Opinion
No. FA 97-0158217
October 7, 1999
MEMORANDUM OF DECISION de MOTION FOR ADMINISTRATOR TO BE SUBSTITUTED AS PARTY DEFENDANT (121)
The plaintiff, Annette Ott, and the defendant, John Ott, were married on August 27, 1983. In 1997, the plaintiff commenced this action for dissolution of the marriage, alimony, custody, child support, assignment of a portion of the defendant's estate, transfer of interest in real property, counsel fees and an order for the defendant to provide security and satisfaction of any judgment. On March 24, 1998, this court entered judgment dissolving the marriage and declared each party unmarried, at which time the court recessed for later determination all financial orders. The court stated that "judgment [was] not complete." The court did not issue financial orders after that time. The defendant died in March of 1999. The plaintiff moves for the administrator of the defendant's estate to be substituted as a party defendant.
"`[I]f an action for divorce is commenced, and one of the parties dies thereafter, but before the entry of a final decree, the action abates.' 24 Am.Jur.2d 176 (1983)." Misheff v. Misheff, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 139817 (December 12, 1995, Harrigan, J.). "By retaining jurisdiction to deal with . . . property, the court [does] not render the final judgment dissolving the marriage any less final." Fernandez v. Fernandez, 648 So.2d 712 (Fla. 1995). Following the death of a party to a dissolution proceeding, "some courts have retained jurisdiction to determine property questions . . . when a judgment of dissolution has already been rendered, yet property questions remain to be determined."Misheff v. Misheff, Ibid. "`[O]nce a final divorce decree had been entered, the right of a subsequently deceased spouse to the distribution of marital property and other economic claims, where these matters have been properly put before the court, is vested.'" Id., quoting Pinkerton v. Pinkerton, 435 Pa. Super. 455, 646 A.2d 1184, 1185 (1994). Hence, "where a final judgment of dissolution has been entered before the death of a given spouse, a trial court retains jurisdiction to determine property rights after that spouse's death, if it reserved jurisdiction to do so pursuant to the final judgment of dissolution." MacLeod v. Hoff, 654 So.2d 1250 (Fla.App. 2 Dist. 1995); see Kinsler v. Superior Court, 175 Cal.Rptr. 564, 565-66, 121 Cal.App.3d 808 (1981).
Because this court stated that it would "recess this matter and take up all of the financial orders, both periodic and division of assets, at a later date"; (Transcript, p. 5); the court retained jurisdiction over the financial orders to be litigated. Hence, the plaintiff may substitute the administrator of the defendant's estate as the party defendant and complete this action for dissolution.
However, if disputes arise from the court's financial orders, such disputes may not be enforced through this proceeding. See Abel v. Abel, Superior Court, Judicial district of New London at New London, Docket No. 525646 (July 9, 1997, Booth, J.) ("The administratrix may not pursue enforcement of the judgment within the context of dissolution proceeding or by invocation of the court's contempt power in the dissolution action").
This outcome is consistent with this court's decision in Lack v. Lack, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 97844 (September 11, 1997, Harrigan, J.) ( 20 Conn.L.Rptr. 396), where a personal representative was substituted for the decedent wife. There, this court made a finding as to the amount the defendant owed pursuant to the judgment that dissolved the parties' marriage. See Id., 397. The court made its finding despite the wife's death because "[t]he post judgment activity in the . . . case began before the plaintiff died, involved periodic orders and a pendente order suspending the said orders." Id. The court's finding of the amount owed, however, "exhaust[ed] the court's jurisdiction." Id. This court has jurisdiction to decide the financial matters in this case with the substituted defendant, but such determination exhausts the court's jurisdiction over the matter.
Note that the present action is distinct from Kelleher v. Kelleher, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 138810 (September 22, 1998, Harrigan, J.) ( 22 Conn.L.Rptr. 648), where this court dismissed the plaintiff's motion to set aside a dissolution judgment as to the disposition of property, holding that the court lacked jurisdiction. See Id., 649. There, the defendant died after the plaintiff made the motion, and the decedent's executor substituted thereafter. See Id., 648. The court held that its "power to assign property is based on its jurisdiction over the marriage dissolution. The dissolution action is personal, terminating upon the death of the party." Id. The court therefore lacked jurisdiction to order a new trial. See Id. Here, however, the court is merely completing a proceeding commenced before the defendant's death, not entertaining a motion to re-litigate a matter already decided.
The plaintiffs motion is granted.