Till Death Do We Litigate That Divorce

• Publication year: 2019
• Author: Adam F. Streisand and Meghan K. McCormick*

TILL DEATH DO WE LITIGATE THAT DIVORCE

Adam F. Streisand and Meghan K. McCormick*

MCLE Article

Dorothy: Now which way do we go?

The Scarecrow: Pardon me, this way is a very nice way.

Dorothy: Who said that?

[Toto barks at scarecrow]

Dorothy: Don't be silly, Toto. Scarecrows don't talk.

The Scarecrow: [points other way] It's pleasant down that way, too.

Dorothy: That's funny. Wasn't he pointing the other way?

The Scarecrow: [points both ways] Of course, some people do go both ways.

After the death of a spouse, litigation can frequently look a lot like a divorce. Often the death of a spouse occurs while a divorce action is pending. Other times, disputes arise after the death of a former spouse. In such circumstances, which way do I go—to the family court or to the probate court? What happens next can be reminiscent of that famous scene from "The Wizard of Oz" when Dorothy, intrepidly following the Munchkins' advice to follow the Yellow Brick Road, comes to a fork in that road. Unsure of which way she must go, the Scarecrow, still hanging from his perch, speaks up offering advice that "this way is a very nice way," but "[i]t's pleasant down that way, too," and finally, pointing in both directions, "some people do go both ways." Of course, Dorothy had an even more fundamental question: "How can you talk, if you haven't got a brain?" The Scarecrow's response, though inexact, was rather wise: "I don't know. But, some people without brains do an awful lot of talking, don't they?" This article is intended to take a step beyond the Scarecrow's inexact advice to help the brain make a reasoned choice of courtrooms.

The California superior court has jurisdiction over proceedings arising under the Probate Code and the Family Code assuming other jurisdictional requirements are met.¹ For example, in a decedent's estate proceeding, the superior court has jurisdiction if the decedent died while domiciled in California or left property in this State.² In the case of a trust, the superior court has exclusive jurisdiction over a trust if California is the principal place of the trust's administration.³ The superior court has jurisdiction over a marriage if California is the last place where the married couple resided together and there is personal jurisdiction over the parties.⁴ All courts in proceedings that arise under the California Probate Code or California Family Code are courts of general jurisdiction.⁵ However, many superior courts of the State of California are organized into divisions that include a family law court ("Family Court") and a probate court ("Probate Court").

When a local superior court is organized by division, the probate division exercises jurisdiction over matters under the Probate Code and the family division exercises jurisdiction over matters under the Family Code. Judges and counsel commonly refer to the probate division and family division as the Probate Court and Family Court, even though all "courts" can exercise the powers of courts of general jurisdiction and are divisions of one California superior court. While the organization of the superior court into divisions (generally by the county in which the court is located) is for administrative purposes and is not required because of differences in jurisdictional power, the practical effect is that in most superior courts in California the question of which division, probate or family, one must proceed with a case is not purely academic. Indeed, "where a distinct subject matter jurisdiction is exercised by a special department or 'court,' such as the probate, criminal or juvenile court, choice of the wrong department is more than mere error. If the wrong department attempts to exercise this special subject matter jurisdiction, it acts in excess of jurisdiction, and prohibition will lie to restrain the proceeding."⁶

Where a matter will proceed largely depends on persuading the Probate Court or the Family Court that it has jurisdiction. In the authors' experience, the Probate Court and Family Court are often unsure of which court has jurisdiction after the death of a spouse or former spouse when a divorce proceeding is either pending or recently concluded.

Although both the Probate Court and Family Court are courts of general jurisdiction, both courts also tend to be so highly specialized and procedurally idiosyncratic that the difference may be strategically significant in a given case. Expecting one court to be immediately familiar with the laws and procedures of the other is unrealistic. What is more likely and potentially destructive is that the Probate Court exercises jurisdiction because it incorrectly believes the matter arises under the Probate Code, or the Family Court improperly exercises jurisdiction over a matter it incorrectly believes arises under the Family Code. In either circumstance, the court may apply incorrect legal principles and procedures that lead to an erroneous decision.

Because the decision to proceed in either the Probate Court or the Family Court can be complicated, and in some cases having no clear answers or single source of authority, this article may be of use.

[Page 26]

I. PRIOR TO ADJUDICATION OF STATUS, FAMILY COURT JURISDICTION ABATES AT DEATH, EXCEPT TO ENTER ORDERS ON ADJUDICATED ISSUES

Family Code section 310 provides that marriage is dissolved by one of three means: (1) the death of one of the parties, (2) a judgment of dissolution, or (3) a judgment of nullity of the marriage. Under Family Code section 2337, the Family Court "may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues." When a spouse dies during the pendency of a marital dissolution action and before the status of the marriage is terminated, the death of the spouse terminates the marriage under Family Code section 310. In that circumstance, the Family Court's jurisdiction abates.⁷ If there are disputes between the surviving spouse and the deceased spouse's personal representative, those disputes must be litigated in the Probate Court. For example, the surviving spouse who seeks to establish community property rights in property must do so in Probate Court.

"[T]he death of a party to a dissolution proceeding abates the cause of action, as the status of the parties is no longer before the court, and ... the court thus loses jurisdiction to make any further determination of property rights, alimony, costs or attorney's fees."⁸ The Court of Appeal explained in In re Marriage of Allen:

[T]here is a meaningful difference between cases in which a party dies before a judgment of dissolution is entered and cases in which a party dies after the entry of judgment. Where a party dies before the marriage is dissolved, the dissolution action must abate and the court can make no further orders with respect to property rights, spousal support, costs or attorney fees. [Citations omitted.] On the other hand, when a judgment of dissolution has been entered and a party later dies, the court retains jurisdiction to adjudicate the reserved issues.⁹

In In re Marriage of Williams, wife filed a dissolution petition and sought custody of the two children, spousal support, and child support.¹⁰ The court issued a pendente lite order awarding custody to wife.¹¹ Several months later, wife became critically ill, entered the hospital, and became comatose.¹² Husband petitioned the court for an order transferring custody to himself.¹³ The same day, wife's brother and mother ("Claimants") filed a noticed motion to be joined to the dissolution proceeding, alleging they had an "active interest in the children's welfare," and claimed custody and visitation rights over the children based on the alleged unfitness of husband.¹⁴ Wife died, and the court awarded custody to husband, without prejudice to Claimants' motion.¹⁵ Husband sought dismissal of the dissolution proceeding on the grounds of wife's death.¹⁶ The court granted husband's motion to dismiss, finding that the dissolution proceeding had terminated as a matter of law, and that there was therefore no pending action to which Claimants could join.¹⁷ Claimants appealed. The Court of Appeal affirmed the dismissal, finding that wife's death terminated the marriage before the motion for joinder was adjudicated, and whatever rights Claimants may have had in the marriage dissolution proceeding thus abated.¹⁸

While the rule is that a dissolution action abates due to the death of a spouse prior to the entry of judgment, "the [family] court retains the power to enter judgment in conformity with matters already adjudicated before the death, but it can make no further adjudication of issues."¹⁹

In In re Marriage of Lisi, husband filed a petition for dissolution of marriage, and the court appointed private counsel (Ms. Vogel) to represent the couple's children. Ms. Vogel in turn hired an attorney (Ms. Amado) to assist her in that court appointment.²⁰ A year later, the court relieved Ms. Vogel of her duties, and ordered that she be paid a reasonable attorney's fee, the amount of which was to be determined at the time of trial, and payable from the sale of the family residence subject to allocation between husband and wife.²¹ Wife's mother later shot and killed husband.²² The court had not entered a judgment for dissolution. Thereafter, Ms. Vogel sought an order fixing the amount of her and Ms. Amado's fees, and apportioning the obligation between the husband and wife's community assets.²³ Wife opposed the motion, claiming that the fees were unreasonable, and that the Family Court had no jurisdiction to enter the order because the dissolution action abated upon husband's death.²⁴ The court awarded the fees, and wife appealed.²⁵ The Court of Appeal affirmed the trial court's award, reasoning that, under Family Code section 3150 et seq., the payment of fees is mandatory, and an attorney's right to receive fees vests at the time an order for fees is made.²⁶ Although the Family Court...