In the Matter of Lynn Mortner and Theodore Mortner
168 N.H. 424
| N.H. | 2015Background
- Wife (petitioning for divorce) and Husband married in 1987; Wife filed for divorce in Oct 2013. Husband was ~90; Wife was 70.
- Parties and counsel signed a Memorandum of Understanding (MOU) in July 2014 allocating assets: Wife to pay Husband $250,000 and divide Wife’s limited partnership interest 55% to Wife / 45% to Husband; MOU said decree would not issue until the partnership division was effectuated.
- Counsel delivered a letter on Oct 29 that the decree could issue; the court signed a final divorce decree on Oct 30 incorporating the MOU.
- Unbeknownst to the court, Husband died on Oct 28 or Oct 29; parties had also executed an amendment providing an alternative 45% distribution right payable to Husband’s heirs/estate if the partnership interest could not be divided.
- Wife moved to vacate the decree after learning of Husband’s death; the trial court granted the motion, ruling the divorce abated on Husband’s death and vacating the prior decree. The Estate appealed; Wife cross-appealed on standing and counsel participation grounds.
Issues
| Issue | Wife's Argument | Estate's Argument | Held |
|---|---|---|---|
| Whether the Estate has standing to appeal the trial court’s abatement | Wife: Estate lacks standing because estate not opened when counsel appeared | Estate: Abatement removed assets from estate; Estate is aggrieved and has standing | Estate has standing; it suffered legal injury from abatement and may appeal |
| Whether trial court erred by allowing Husband’s counsel to appear after death | Wife: Counsel lacked a client; should not have been heard | Estate: Participation was permissible; issue not preserved for reversal | Court assumed without deciding any error; emphasized justice over procedural technicalities |
| Whether a divorce abates on the death of a party when parties had agreed to a stipulation/MOU and court had not yet reviewed/entered final judgment | Wife: Death abates divorce because decree had not been properly entered before death | Estate: Abatement inappropriate; statute permits decree on written stipulation and nunc pro tunc entry; MOU should survive or decree should be entered nunc pro tunc | Abatement affirmed: general rule applies—divorce abates on death absent exceptions; here judge had not rendered/entered judgment on merits and court’s review/approval is not a mere formality, so abatement was proper |
| Whether the MOU (or amendment) survives abatement as an enforceable contract/postnuptial agreement | Estate: MOU is enforceable against estate or equivalent to postnuptial agreement | Wife: Trial court treated MOU as vitiated by abatement; issue not raised below | Court declined to reach these arguments on appeal for lack of preservation |
Key Cases Cited
- Coulter v. Coulter, 131 N.H. 98 (N.H. 1988) (general rule that divorce abates on death and limits on nunc pro tunc entries)
- Hazen v. Hazen, 122 N.H. 836 (N.H. 1982) (exception where dispute relates exclusively to property rights post-divorce)
- Tuttle v. Tuttle, 89 N.H. 219 (N.H. 1938) (distinguishing judicial rendition of judgment from ministerial entry; judgment rendered before death supports entry)
- In re Estate of Couture, 166 N.H. 101 (N.H. 2014) (standing requires legal injury the law protects)
- In re Marriage of Rettke, 696 N.W.2d 846 (Minn. Ct. App. 2005) (court must independently review stipulations for fairness; stipulations are not self-executing)