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In re Marriage of Towle

Court of Appeals of Kansas

March 15, 2019

In the Matter of the Marriage of Dana Towle, Appellant, and Louise LèGarè, Appellee. (Mathieu Bonin, Substitute Appellee.)


         1. At common law, all personal actions permanently abate upon the death of a sole plaintiff or defendant.

         2. 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.

         3. The law in Kansas has long recognized that a divorce action is purely personal and ends on the death of either spouse.

         4. A separate maintenance action is purely personal because it concerns the marriage relation and, therefore, abates upon the death of either spouse.

         5. A judgment is effective only when a journal entry or judgment form is signed by the judge and filed with the clerk of the district court.

         6. If 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.

          Appeal from Wyandotte District Court, Timothy L. Dupree, judge. Opinion filed March 15, 2019. Reversed and remanded with directions.

          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.

          Amanda B. Kivett, of The Kivett Law Firm, LLC, of Kansas City, Missouri, for appellee and substitute appellee.

          Before Buser, P.J., Powell, J., and Stutzman, S.J.

          POWELL, J.

         Dana 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 motion.

         On 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 remand.

         Factual and Procedural Background

         A. Background of the Parties

         Dana 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.

         B. Initiation of the Separate Maintenance Action and Dana's Voluntary Dismissal

         In 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.

         In May 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.

         In June 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.

         On 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.

         Nevertheless, 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.

         C. Setting Aside the Dismissal and Louise Filing a Counterpetition

         On 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 Court."

         In 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 ...

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