Glenvin D. Albrecht, Plaintiff and Appellant
Mark Albrecht, as personal representative of the Estate of Sharleen Joy Albrecht, Defendant and Appellee
As corrected January 29, 2015.
Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable John E. Greenwood, Judge.
Tracy J. Lyson, Fargo, N.D., for plaintiff and appellant.
James A. Reisnour, Jamestown, N.D., for defendant and appellee.
Dale V. Sandstrom, Lisa Fair McEvers. Opinion of the Court by Sandstrom, Justice. VandeWalle, Chief Justice, concurring specially. Crothers, Justice, dissenting. Carol Ronning Kapsner.
[¶1] Glenvin Albrecht appeals from a divorce judgment distributing marital property. We conclude the death of Glenvin Albrecht's wife, Sharleen Albrecht, before entry of a final judgment abated the divorce action, and we reverse the judgment and remand for dismissal of the divorce action.
[¶2] Glenvin Albrecht sued Sharleen Albrecht for a divorce in February 2010, after nearly 50 years of marriage. After an evidentiary hearing in October 2012, a " judgment" was filed on October 19, 2012, " order[ing], adjudg[ing] and decree[ing]" that each party was entitled to a divorce from the other on the grounds of irreconcilable differences and reserving disposition of all property issues for further proceedings. After another evidentiary hearing in March 2013, the district court issued a memorandum opinion on August 2, 2013, stating Sharleen Albrecht had died after the March 2013 hearing and distributing the parties' marital property equally. The court awarded Sharleen Albrecht assets valued at $702,290 and Glenvin Albrecht assets valued at $2,333,248, and ordered him to pay her $815,479 to equalize the property distribution. The court also awarded each party half of the proceeds from the sale of corn and soybeans and half of future payments from Sharleen Albrecht's two pensions, payable in a qualified domestic relations order. The court explained the marriage was long-term and none of the Ruff-Fischer guidelines established any reason to distribute the marital property unequally. The court issued a subsequent order substituting Sharleen Albrecht's estate as a party in the divorce action and denying Glenvin Albrecht's motion for clarification of the award of proceeds from the corn and soybeans and the date of division of Sharleen Albrecht's pensions. Glenvin Albrecht appeals from a September 27, 2013, judgment distributing the parties' marital property.
[¶3] A district court has jurisdiction over a divorce action under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06, but an issue in this case involves the effect of Sharleen Albrecht's death on the court's jurisdiction. Glenvin Albrecht's appeal from the September 27, 2013, divorce judgment is timely under N.D.R.App.P. 4(a). This Court has jurisdiction over an appeal from a divorce judgment under N.D. Const. art. VI, § § 2 and 6, and N.D.C.C. § 28-27-01.
[¶4] This Court has held a divorce action abates upon the death of a party. Jochim v. Jochim, 2006 ND 186, ¶ ¶ 1, 12, 721 N.W.2d 25; Thorson v. Thorson, 541 N.W.2d 692, 693, 696 (N.D. 1966). In Jochim, at ¶ 2, a district court entered an order for judgment in a divorce action on October 24, 2005. The husband died in a traffic accident on November 1, 2005, and a divorce judgment was entered on November 8, 2005. Id. The district court granted the wife's motion to vacate the judgment, determining the parties' divorce was not final when the husband died and his death abated the divorce action. Id. at ¶ 3.
[¶5] This Court concluded the district court did not abuse its discretion in vacating the judgment and dismissing the action, because the divorce action was still pending when the husband died and his death abated the action. Jochim, 2006 ND 186, ¶ ¶ 1, 12-13, 721 N.W.2d 25. This Court explained a " marriage is dissolved only '(1) [b]y the death of one of the parties; or (2) [b]y a judgment of a court of competent jurisdiction decreeing a divorce of the parties.'" Id. at ¶ 7 (quoting N.D.C.C. § 14-05-01). This Court rejected the husband's estate's argument the divorce action was not abated under the language of N.D.R.Civ.P. 25(a)(3), which provided that " [a]fter a verdict is rendered or an order for judgment is made in any action, such action shall not abate by the death of any party." Jochim, at ¶ 9. See also N.D.R.Civ.P. 54(d) (" If a party dies after a verdict or decision on any issue of
fact and before judgment, the court may still render judgment. That judgment is not a lien on the real property of the deceased party, but is payable as provided in N.D.C.C. ch. 30.1-19." ). This Court explained:
[A]s we said in Thorson, the death of one of the parties destroys the court's jurisdiction because there is no marriage upon which the decree can work. Thorson, 541 N.W.2d at 696. " Upon the death, there was no longer a marriage for the [district] court to dissolve with a judgment decreeing a divorce," the subject matter forming the basis of the action was destroyed and the court's jurisdiction was terminated. Id. The dissolution of the marital relationship is the object sought to be accomplished by the final decree, and in cases where one party dies before a judgment is entered that object has already been accomplished by the death. Unlike other actions where an injury has already occurred and damages have been incurred, death of a party to a divorce effectively renders a subsequent divorce judgment meaningless because there is no marriage left to dissolve. We conclude N.D.R.Civ.P. ...