In re the Marriage of Wilson

Rulon, J.:

In this matrimonial action, Charles L. Wilson died after the divorce hearing, but before the journal entry of judgment and decree of divorce was signed by the trial judge and filed with the clerk of the district court. The district court set aside the journal entry and decree of divorce and ruled that Charles and Anita were married when Charles died. The administrator of Charles’ estate appeals the district court’s order setting aside the journal entry and decree of divorce. Finding no reversible error, we affirm.

The undisputed facts of this case are as follows:

In June 1987, Anita Wilson filed a divorce petition. Her husband, Charles, answered and filed a counterclaim also praying for a decree of divorce. On November 5, 1987, a hearing was conducted in district court. Anita testified that she wanted the marriage dissolved and that the parties had reached an agreement regarding the terms and conditions of the divorce, including property division, child custody and support, and maintenance. Charles testified and requested a divorce be granted and further stated that he agreed with Anita’s testimony regarding their agreement. At the conclusion of the hearing, the court ordered Anita’s attorney to prepare the decree.

Twenty-nine days after the hearing, on December 4, 1987, at 12:16 a.m., Charles died. Approximately nine hours later, on December 4, 1987, at 9:00 a.m., the signed journal entry and decree of divorce was delivered to the clerk of the court for filing.

Ten days later, Anita filed a suggestion of death and subsequently filed a motion pursuant to K.S.A. 60-260 requesting that she be relieved from the effect of the journal entry and decree of divorce. At the conclusion of the hearing on Anita’s motion, the district court held:

“The Supreme Court of the State of Kansas has specificially held that a divorce is not final until the Journal Entry is filed. Consequently, the death of Mr. Wilson prevents the divorce from being granted. The Decree of Divorce that I signed on - at 9:00 on December 4,1987, is set aside, cancelled and held for naught. Mr. and Mrs. Wilson were legally married at the time of his death. It’s the Order of the Court.”

The court’s order was journalized and the administrator of Charles’ estate filed a timely notice of appeal.

The sole issue on appeal is whether the district court erred in setting aside the journal entry and decree of divorce.

This court’s scope of review on questions of law is unlimited. Utility Trailers of Wichita, Inc. v. Citizens Nat’l Bank & Tr. Co., 11 Kan. App. 2d 421, 423, 726 P.2d 282 (1986).

In the present case, although the result may be perceived as harsh, the trial court properly found the journal entry and decree of divorce ineffective. K.S.A. 60-258 provides:

“Entry of judgments shall be subject to the provisions of section 60-254(b). No judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. Where a judgment form is used it shall be substantially as follows:

_, Plaintiff,

vs. No__

_, Defendant.

JUDGMENT FORM

On this_day of_, 19. judgment is entered as follows:

(Include here the judgment entered)

Judge

“When judgment is entered by judgment form the clerk shall serve a copy of the judgment form on all attorneys of record within three days. Service may be made personally or by mail. Failure of service of a copy of the judgment form shall not affect the validity of the judgment.”

In State v. Dubish, 234 Kan. 708, 675 P.2d 877 (1984), the Supreme Court discussed K.S.A. 60-258 as it existed prior to its amendment in 1976 and then reviewed the statute as amended. Justice Lockett, writing for a unanimous court, stated:

“The new statute’s language is clear. No judgment is effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. In re Estate of Burns, 227 Kan. 573, 575, 608 P.2d 942 (1980). In the recent case of Anderson v. United Cab. Co., 8 Kan. App. 2d 694, 666 P.2d 735, rev. denied September 8, 1983, the Court of Appeals found the notation of the decision of the trial judge in his trial docket, and the notification of the decision to the attorneys by letter, was not in compliance with K.S.A. 60-258. The letter contained a direction to defendant’s counsel to prepare a proper journal entry. The Court of Appeals held entry of judgment did not take place until the journal entry was filed. See also Smith v. Smith, 8 Kan. App. 2d 252, 655 P.2d 469 (1982).” Dubish, 234 Kan. at 714-15. (Emphasis added.)

The Dubish case involved the question of whether a criminal defendant and the victim of aggravated sodomy were married when the crime occurred. The aggravated sodomy statute in effect at that time precluded conviction of sodomy for activities between a husband and wife. In that case, the sodomy occurred on October 4, 1982, and the journal entry and decree of divorce was signed by the trial judge and filed with the clerk on October 15, 1982. The Supreme Court concluded that the divorce took effect on October 15, 1982; thus, the defendant and the victim were still married when the sodomy occurred. The Supreme Court reversed the aggravated sodomy conviction and set aside the sentence.

In the present case, the journal entry and decree of divorce was signed by the judge and filed with the clerk on December 4, 1987, at 9:00 a.m. Charles and Anita were married until that time. Charles died before the journal entry was effective; thus, the parties were married at the time of his death.

Charles’ estate asserts that the division of property and marital status of the parties are two aspects of a divorce action that are divisible. This position is untenable. The cases cited by counsel do not support this proposition; in each of the cited cases, the journal entry and decree of divorce was effective. Adamson v. Snider, 131 Kan. 284, 291 Pac. 744 (1930); Craig v. Craig, 112 Kan. 472, 212 Pac. 72 (1923); Martin v. Martin, 5 Kan. App. 2d 670, 623 P.2d 527, rev. denied 229 Kan. 670 (1981).

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.

This court is duty bound to follow the law as interpreted by the Kansas Supreme Court absent some indication of change by that court. Because the Dubish court held that K.S.A. 60-258 must be applied without exception, the better practice would be for the district court to sign and file a judgment form immediately following a divorce hearing if counsel have not prepared the appropriate journal entry in advance.

The issue of whether the parties’ property settlement agreement can be enforced by a separate action need not be decided; that issue is not properly before this court because it was not presented to the district court.

The district court’s order setting aside the journal entry and decree of divorce is affirmed.