family Code.

Iva counters that the 1988 judgment was void, and thus properly vacated, because the trial court lost jurisdiction over the action at the moment Herbert died, several hours before the trial court entered its minute order decision. She cites the general rule that an action for marital dissolution abates at the death of a party (In re Marriage of Williams (1980) 101 Cal.App.3d 507, 510 [161 Cal.Rptr. 808]). She also relies on the notion, found in a number of Court of Appeal opinions decided during the past 30 or so years, that “[u]pon the death of a party to a marriage dissolution or divorce proceeding, the court retains the power to enter judgment in conformity with matters adjudicated before the death[, but] it can make no further adjudication of issues.” (Id. at p. 511, italics added.) As we read her argument, Iva assumes the word “adjudicated” in this statement means some on-the-record expression by the trial court of a decision to rule in a particular way in the case.

B. Entry of Judgment

Section 669 reads in relevant part: “If a party dies after trial and submission of the case to a judge sitting without a jury for decision . . . and before judgment, the court may nevertheless render judgment thereon.”

Section 669 was enacted in 1872. Until 1965, it provided that if a party died “after a . . . decision” but before judgment, the trial court could still render judgment. (Kellogg v. Asbestos Corp. Ltd. (1996) 41 Cal.App.4th 1397, 1404 [49 Cal.Rptr.2d 256].) In 1965, the statute was amended to substantially its present form. (Stats. 1965, ch. 1636, § 1, p. 3730.) “The policy behind section 669 was that if the parties had done everything they could to put the case in a posture where it was ready for final rendition of judgment, a court delay should not be used to prejudice the parties.” (Kellogg v. Asbestos Corp. Ltd., supra, 41 Cal.App.4th at pp. 1404-1405.)

The language of the statute is unambiguous. The death of a party does not deprive the trial court of the power to enter a judgment so long as the case was submitted for decision before the party died. A case is “submitted” on the date when “either of the following first occurs: (1) . . . the court orders the matter submitted; or (2) . . . the final paper is required to be filed or . . . argument is heard, whichever is later." (Cal. Rules of Court, rule 825(a); Social Service Union v. County of Monterey (1989) 208 Cal.App.3d 676, 680 [256 Cal.Rptr. 325].)

Section 669 applies to marital dissolution actions. The “rules of practice and procedure applicable to civil actions generally apply to, and constitute the rules of practice and procedure in,” family law proceedings, “[e]xcept to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules." (Fam. Code, § 210.) We have not found any statute or rule which puts any part of a dissolution action, including the issue of the parties’ marital status, beyond the reach of section 669. In In re Marriage of Shayman (1973) 35 Cal.App.3d 648, 651-652 [111 Cal.Rptr. 11], the court assumed section 669 applied to marital dissolution actions.

Furthermore, section 669 is not the superior court’s only source of authority to enter judgment after the death of a party to a pending action. The Supreme Court held as early as 1895 that a trial court has the independent, inherent power to make findings and enter judgment when a party dies after submission of the case, and to do so nunc pro tunc as of a date before the death. In Fox v. Hale & Norcross S. M. Co. (1895) 108 Cal. 478 [41 P. 328], one of the defendants died after the evidentiary and argument phases had been completed, and after the trial court had announced its conclusions and directed the preparation of findings and a judgment, but before the trial court had settled and entered its findings. The Supreme Court upheld the trial court’s order that the findings and judgment adopted after the defendant’s death be entered nunc pro tunc as of a date prior to the death. (Id. at p: 482.)

Fox was reaffirmed in Norton v. City of Pomona (1935) 5 Cal.2d 54, 57-58 [53 P.2d 952], a negligence case involving the collision of an automobile with a power pole. The action was tried by the court without a jury. (Ibid.) The plaintiff died after all the evidence and briefs had been submitted and the trial court had entered a minute order expressing its intention to enter judgment in favor of the defendant. Following the plaintiff’s death, the trial court made formal findings of fact and conclusions of law and ordered them filed nunc pro tunc as of the date of the minute order. (Id. at p. 57.) The Supreme Court, relying upon Fox v. Hale & Norcross S. M. Co., supra, 108 Cal. 478, and Leavitt v. Gibson (1935) 3 Cal.2d 90 [43 P.2d 1091], approved the trial court’s actions. (5 Cal.2d at p. 63.)

In both Fox and Norton the trial court had disclosed, before the party died, the identity of the litigant in whose favor the court intended to rule. Nevertheless, the announcement of a decision, even a tentative one, is not critical to the trial court’s inherent power to render judgment notwithstanding the death of a party. In Leavitt v. Gibson, supra, 3 Cal.2d 90, one of the authorities relied upon by the Norton court, a defendant died before the case was formally submitted. However, all the evidence had been heard and both sides had rested. The plaintiff’s opening brief and the defendants’ reply brief, but not the plaintiff’s closing brief, had been filed and served. (Leavitt, supra, 3 Cal.2d at p. 105.) The trial court nevertheless went ahead and made findings of fact and conclusions of law and ordered them to be filed nunc pro tunc as of the day after the close of the evidentiary phase of the trial. (Id. at p. 94.)

The Supreme Court affirmed. It did not mention that section 669 then authorized entry of judgment only if the party died “after a . . . decision.” Comparing the facts in Fox with the facts before it, the Leavitt court concluded: “ ‘On the day of [the defendant’s] death the court was in a position to have ordered the case submitted although it had not actually made such order. The bill of exceptions does not show that any stipulation or order for extending time for such reply brief had been made. ... In view of the facts thus shown by the record we have reached the conclusion that there is no substantial difference between the situation presented by this case with respect to the question now under consideration and that presented in [Fox and In re Estate of Pillsbury (1917) 175 Cal. 454 (166 P. 11,3 A.L.R. 1396)] to which we have referred. The delay which had occurred (at the time of [the defendant’s] death) may well have been caused by “the intricacy of the questions involved”, as by any cause attributable to the laches of the parties. So, in relation to the right of the trial court to have its decision filed as of [the day after the evidence was presented], we think that such right should be upheld, and that “the principle upon which its action is to be sustained is that justice may be done between the parties”.’ ” (Leavitt v. Gibson, supra, 3 Cal.2d at p. 105; see also Collison v. Thomas (1961) 55 Cal.2d 490, 495 [11 Cal.Rptr. 555, 360 P.2d 51]; Williamson v. Plant Insulation Co. (1944) 23 Cal.App.4th 1406, 1417 [28 Cal.Rptr.2d 751].)

A recent reference to Fox, Norton, and section 669 appears in Kellogg v. Asbestos Corp. Ltd., supra, 41 Cal.App.4th at pages 1404-1405. The Court of Appeal in Kellogg held it was proper for the trial court to enter judgment in a negligence action even though the plaintiff died five days after the case had been submitted for decision but before the trial court had announced a tentative decision. {Id. at pp. 1401-1402, 1404.)

Subsequent Supreme Court opinions do not undercut Fox, Norton or Leavitt, or require us to impart a meaning to the current version of section 669 inconsistent with its literal language. The latest Supreme Court decision involving the death of party to a marital dissolution action is In re Marriage of Hilke (1992) 4 Cal.4th 215 [14 Cal.Rptr.2d 371, 841 P.2d 891]. In Hilke, one of the spouses died after entry of a stipulated order bifurcating the proceeding, terminating the parties’ marital status, and reserving jurisdiction over all other issues. Thereafter, the trial court, exercising its reserved jurisdiction, applied the presumption in former Civil Code section 4800.1 and found that certain real property held by the parties in joint tenancy was community property. The Court of Appeal reversed, “reasoning that the wife’s death intervened before that statute could be applied, so that the husband’s right of survivorship as a joint tenant prevailed.” (4 Cal.4th at p. 218.)

The Supreme Court reversed the Court of Appeal, and stated at one point in its opinion that “[t]he death of one of the spouses abates a cause of action for dissolution, but does not deprive the court of its retained jurisdiction to determine collateral property rights if the court has previously rendered judgment dissolving the marriage.” (In re Marriage of Hilke, supra, 4 Cal.4th at p. 220.) The Supreme Court cited two cases for this proposition, Mc-Clenny v. Superior Court (1964) 62 Cal.2d 140, 144 [41 Cal.Rptr. 460, 396 P.2d 916], and Kinsler v. Superior Court (1981) 121 Cal.App.3d 808 [175 Cal.Rptr. 564]. The Supreme Court also distinguished Estate of Blair (1988) 199 Cal.App.3d 161 [244 Cal.Rptr. 627], where the presumption of section 4800.1 was not applied, because in Blair “. . . the wife died before the entry of any judgment respecting the parties’ marital status.” (Hilke at p. 221, italics in original.)

We do not read Hilke as authority for the proposition that the death of a party to a marital dissolution action deprives the trial court of the power to enter judgment even though the issues, including marital status, were submitted before the party died. Neither section 669 nor the trial court’s inherent power, as described in Fox, Norton and Leavitt, was in issue in Hilke, and none of the pertinent opinions referred to in Hilke—McClenny, Kinsler and Blair—support a withdrawal from Fox, Norton or Leavitt.

In McClenny v. Superior Court, supra, 62 Cal.2d at page 142, an interlocutory judgment granted the wife a divorce on the basis of extreme cruelty, entitling her to more than one-half the community property. {Id. at p. 143.) However, the wife died before the property was divided. The Supreme Court held that the wife’s death did not divest the trial court of jurisdiction to enforce the property rights “adjudicated” by the interlocutory decree. {Id. at pp. 144-146.) In part, the Supreme Court said: “In the instant situation the death of one of the spouses occurred in the interval between the rendition of the interlocutory decree and the enforcement of the property rights adjudicated in that decree; the death intervened before the court had allocated the community property of the parties. [