Tuesday, June 29, 2010

Death of Spouse While Divorce Pending

POLLARD v. POLLARD

No. 05-08-01516-CV
Court of Appeals of Texas, Fifth Distrct, Dallas.

June 25, 2010

The Dallas court of appeals recently affirmed the notion that if two parties are not actually divorced at the time of the death of one of the parties, the parties are married on the decedent's death, irrespective of whether the trial court has granted a divorce and one of the parties has appealed.

In discussing the Pollard matter (available at http://tinyurl.com/2egftlb), the appeals court explained that the parties had been married but that the trial court rendered a final decree of divorce dissolving the marriage. However, husband appealed regarding division of assets, but, importantly, did not sever the issue of dissolution of marriage (which he did not intend to challenge) from the property division portion of the final order.

By failing to limit the scope of his appeal and therefore failing to severe the issue of dissolution of marriage from husband's appeal on the division of property, the appeals court determined that the husband had appealed the entire final order, which it reversed and remanded back to the trial court. At the time of remand and by the act of remand, the marriage between the parties was still in tact.

Before the trial court could rehear the entire case and enter a new order, the wife died after the appeals court reversed and remanded the case. Eventually the wife died and the executor of her estate proceeded as though wife were divorced at the time of her death.

In its analysis, the appeals court reiterated the notion that:
  1. If the scope of appeal was not limited by appellant, then the entire order was appealed.
  2. If the entire order is appealed and later reversed and remanded back to the trial court, legally, the relationship of the parties was the same as if the appealed order had never been made by the trial court in the first place. In other words, it's the same as if the trial court never granted the divorce.
  3. If the trial court had never granted a divorce, then the parties were married at the time of the decedant spouse's death, even though divorce proceedings had been continuing in the case for nearly 9 years, with a divorce having been granted twice and reversed and remanded twice.

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