In the Matter of the Marriage of Dana Towle, Appellant, and Louise LèGarè, Appellee. (Mathieu Bonin, Substitute Appellee.)
BY THE COURT
common law, all personal actions permanently abate upon the
death of a sole plaintiff or defendant.
Kansas has altered the common law rule and whether a
particular cause of action survives the death of a party is
to be determined by K.S.A. 60-1801. K.S.A. 60-1801 provides
that in addition to the causes of action which survive at
common law, causes of action for mesne profits, personal
injury, property damage, deceit or fraud, and wrongful death
also survive the death of a party.
law in Kansas has long recognized that a divorce action is
purely personal and ends on the death of either spouse.
separate maintenance action is purely personal because it
concerns the marriage relation and, therefore, abates upon
the death of either spouse.
judgment is effective only when a journal entry or judgment
form is signed by the judge and filed with the clerk of the
the death of either spouse in a divorce or separate
maintenance action occurs before the filing of the journal
entry, such death immediately terminates the action as the
district court loses jurisdiction and the parties'
property settlement agreement, agreed to as part of the
divorce or separate maintenance action, becomes void.
from Wyandotte District Court, Timothy L. Dupree, judge.
Opinion filed March 15, 2019. Reversed and remanded with
Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of
Kansas City, Missouri, and Stephanie L. Schutt, of Ritchie
& Soper PC, of Liberty, Missouri, for appellant.
B. Kivett, of The Kivett Law Firm, LLC, of Kansas City,
Missouri, for appellee and substitute appellee.
Buser, P.J., Powell, J., and Stutzman, S.J.
Raymond Towle petitioned the Wyandotte County District Court
for separate maintenance (more commonly known as a legal
separation) from his wife, Louise LèGarè. After
the case had been pending for several months, Louise was
diagnosed with terminal cancer. Ultimately, the parties were
apparently able to reach a property settlement agreement that
was placed on the record and approved by the district court.
The court, anticipating Louise's pending demise, filled
out and signed a docket sheet approving the parties'
property settlement agreement and directed Louise's
counsel to prepare the journal entry. Unfortunately, several
months passed and Louise died without her counsel having
filed the journal entry. Dana then sought dismissal of the
case on the grounds that Louise's death had abated the
action and divested the court of jurisdiction. The district
court denied Dana's motion to dismiss and substituted
Louise's son, Mathieu Bonin, for Louise even though he
was not the executor of Louise's estate. It ordered
Mathieu, now represented by Louise's counsel, to submit a
journal entry within 72 hours. Several more months went by
without the journal entry being filed. Instead of filing a
journal entry, Mathieu sought enforcement of the property
settlement agreement, claiming Dana had breached it. The
district court found that the parties had sufficiently
memorialized their agreement and granted Mathieu's
appeal, Dana principally claims the district court erred by
not dismissing the case as the action abated at the time of
Louise's death. As a matter of first impression and for
reasons more fully explained below, we agree with Dana that
his petition for separate maintenance is a personal one which
abated upon Louise's death. Because the journal entry
memorializing the parties' property settlement agreement
had not been approved by the district court and filed with
the clerk prior to Louise's death, the district court
erred in not dismissing the case. Accordingly, we reverse and
and Procedural Background
Background of the Parties
and Louise were married in Missouri in the late 1980s. Louise
was originally from Montreal, Quebec, where her son from a
previous relationship, Mathieu, resides. During the marriage,
the parties accumulated significant assets including real
estate in Kansas, Missouri, and Quebec and surgical centers
as part of Dana's medical profession in Kansas. No
children were born of the marriage.
Initiation of the Separate Maintenance Action and
Dana's Voluntary Dismissal
November 2015, Dana filed a petition for separate maintenance
in Wyandotte County District Court, alleging he was a
resident of Edwardsville, Kansas. Louise filed an answer,
admitting she had lived in Edwardsville for 90 days but
denying that Dana had resided there. Louise asserted no
counterclaims in her answer.
2016, Dana and Louise agreed to a temporary order, which the
district court approved, allowing the parties to live
separately during the action. Among other provisions, the
order provided that Dana would continue to pay Louise's
living expenses, Louise would continue to possess the
parties' Edwardsville residence, and no party would be
dispossessed of any property without a joint written
agreement or court approval. Thereafter, the parties worked
with a certified public accountant, financial mediator, and
valuation analyst to develop a comprehensive valuation and
division of the parties' assets and debts. As of October
2016, the parties were able to develop a comprehensive list
of their assets and debts, along with their agreed values.
This understanding was memorialized in a one-page document
known as Exhibit 101.
2016, Louise was diagnosed with stage 4 metastatic lung
cancer. Although Dana learned of Louise's illness in
August 2016, Louise did not inform Dana of the details
surrounding the diagnosis until October 2016.
October 26, 2016, Dana's counsel filed a motion to
dismiss his petition for separate maintenance without
prejudice and attached a proposed order. However, because the
order's title included the word "proposed," the
district court clerk rejected the filing and directed
Dana's counsel to correct it. The next day, Dana's
counsel refiled the now correctly titled order but failed to
refile the motion. Dana's counsel later told the district
court that the clerk's staff only told him to refile the
proposed order and not the motion itself. As the district
judge stated, "[E]ither [Dana's counsel]
misunderstood the instruction or [was] given the wrong
instruction, whichever way, but . . . there was no motion [to
dismiss] filed." No such motion to dismiss appears in
the record on appeal. Louise's counsel stated that she
never received notice of such a motion.
it appears there was such a motion before the district court
at some point because on October 27, 2016, it granted
Dana's motion to dismiss without prejudice and, on
October 31, 2016, the district judge signed a docket entry
dismissing the case. Louise's counsel admitted that these
two orders were entered into the e-filing system and served
on Louise; her counsel later claimed that she believed the
matter was dismissed in error. After dismissal of this case,
Dana filed for divorce in Jackson County, Missouri.
Setting Aside the Dismissal and Louise Filing a
March 2, 2017-122 days after the apparent dismissal of the
case-Louise sought to set aside the dismissal order under
K.S.A. 2016 Supp. 60-260(b). She argued the order violated
K.S.A. 2016 Supp. 60-241(a) and K.S.A. 2016 Supp. 60-207(b)
because Dana had not formally filed a motion to dismiss.
Louise asserted that the order had to be set aside as the
result of surprise, excusable neglect, misrepresentation, or
misconduct by an opposing party and that Dana's dismissal
was a ruse to unjustly enrich himself.
"[Dana] misrepresented his intentions to [Louise]
knowing that [her] medical condition prevents [her] from
easily participating in the litigation process, knowing that
a delay in the entry of the final division of assets herein
and [Louise's] untimely death would allow [Dana] to
receive all of the parties' assets herein thereby
unjustly enriching [him], and knowing that due to the
advanced nature of [Louise's] terminal cancer [she]
cannot file a new Petition and wait the statutorily required
time for entry of a Decree. . . . It is in the interest of
substantial justice that this Court set aside its Dismissal
Order entered herein as it is necessary for [Louise] to
complete the division of the parties' assets and return
to her son prior to her death and as without this Court
setting aside its Dismissal Petitioner shall be unjustly
enriched by his misrepresentations to [Louise] and the
support of her assertions, Louise attached to her motion a
three-week-old letter from her physician, which attested to
her condition and stated she "desire[d] to return to her
family and home in Montreal, Canada for her remaining months
of life" and "it is of the most urgent necessity
that she gets her divorce settled so that she has funds to
move, get medical care, and live with her family that can
support and care for her." Dana opposed Louise's
request to set aside the dismissal. Although he denied many
of her allegations, he did admit that the motion to dismiss
was not correctly filed. Before the district court heard
arguments on Louise's motion to set ...