Kinsler v. Superior Court

Opinion

FLEMING, Acting P. J.

Susan Kinsler appeals a minute order entered in an action to dissolve her marriage to Arnold Kinsler. The issue is whether the death of a party in a dissolution proceeding after entry of judgment dissolving the parties’ marital status abates the action and deprives the court of jurisdiction to decide the remaining issues in the cause. While the judgment dissolving the parties’ marital status is appealable (Code Civ. Proc., § 904.1, subd. (j);

In re Marriage of Van Sickle

(1977) 68 Cal.App.3d 728, 736 [137 Cal.Rptr. 568];

In re Marriage of Fink

(1976) 54 Cal.App.3d 357, 362-366 [126 Cal.Rptr. 626]), the minute order from which Susan appeals—which merely vacated pri- or minute orders—is not. Accordingly, we treat the appeal as a petition for a writ of mandate.

Arnold and Susan Kinsler were married in January 1977 and separated in October 1978. In November 1978 Arnold filed a petition to dissolve the childless marriage. Thereafter, the trial court entered several minute orders regarding, inter alia, the use and disposition of certain property and the award of temporary spousal support to Susan. On November 2, 1979, and January 22, 1980, respectively, the court entered interlocutory and final judgments dissolving the status of the marriage only, and reserving jurisdiction to confirm the parties’ separate property and divide their community property at a later date. On January 28, 1980, Arnold Kinsler died. The trial court concluded that Arnold’s death deprived it of jurisdiction to decide the remaining issues in the cause. On February 4, 1980, the court on its own motion entered a minute order abating the action and vacating nunc pro tunc as of the date of Arnold’s death “all orders heretofore made of any order or description.” On February 14 the court entered a second minute order to clarify that its first order was designated merely to vacate the orders it

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had “made with respect to spousal support, possession or use of real property, restraining orders and similar pendente lite orders.”

In her appellate brief Susan argued that the trial court’s vacation of all prior orders on February 4 “necessarily vacated” the interlocutory and final judgments dissolving her marital relationship and that the court exceeded its jurisdiction on February 14 when it clarified its February 4 order. Specially, she argued that the February 4 order restored her status as a wife, thereby entitling her to receive a widow’s pension from Arnold’s estate (Prob. Code, § 680). That contention is entirely without merit. The trial court never intended to vacate, nor did it in fact vacate, its prior judgment on the status of the marriage. It clearly did not exceed its jurisdiction or abuse its discretion on February 14 when it clarified its first order to indicate it was vacating, nunc pro tunc as of the date of Arnold’s death, nothing more than interim property and support orders. (Code Civ. Proc., § 473.) In any event, Susan has apparantly abandoned this contention since the filing of her appellate brief. On April 30, 1980, the probate court denied her petition for a widow’s allowance, and in appellate argument here Susan’s counsel conceded the finality of the judgment dissolving her marital status. (See