Frapwell v. Gillespie

Opinion

KINGSLEY, Acting P. J. This is a second appeal1 in the litigation over the proper division of the marital estate of the late Byron H. Frapwell and his surviving wife. The husband and wife were in their late fifties at the time of their marriage. They met in September 1972; within a week Byron proposed marriage and Ruth accepted. They were married on December 8, 1972, and separated on April 13, 1973. On June 18, 1973, Ruth filed the present action for dissolution. An interlocutory decree was [481]granted on March 11, 1974, and entered on May 22, 1974. On May 29, 1974, Ruth appealed (2d Civ. No. 45072) from the portions of the interlocutory decree dealing with the division of property as community or separate. On June 30, 1975, this court filed its opinion, sustaining Ruth’s contentions and reversing the portions of the interlocutory decree from which she had appealed. (In re Marriage of Frapwell (1975) 49 Cal.App.3d 597 [122 Cal.Rptr. 718].)

While that appeal was pending, respondent Gillespie (who had been substituted on Feb. 21, 1975, as party respondent following Byron’s death on Dec. 22, 1974) filed a motion for the entry of a final decree of dissolution, nunc pro tunc as of July 22, 1974. We quote the declaration made by respondent in support of his motion.2

“I, James P. Gillespie, say:

“That the respondent, Byron Henry Frapwell, died on or about December 22, 1974; and that on January 29, 1975, I was appointed as executor of the will of Byron H. Frapwell. That I was the attorney of record for said respondent herein, and am familiar with all of the facts and circumstances of this proceeding.

“The court acquired jurisdiction of the respondent on August 8, 1973, by respondent on that date having appeared.

“An interlocutory judgment of dissolution of marriage was granted by this court on March 11, 1974, and entered in Judgment Book WE 113, page 010, on May 22, 1974. Petitioner filed a notice of appeal on or about May 29, 1974, and said appeal is presently pending in the Court of Appeal of the State of California, Second Appellate District, being Case No. 45072. That the particular portion of the judgment appealed from pertained to the confirmation and setting aside of the following property to the respondent as his sole and separate property:

“1. 1972 Oldsmobile automobile;