Lead Opinion
[¶ 1] Glenvin Albrecht appeals from a divorce judgment distributing marital property. We conclude the death of Glen-vin 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 decreeing]” 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 Al-brecht 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 Al-brecht’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.
II
[¶ 4] This Court has held a divorce action abates upon the death of a party. Jochim v. Jochim,
[¶ 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,
[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. 25(a)(3) does not create an exception to the general rule that the death of a party to a divorce action, prior to entry of the final decree of divorce, abates the action and leaves nothing for the district court to decide.
Jochim, at ¶ 9.
[¶ 6] This Court also rejected the husband’s estate’s argument the divorce had already been granted when the husband died because an order for judgment had been issued. Jochim,
Although an order for judgment is required before a valid judgment can be entered, alone it is not sufficient to make a divorce final and does not conclude the proceedings. N.D.R.Civ.P. 58 (order for judgment required before judgment entered). A judgment includes any order from which an appeal lies. N.D.R.Civ.P. 54(a). An order for judgment is not appealable. See N.D.C.C. § 28-27-02 (what orders are appealable); Koehler v. County of Grand Forks,2003 ND 44 , ¶ 6 n. 1,658 N.W.2d 741 (order for judgment not appealable unless there is a subsequently entered consistent judgment). An action is not complete, and is still pending, until a judgment is entered. N.D.R.Civ.P. 58(a) (judgment not effective or final until entered). The Jochims’ marriage was not dissolved at the time of Greg Jochim’s death because a judgment had not been entered, and therefore his death terminated the marriage abating the divorce action.
Jochim, at ¶ 10.
[¶ 7] In Thorson,
Likewise, in North Dakota, marriage is a relationship personal to the parties of the marriage. N.D. Cent.Code § 14-03-01. Under section 14-05-01, NDCC,*758 Doris’s and Allen’s marriage was dissolved by Doris’s death. Upon the death, there was no longer a marriage for the trial court to dissolve with a judgment decreeing a divorce. A court will make an equitable distribution of the real and personal property when a divorce is granted. N.D. Cent.Code § 14-05-24. In a divorce action, the equitable distribution of property is incidental to a judgment of divorce. Because the marriage was dissolved by death and not by divorce, the trial court did not err when it held that there was no longer a marriage to be dissolved and, therefore, no issue of property distribution remaining before the court.
Thorson, at 696.
[¶ 8] A common thread in Jochim and Thorson and the cases cited in Thorson,
[¶ 9] Under our case law and those authorities, the death of a party before entry of a final divorce judgment abates the action. Here a document captioned as a “judgment” was filed on October 19, 2012, stating each party was entitled to a divorce from the other on the grounds of irrecon
[¶ 10] This record does not reflect that a request for certification of the October 2012 decision granting the parties a divorce was made under N.D.R.Civ.P. 54(b), which authorizes a court to direct entry of a final judgment as to one or more but fewer than all claims or parties if the court expressly determines there is no just reason for delay. See Brummund,
[¶ 11] This Court has acknowledged the divisible divorce doctrine which recognizes two distinct components in a divorce action that may have separate and distinct jurisdictional foundations for dissolution of the parties’ marital status and for adjudication of the incidences of their marriage. Kelly v. Kelly,
It has been determined that the dissolution of the marriage is an in rem proceeding and that, if process has been properly effectuated, a court has jurisdiction to change the marital status of the parties even when only one party to the marriage is a resident of the state in which the court is located. Indeed, this Court has recognized that a court need “not have personal jurisdiction over both spouses to validly terminate the marital status” if procedural due process has been met, and that “as long as the plaintiff satisfies the six-month residency requirement under [NDCC] § 14-05-17,” a court has jurisdiction to change the parties’ marital status “no matter where” the defendant spouse resides. Byzewski v. Byzewski,429 N.W.2d 394 , 397 (N.D.1988)....
But meeting the jurisdictional requirements to sever the marital status itself “does not necessarily grant the court the authority to adjudicate the related inci-den[ees] of the marriage.” Id. at 397. “Before adjudicating the incidences of the parties’ marriage,” a trial court “is required to obtain in personam jurisdiction over both [of the spouses].” Simpson [v. O’Donnell], 98 Nev. [516,] 518, 654 P.2d [1020,] 1021 [1982], Thus,*760 a court must have personal jurisdiction over a nonresident spouse in order to validly adjudicate matters of alimony or spousal support; the distribution or division of property; rights to child custody; and the award of child support.
[¶ 12] In Anderson v. Anderson,
[¶ 13] Rule 21, N.D.R.Civ.P., generally applies to misjoinder and nonjoinder of parties and authorizes a court to “sever any claim against a party.” Severed claims are appealable without a certification under N.D.R.Civ.P. 54(b). Anderson,
[¶ 14] Here, except for a jurisdictional issue under the doctrine of abatement, no other jurisdictional issue is present, and the district court did not explicitly sever the dissolution of the parties’ marital status from the property distribution. In the absence of a statute establishing finality for orders about the parties’ marital status, we decline to extend the narrow decision for an implied severance of a jurisdictional issue in Anderson to this case, because that result would create an exception to the law of abatement and our finality jurisprudence. See Boudreau v. Slaton,
[¶ 15] Under this Court’s finality jurisprudence, we conclude Sharleen Albrecht’s death before entry of a final judgment from which an appeal could be taken abated the divorce action. We therefore reverse the divorce judgment and remand for dismissal of the divorce action.
Ill
[¶ 16] We reverse the judgment and remand for dismissal of the divorce action.
Concurrence Opinion
concurring specially.
[¶ 18] I agree with and have signed Justice Sandstrom’s opinion for the Court. I write to note that if a N.D.R.Civ.P. 54(b) order had been part of the October 12, 2012 judgment or order for judgment or if the order for judgment had contained a provision allowing either party to marry immediately, I would consider the order final and the marriage dissolved, notwithstanding the reservation by the trial court of the issue of property division. Under N.D.C.C. § 14-05-02, “It is the duty of the court granting a divorce to specify in the order for judgment whether either or both of the parties shall be permitted to marry, and if so, when.” In the past I have seen orders for judgment and judgments dissolving the marriage and expressly allowing the parties to remarry while reserving issues of property division, spousal support and parenting rights and responsibilities for later determination. If we did not recognize such orders as final orders, the validity of a marriage entered into by one of the parties before those issues were determined could be in doubt. Here, if the trial court intended the October 12, 2012 judgment to be a final judgment dissolving the marriage, the judgment should have indicated as much. Neither the order for judgment nor the judgment contained either of these provisions and therefore the October 12, 2012 judgment was not a final judgment.
Dissenting Opinion
dissenting.
[¶ 20] I respectfully dissent. Instead of treating this case as merely an application of N.D.R.Civ.P. 54(b), I would affirm after concluding that the action did not abate, that the district court exercised its discretion and severed the divorce action from the property distribution proceeding and that the district court’s allocation of marital property was not clearly erroneous.
[¶ 21] The majority opinion follows our Rule 54(b) jurisprudence and overlooks the reality that a divorce action and the marital property division cannot always occur simultaneously. Legitimate delays sometimes occur in resolving property matters during the process of assembling financial information, obtaining appraisals or awaiting resolution of rights to pi'operty in other proceedings. See, e.g., Shannon v. Shannon,
[¶ 22] Treating the district court’s entry of a divorce judgment as a severance of the claim is consistent with our law recognizing marital dissolution proceedings have two distinct components that can be adjudicated separately. “Divorce proceedings typically contain two principal components: (1) the dissolution of the marital status, and (2) the adjudication of the incidences of the marriage. The ‘divisible divorce’ doctrine recognizes that each of these components have ‘distinct and separate jurisdictional foundations.’ ” Kelly v. Kelly,
[¶ 23] Here, the district court separated trial of the divorce and trial of property division. Trial on the divorce was conduct
[¶ 24] The district court did not explain the basis for its separation of the divorce from the property distribution. I would treat the court’s October 19, 2012 judgment as a severance of claims, as permitted under N.D.R.Civ.P. 21 (“The court may also sever any claim against a party.”). Upon severance, judgment can be entered after adjudication and the adjudicated claim is subject to appeal without Rule 54(b) certification. Anderson v. Anderson,
[¶ 25] Even considering matters in this case as I would; the district court’s October 18, 2012 order and the October 19, 2012 judgment both stated, “Neither party shall pay to the other alimony, spousal support or maintenance. Upon entry of judgment, the Court shall be divested of jurisdiction regarding alimony, spousal support or maintenance.” We consistently have held that spousal support and property division are interrelated and intertwined and must be considered together. Kosobud v. Kosobud,