In re Marriage of Towle and LeGare , 56 Kan. App. 2d 857 ( 2019 )

No. 119,021
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
DANA TOWLE,
Appellant,
and
LOUISE LÈGARÈ,
Appellee.
(MATHIEU BONIN,
Substitute Appellee.)
SYLLABUS BY THE COURT
1.
At common law, all personal actions permanently abate upon the death of a sole
plaintiff or defendant.
2.
Kansas has altered the common law rule and whether a particular cause of action
survives the death of a party is to be determined by K.S.A. 60-1801. K.S.A. 60-1801
provides that in addition to the causes of action which survive at common law, causes of
action for mesne profits, personal injury, property damage, deceit or fraud, and wrongful
death also survive the death of a party.
3.
The law in Kansas has long recognized that a divorce action is purely personal and
ends on the death of either spouse.
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4.
A separate maintenance action is purely personal because it concerns the marriage
relation and, therefore, abates upon the death of either spouse.
5.
A judgment is effective only when a journal entry or judgment form is signed by
the judge and filed with the clerk of the district court.
6.
If the death of either spouse in a divorce or separate maintenance action occurs
before the filing of the journal entry, such death immediately terminates the action as the
district court loses jurisdiction and the parties' property settlement agreement, agreed to
as part of the divorce or separate maintenance action, becomes void.
Appeal from Wyandotte District Court, TIMOTHY L. DUPREE, judge. Opinion filed March 15,
2019. Reversed and remanded with directions.
Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, and
Stephanie L. Schutt, of Ritchie & Soper PC, of Liberty, Missouri, for appellant.
Amanda B. Kivett, of The Kivett Law Firm, LLC, of Kansas City, Missouri, for appellee and
substitute appellee.
Before BUSER, P.J., POWELL, J., and STUTZMAN, S.J.
POWELL, J.: Dana Raymond Towle petitioned the Wyandotte County District
Court for separate maintenance (more commonly known as a legal separation) from his
wife, Louise LèGarè. After the case had been pending for several months, Louise was
diagnosed with terminal cancer. Ultimately, the parties were apparently able to reach a
property settlement agreement that was placed on the record and approved by the district
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court. The court, anticipating Louise's pending demise, filled out and signed a docket
sheet approving the parties' property settlement agreement and directed Louise's counsel
to prepare the journal entry. Unfortunately, several months passed and Louise died
without her counsel having filed the journal entry. Dana then sought dismissal of the case
on the grounds that Louise's death had abated the action and divested the court of
jurisdiction. The district court denied Dana's motion to dismiss and substituted Louise's
son, Mathieu Bonin, for Louise even though he was not the executor of Louise's estate. It
ordered Mathieu, now represented by Louise's counsel, to submit a journal entry within
72 hours. Several more months went by without the journal entry being filed. Instead of
filing a journal entry, Mathieu sought enforcement of the property settlement agreement,
claiming Dana had breached it. The district court found that the parties had sufficiently
memorialized their agreement and granted Mathieu's motion.
On appeal, Dana principally claims the district court erred by not dismissing the
case as the action abated at the time of Louise's death. As a matter of first impression and
for reasons more fully explained below, we agree with Dana that his petition for separate
maintenance is a personal one which abated upon Louise's death. Because the journal
entry memorializing the parties' property settlement agreement had not been approved by
the district court and filed with the clerk prior to Louise's death, the district court erred in
not dismissing the case. Accordingly, we reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background of the Parties
Dana and Louise were married in Missouri in the late 1980s. Louise was originally
from Montreal, Quebec, where her son from a previous relationship, Mathieu, resides.
During the marriage, the parties accumulated significant assets including real estate in
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Kansas, Missouri, and Quebec and surgical centers as part of Dana's medical profession
in Kansas. No children were born of the marriage.
B. Initiation of the Separate Maintenance Action and Dana's Voluntary Dismissal
In November 2015, Dana filed a petition for separate maintenance in Wyandotte
County District Court, alleging he was a resident of Edwardsville, Kansas. Louise filed
an answer, admitting she had lived in Edwardsville for 90 days but denying that Dana had
resided there. Louise asserted no counterclaims in her answer.
In May 2016, Dana and Louise agreed to a temporary order, which the district
court approved, allowing the parties to live separately during the action. Among other
provisions, the order provided that Dana would continue to pay Louise's living expenses,
Louise would continue to possess the parties' Edwardsville residence, and no party would
be dispossessed of any property without a joint written agreement or court approval.
Thereafter, the parties worked with a certified public accountant, financial mediator, and
valuation analyst to develop a comprehensive valuation and division of the parties' assets
and debts. As of October 2016, the parties were able to develop a comprehensive list of
their assets and debts, along with their agreed values. This understanding was
memorialized in a one-page document known as Exhibit 101.
In June 2016, Louise was diagnosed with stage 4 metastatic lung cancer. Although
Dana learned of Louise's illness in August 2016, Louise did not inform Dana of the
details surrounding the diagnosis until October 2016.
On October 26, 2016, Dana's counsel filed a motion to dismiss his petition for
separate maintenance without prejudice and attached a proposed order. However, because
the order's title included the word "proposed," the district court clerk rejected the filing
and directed Dana's counsel to correct it. The next day, Dana's counsel refiled the now
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correctly titled order but failed to refile the motion. Dana's counsel later told the district
court that the clerk's staff only told him to refile the proposed order and not the motion
itself. As the district judge stated, "[E]ither [Dana's counsel] misunderstood the
instruction or [was] given the wrong instruction, whichever way, but . . . there was no
motion [to dismiss] filed." No such motion to dismiss appears in the record on appeal.
Louise's counsel stated that she never received notice of such a motion.
Nevertheless, it appears there was such a motion before the district court at some
point because on October 27, 2016, it granted Dana's motion to dismiss without prejudice
and, on October 31, 2016, the district judge signed a docket entry dismissing the case.
Louise's counsel admitted that these two orders were entered into the e-filing system and
served on Louise; her counsel later claimed that she believed the matter was dismissed in
error. After dismissal of this case, Dana filed for divorce in Jackson County, Missouri.
C. Setting Aside the Dismissal and Louise Filing a Counterpetition
On March 2, 2017—122 days after the apparent dismissal of the case—Louise
sought to set aside the dismissal order under K.S.A. 2016 Supp. 60-260(b). She argued
the order violated K.S.A. 2016 Supp. 60-241(a) and K.S.A. 2016 Supp. 60-207(b)
because Dana had not formally filed a motion to dismiss. Louise asserted that the order
had to be set aside as the result of surprise, excusable neglect, misrepresentation, or
misconduct by an opposing party and that Dana's dismissal was a ruse to unjustly enrich
himself.
"[Dana] misrepresented his intentions to [Louise] knowing that [her] medical condition
prevents [her] from easily participating in the litigation process, knowing that a delay in
the entry of the final division of assets herein and [Louise's] untimely death would allow
[Dana] to receive all of the parties' assets herein thereby unjustly enriching [him], and
knowing that due to the advanced nature of [Louise's] terminal cancer [she] cannot file a
new Petition and wait the statutorily required time for entry of a Decree. . . . It is in the
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interest of substantial justice that this Court set aside its Dismissal Order entered herein
as it is necessary for [Louise] to complete the division of the parties' assets and return to
her son prior to her death and as without this Court setting aside its Dismissal Petitioner
shall be unjustly enriched by his misrepresentations to [Louise] and the Court."
In support of her assertions, Louise attached to her motion a three-week-old letter
from her physician, which attested to her condition and stated she "desire[d] to return to
her family and home in Montreal, Canada for her remaining months of life" and "it is of
the most urgent necessity that she gets her divorce settled so that she has funds to move,
get medical care, and live with her family that can support and care for her." Dana
opposed Louise's request to set aside the dismissal. Although he denied many of her
allegations, he did admit that the motion to dismiss was not correctly filed. Before the
district court heard arguments on Louise's motion to set aside the dismissal, and without
leave of the court, on March 6, 2017, Louise filed what her counsel entitled as a "Counter
Petition for Legal Separation."
After hearing arguments on March 27, 2017, concerning Louise's motion to set
aside the order of dismissal, the district court found that because Dana had not properly
filed a motion to dismiss, it did not have the authority to grant Dana's motion of voluntary
dismissal under K.S.A. 2016 Supp. 60-241. Dana then made an oral motion to dismiss the
action. In response, Louise argued Dana could not now voluntarily dismiss the action
because she had filed a "counterpetition." Dana responded that Louise's counterclaim was
out of time and she would need leave of the district court to amend her answer, which she
had not done. Louise argued that her "counterpetition" was timely without leave; Dana
refuted this assertion, arguing that a counterclaim could be filed only in an answer to the
original petition, which at this point was now several years after the initial November
2015 filing. Thus, Louise was out of time to amend her answer without leave of the court.
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Nevertheless, the district court, sua sponte, asked Louise, "[A]ssuming the
requirement would be 21 days after the petition, what would your arguments be . . . as far
as being given the opportunity to file your counterclaim out of time?" Louise responded
that the parties had been negotiating and she expected to resolve the case through that
negotiation; however, the parties had not yet resolved the case, so she needed to file her
"counterpetition." The district judge stated that he was not 100% sure of a deadline or
requirement for filing a counterclaim, but even assuming there was, he found there was
an exception under the circumstances of this case and allowed Louise to amend her
answer to include a counterclaim for separate maintenance out of time as of March 27,
2017. The district court then permitted Dana to withdraw his oral motion to dismiss and
set the case for trial on April 18, 2017. Subsequently, Dana timely filed an answer to
Louise's counterclaim.
D. The April 2017 Hearing
At the April 2017 hearing, the parties announced they had reached an agreement
on the division of property and spousal support. Dana testified and confirmed the division
of assets and debts, including his agreement to pay Louise maintenance. Dana also agreed
to pay a $227,000 equalization payment to Mathieu, if that was who Louise designated as
her heir. Dana also agreed to dismiss the pending Missouri divorce case within 10 days.
Louise also testified and confirmed the agreement. The parties had reduced the division
of assets and debts to writing in Exhibit 101.
The district court accepted the parties' settlement and stated it would "do simply a
short docket sheet of today's hearing. It won't lay out anything, but I will attach [Exhibit
101] to be filed with the docket sheet." The district judge asked, "Do we need to make
any specific findings concerning the legal separation of this matter?" Louise's counsel
replied that findings regarding the legal separation were not necessary but there should be
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detailed findings or a proposed journal entry regarding certain property and the
maintenance payments. Dana's counsel agreed that a detailed journal entry was necessary.
The district court found the agreement was "made in fair negotiations" and was
"equitable" and "fair," stated it adopted the agreement of the parties as its own, made it
the order of the court effective that day, and filled out a docket sheet reflecting such.
Regarding the journal entry, the district judge stated:
"You can make it however you want it, and, if you want to attach a copy of this
to the journal entry, and just have the parties sign it after this is attached to it or make this
supplemental to it and then make it as detailed as you would like.
"I mean, pretty much this is my order and whatever you-all agree to as long as it's
consistent with this whatever format you put it in, doesn't make me any big bit of
difference."
Counsel for both parties discussed wanting to list every maintenance payment and
detailing each property with the legal description. Louise's counsel requested 10 days to
file the proposed journal entry, and the district judge responded,
"That's fine, however long it takes. What we're going to do is do a docket sheet
today. Essentially, I'll attach [Exhibit 101] to it, and we'll have a record. My order is
effective as of today.
"So even if she, God forbid, passes prior to the journal entry, the order is
effective when given. So we'll just wait on that."
The district court then completed a docket sheet that read as follows:
"Parties reach agreement and presents [sic] testimony of agreement. [Louise] introduces
Exhibit 101, which is an agreed spreadsheet of all property owned by the parties.
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"After hearing all testimony and the agreements of the parties the court finds the
agreement to be fair and equitable. The court adopts the agreement, and makes it the
court's order. [Louise] to prepare [a journal entry] of today's hearing. [Louise's] Exhibit
101, attached hereto, is adopted as [the] entire property list of the parties."
Dana later dismissed the Missouri divorce case.
E. Louise's Death, the Denial of Dana's Second Motion to Dismiss, and Substitution
of Mathieu for Louise
On July 1, 2017, Louise died. At the time of Louise's death, her counsel still had
not filed the court-ordered journal entry.
In a letter to the court on July 5, 2017, Dana's counsel reported that he and
Louise's counsel had agreed he would draft the journal entry and forward it to her, which
he had done on May 8, 2017, but he never heard back from Louise's counsel. Dana's
counsel argued "the failure to have a signed journal entry at the time of the death of one
of the parties, resulted in the parties still being married and the court being unable to
enter a journal entry following the death of one of the parties." Dana asked the court to
take no further action and dismiss the matter due to the passing of Louise.
On July 14, 2017, Dana filed proof of Louise's death; five days later, he sought to
dismiss the action, arguing that under K.S.A. 2017 Supp. 60-258 the failure to have a
journal entry on file at the time of Louise's death meant the separate maintenance or legal
separation action abated at that time, so the action had to be dismissed. Louise's counsel
opposed the motion for dismissal but did not make any specific counterarguments in
support of her objection.
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On August 31, 2017, Louise's counsel and Dana appeared at a hearing on Dana's
motion to dismiss. Before hearing argument on that motion, Louise's counsel made an
oral motion under K.S.A. 2017 Supp. 60-225(a) to substitute Mathieu as a successor or a
representative of Louise's interests. Louise's counsel informed the court that Mathieu
retained her on July 31, 2017, and argued that K.S.A. 2017 Supp. 60-225(a) was very
clear that once a motion for substitution of a party is made by the successor or
representative, the district court must grant the motion. Dana opposed this oral motion for
substitution, arguing that the action and Louise's claim extinguished on her death, so no
one could be substituted for her at all, and even if the claim was not extinguished, only
Louise's estate could be substituted for Louise under K.S.A. 2017 Supp. 60-225(a).
Mathieu confirmed at a later hearing that he was not Louise's executor. Notwithstanding,
the district court granted the motion and substituted Mathieu for Louise.
The district court then heard Dana's motion to dismiss. Dana testified and
acknowledged that he and Louise had reached a separation agreement, that he had made
payments to Louise of $5,000 per month both before and after the April 2017 hearing,
and that he had paid her credit card bills both before and after the April 2017 hearing.
After Dana's testimony, his counsel argued that the case had to be dismissed
because the district court lost jurisdiction upon Louise's death as there had been no
journal entry filed in the case memorializing the parties' agreement. Mathieu opposed the
motion, arguing that a journal entry is a record of the judgment but is not the judgment
itself and that it was clear from the April 2017 hearing that there was an oral binding
agreement placed on the record that the district court had adopted. Additionally, Mathieu
argued the district court's docket sheet was sufficient to constitute a judgment form that
also qualified as the entry of a judgment.
The district judge denied Dana's motion to dismiss, stating, "I do believe the
docket sheet as referred to by [Mathieu's] counsel in his arguments, it does, in fact,
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contain the requisite information that a journal entry will contain absent the specific
details." The district judge further commented "that this Court itself expedited matters
and moved other hearings and cases out of the way because of [Louise's] illness to try to
bring a final conclusion to this matter prior to her death" and "what this Court expected
was a more thorough, more exhaustive journal entry." The district court also remarked "in
hindsight, perhaps we did not do it according to the rule of law and if that be the case,
then the Court of Appeals will make the right decision and I'll be reversed and [Dana]
will have the benefit of the law." Mathieu's counsel offered to submit a proposed journal
entry memorializing the agreement but replacing Louise's name with Mathieu's. The
district court agreed and ordered Mathieu's counsel to submit the journal entry within 72
hours.
F. Mathieu's Claim for Enforcement of the Marital Settlement Agreement
Surprisingly, Mathieu's counsel failed to file the court-ordered journal entry within
72 hours, and by mid-September 2017 there still was no journal entry filed. Instead, on
September 14, 2017, Mathieu's counsel filed a document entitled "Counter Petition for
Enforcement of Marital Settlement Agreement," alleging breach of contract, unjust
enrichment, and equitable estoppel claims again Dana. Specifically, Mathieu alleged that
Dana had breached the April 2017 separation agreement and Mathieu, as Louise's
successor, was owed damages, attorney fees, and costs. Dana denied and opposed all of
these claims, arguing in part that there was no enforceable agreement once Louise died
without a journal entry having been entered. Additionally, despite the district court's
previous denial of Dana's motion to dismiss, Mathieu's counsel filed arguments in
opposition to Dana's motion to dismiss and, alternatively, asked the district court to enter
a judgment nunc pro tunc "to correct any error necessary to give the court's order and
judgment full force and effect as of April 18, 2017, as ordered on April 18, 2017."
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On November 15, 2017, the district court held a hearing on these motions. First,
the district judge denied Mathieu's request for a nunc pro tunc order, stating that while he
had intended for the April 2017 docket sheet to be a final decision, he had been ignorant
of the law requiring a journal entry. The district court indicated that the docket entry was
not a journal entry or a judgment form but was a trial docket or a docket sheet; the district
court had expected a journal entry; and if the docket entry was final, then the district
court had not given any notice to the parties of the right to appeal that entry.
Nevertheless, the district court again refused to dismiss the case due to Louise's death and
instead took up Mathieu's request to enforce the settlement agreement.
Both Dana and Mathieu testified. Dana did not dispute that since the April 2017
hearing he had taken care of the properties assigned to him in Exhibit 101; that Louise
had resided in one of the Canadian properties assigned to her until her death; that he had
paid her credit card bills, her maintenance, and paychecks; and that he had dismissed his
Missouri divorce action. However, Dana also testified that it was not his "understanding
that every single little detail [of the agreement] was laid out in front of this court" at the
April 2017 hearing and that several details of the agreement missing from the testimony
provided at that time would have been reduced to writing in the journal entry. Dana
contended that the agreement was never reduced to a formal writing because he and his
attorneys proposed a full written agreement in the form of a journal entry but Louise and
her counsel never approved it or submitted it to the court.
Mathieu testified that he had contact with Dana after the April 2017 hearing and
before Louise's death and Dana never told him there were documents that needed to be
signed by Louise to finalize anything. Mathieu also testified that Louise informed him
there had been an agreement reached, but Dana had never told him this nor had he ever
seen Exhibit 101 or an agreement.
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The district court found there had been a meeting of the minds between Dana and
Louise at the April 2017 hearing, found the disposition of all the property was testified to
on that date, and granted Mathieu's motion to enforce the property settlement agreement.
It ordered that a journal entry reflecting the agreement be prepared by Mathieu's counsel
and that the journal entry include not only Exhibit 101 but also every aspect of the
agreement that was testified to at the April 2017 hearing.
G. Final Actions and Filing of the Journal Entry in the District Court
By February 2018, no journal entry had yet been filed. So, on February 14, 2018,
Dana moved for a mistrial or alternatively to dismiss the case. This motion finally
prompted Mathieu's counsel to act, and on February 22, 2018, Mathieu's counsel
submitted a proposed journal entry, which the court signed without amendment. The
journal entry denied Dana's July 2017 motion to dismiss; outlined what property and
debts Dana and Louise were to receive; ordered Dana to pay Louise an equalization
payment of $227,000 payable over 15 years at 2% annual interest with a balloon payment
at the end of the equalization payments totaling 5 years' worth of payments; ordered Dana
to pay nonmodifiable maintenance of $5,000 a month until November 2026 or upon the
death of either party; and ordered Dana to dismiss his Missouri action. Exhibit 101 was
also attached to the order.
Dana timely appeals.
DID THE DISTRICT COURT ERR IN DENYING DANA'S
MOTION TO DISMISS AFTER LOUISE'S DEATH?
Dana's principal argument on appeal is that the district court erred in not granting
his July 2017 motion to dismiss. Specifically, he argues that because Louise died before a
final journal entry had been entered in the case, the separate maintenance action abated
13
upon her death and, therefore, the district court was divested of jurisdiction. Mathieu
argues that a civil action does not automatically terminate upon the death of a party and
that the court properly proceeded on Mathieu's claim for enforcement of the property
settlement agreement as an oral contract. Whether jurisdiction exists is a question of law
over which we exercise unlimited review. In re Care & Treatment of Emerson, 306 Kan.
30, 34, 392 P.3d 82 (2017).
A. Does an action for separate maintenance abate upon the death of one of the
parties?
At common law, all personal actions permanently abate upon the death of a sole
plaintiff or defendant. 1 Am. Jur. 2d Abatement, Survival, and Revival § 44; see 1 C.J.S.,
Abatement and Revival § 132 (a pending action abates upon death of either party at
common law unless altered by statutory enactment). Kansas has altered the common law
rule, and according to our Supreme Court, "whether a particular cause of action survives
the death of a party is to be determined by K.S.A. 60-1801." Gross v. VanLerberg, 231
Kan. 401, 405, 646 P.2d 471 (1982). K.S.A. 60-1801 states:
"In addition to the causes of action which survive at common law, causes of
action for mesne profits, or for an injury to the person, or to real or personal estate, or for
any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the
action may be brought notwithstanding the death of the person entitled or liable to the
same."
The most fundamental rule of statutory construction "is that the intent of the
legislature governs if that intent can be ascertained." State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). When a statute is plain and
unambiguous, we should not speculate about the legislative intent behind that clear
language and should refrain from reading something into the statute that is not readily
found in its words. See Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135 (2016).
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According to the plain language of K.S.A. 60-1801, all actions at common law
that survive the death of a party, plus those listed in the statute, do not abate upon the
death of a party. But because personal actions at common law do abate, the question is
whether an action for separate maintenance is a personal one.
The law in Kansas has long recognized that "[a] divorce action is purely personal
and ends on the death of either spouse." Wear v. Mizell, 263 Kan. 175, 180, 946 P.2d
1363 (1997); see Adamson v. Snider, 131 Kan. 284, 285, 291 P. 744 (1930) ("The
principal point to be determined in an action for divorce is the marital status of the
parties, and after the death of one of them that is no longer open to litigation."); see also
In re Marriage of Wilson, 245 Kan. 178, Syl. ¶ 2, 777 P.2d 773 (1989) ("In an action for
divorce, when a party dies after the divorce is orally granted but prior to the requested
journal entry of judgment being signed by the trial judge and filed with the clerk of the
district court, it is held that K.S.A. 60-258 renders the divorce decree ineffective."). In
short, "[a] divorce action abates at the time of death." Wear, 263 Kan. at 180.
A century ago, the Illinois Supreme Court discussed the personal nature of a
divorce action and its similarities with a separate maintenance action for the purposes of
abatement:
"Marriage is a personal relation or status, created under the sanction of law, and
an action for divorce is a proceeding brought for the purpose of effecting a dissolution of
that relation. The action is one of a personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action abates the action, for the reason
that death has settled the question of separation beyond all controversy and deprived the
court of jurisdiction, both over the persons of the parties to the action and of the subject-
matter of the action itself. For this reason the courts are almost unanimous in holding that
the death of either party to a divorce proceeding, before final decree, abates the action.
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"While the present action is one for separate maintenance, and differs from a
divorce proceeding, in that the latter is one for dissolution of the marriage relation, while
the former is one in affirmance of it and to enforce the obligations of that relation, they
are both, nevertheless, similar in their nature, as the marriage relation constitutes the
foundation of the action in each case, and the dissolution of that relation extinguishes the
subject-matter which forms the basis for such an action." Bushnell v. Cooper, 289 Ill.
260, 264-65, 124 N.E. 521 (1919).
Under K.S.A. 23-2701 and K.S.A. 23-2706, both the grounds and the remedies for
divorce and separate maintenance are the same. But unlike a divorce, an action for
separate maintenance does not terminate the marriage but allows the parties to live
separate and apart. Like in a divorce, in a separate maintenance action, the court may
order or the parties may agree to determine property and inheritance rights. See 1 Kan.
Law & Prac., Family Law § 9:58 (2018). Given that the nature of a spousal maintenance
action is very similar to a divorce action, and its essence is personal as it allows for a
married couple to live separately, we hold that a separate maintenance action is a
personal one that abates at the time of a party's death. This finding is in accord with other
jurisdictions which have considered the question. See, e.g., In re Marriage of Hilke, 4
Cal. 4th 215, 220, 14 Cal. Rptr. 371, 841 P.2d 891 (1992) (action for legal separation or
dissolution is personal and abated at spouse's death); Bushnell, 289 Ill. at 264-65
(separate maintenance action abates upon death of a spouse); Cregan v. Clark, 658
S.W.2d 924, 927 (Mo. App. 1983) ("[A] suit for dissolution or for legal separation abates
upon the death of one of the parties before final judgment."); Trinosky v. Johnstone, 149
N.M. 605, 608, 252 P.3d 829 (Ct. App. 2011) ("[U]nder the common law rule of
abatement, if a party to a legal separation action died prior to entry of a final decree, the
court was divested of jurisdiction over the matter.").
Accordingly, just as in a divorce, if either spouse in a separate maintenance action
dies prior to the filing of a final journal entry, the separate maintenance action abates
upon the death of that spouse and the district court loses jurisdiction.
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B. Was there a legally sufficient journal entry filed in the case prior to Louise's
death?
The next question is whether Louise died before a journal entry was entered. If
there was a journal entry entered before the death of Louise, then her death would be
inconsequential to the enforceability of the property settlement agreement. Although it
involves a divorce action, In re Marriage of Wilson, 245 Kan. at 178-79, illustrates the
importance of determining if a binding journal entry was entered before the death of a
party. In Wilson, at the divorce hearing the parties verbally agreed on a property
settlement, child custody, child support, and maintenance. The district court then "orally
granted a divorce to each party and accepted the parties' stipulation as to their agreement
on the balance of the issues" and directed wife's counsel to prepare the journal entry. 245
Kan. at 179. The journal entry was filed with the district court approximately 30 days
later. However, nine hours before the court entered that journal entry, the husband died.
The wife then requested to be relieved from the decree. The district court agreed with the
wife, set aside the journal entry, and dismissed the action, holding that under K.S.A. 60-
258 the parties were still married at the time of the husband's death and so the journal
entry was void. The administrator of the husband's estate appealed.
The Kansas Supreme Court ultimately unanimously affirmed the district court,
holding:
"The 1976 amendment [to K.S.A. 60-258] unequivocally states that no judgment
is effective until a journal entry or the judgment form is signed and filed. A journal entry
was requested by the trial court herein. The decision of the trial court could not become
effective prior to its filing by the express language of K.S.A. 60-258. If the decision of
the trial court granting the divorce could not become effective prior to the filing of the
journal entry, then it was ineffective prior to that time. [Husband] died prior to the trial
court's approval of, and the filing of, the journal entry. At the time of his death,
[Husband] was lawfully married to [Wife]. His death terminated that marriage.
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Accordingly, there was no marriage for the decree of divorce to terminate at the time the
journal entry reflecting the judicial termination was filed. [Wife] was [Husband's] widow
at the time the journal entry was signed and filed. We must conclude that the majority
opinion of the Court of Appeals correctly affirmed the trial court's setting aside of the
journal entry granting a decree of divorce." 245 Kan. at 180-81.
Further, the Supreme Court held that the parties' oral agreement to the division of
property and debts, orally approved of by the district court, was not effective absent a
journal entry:
"'Although separation agreements are authorized by statute, K.S.A. 1988 Supp.
60-1610(b)(3), division of property and apportionment of debt are not necessary where
the parties are not divorced. K.S.A. 60-258 renders the divorce decree ineffective in this
case; therefore, the agreement incorporated therein must also be ineffective. If there is no
divorce, there is no division of marital property.' 13 Kan. App. 2d at 294." 245 Kan. at
181.
Other Kansas cases dealing with the entry of journal entries or judgment forms
have held similarly to Wilson—if the death of a spouse comes before the journal entry is
entered, the case abates; if the death of a spouse comes after the journal entry is entered,
the case does not abate. See Wear, 263 Kan. at 180 (holding divorce action abated when
husband died before filing of journal entry); Great Plains Trust Co. v. Wallins, No.
99,483, 2008 WL 5135043, at *3 (Kan. App. 2008) (unpublished opinion) (holding
divorce case ended when the husband died before journal entry entered); In re Marriage
of Gilchrist, No. 91,029, 2004 WL 1716204, at *3 (Kan. App. 2004) (unpublished
opinion) (holding husband could not seek to set aside judgment and relitigate child
support and other issues because "trial court lost subject matter jurisdiction over the
divorce case when [the wife] died").
18
And these holdings align with the mandate from K.S.A. 2016 Supp. 60-258 that
"[n]o judgment is effective unless and until a journal entry or judgment form is signed by
the judge and filed with the clerk."
Yet, here, the question before us contains a unique wrinkle: The district judge
filled out a docket sheet that was used to add line entries in the district court's register of
actions and record minutes of what transpired during a proceeding before the district
court. The docket sheet read:
"Parties reach agreement and presents [sic] testimony of agreement. [Louise] introduces
Exhibit 101, which is an agreed spreadsheet of all property owned by the parties.
"After hearing all testimony and the agreements of the parties the court finds the
agreement to be fair and equitable. The court adopts the agreement, and makes it the
court's order. [Louise] to prepare [a journal entry] of today's hearing. [Louise's] Exhibit
101, attached hereto, is adopted as [the] entire property list of the parties."
Louise's counsel never filed a journal entry prior to her client's death.
"The law in Kansas is clear that a case is not final until there is no possibility of
further court action. The effective date of a journal entry is when it is signed by the trial
judge and filed with the clerk of the district court. A journal entry containing findings of
fact and conclusions of law takes precedence over and may differ from the trial court's
oral pronouncement from the bench. A judgment that has been orally pronounced but that
lacks a journal entry is therefore not a final judgment. [Citations omitted.]" Valadez v.
Emmis Communications, 290 Kan. 472, 482, 229 P.3d 389 (2010).
Thus, we must determine if the district court's docket sheet is sufficient to qualify
as a journal entry or judgment form under K.S.A. 2016 Supp. 60-258. A judgment is
effective only when a journal entry or judgment form has been signed by the judge and
19
filed with the clerk of the district court. 290 Kan. at 482. Importantly, trial docket minute
sheets do not comply with K.S.A. 2016 Supp. 60-258. See Wilson, 245 Kan. at 180-81.
Although the docket sheet or minute sheet in this case bears the signature of the
district judge, this document was never filed with the clerk of the district court. It bears
no file stamp. Moreover, while the docket sheet states it adopted the agreement of the
parties as the court's order, actually, there is no indication in the docket sheet of the
substance of the parties' agreement apart from an exhibit listing the property of the
parties. There is nothing regarding the settlement figure testified to, maintenance, living
expenses, or the dismissal of the Missouri divorce action. The docket sheet itself even
orders a journal entry to be prepared and filed. Notably, the district judge himself
conceded that this was not a journal entry but "was a trial docket or what we call here in
Wyandotte County a docket sheet" and that the court had "expected another document
that would have the title journal entry on the document." Under the facts presented here,
the docket sheet did not qualify as a final journal entry or judgment form.
Because the district court's docket sheet was insufficient to stand in place of a
journal entry or judgment form and because Louise died before any final journal entry
was filed, Dana's separate maintenance action abated upon Louise's death and the district
court lost subject matter jurisdiction over the case. The district court erred in denying
Dana's motion to dismiss filed after Louise's death.
The judgment of the district court is reversed, and the case is remanded with
instructions for the district court to dismiss the case. The other issues raised by Dana are
moot, and we express no opinion as to their propriety.
Reversed and remanded with directions.
20