In Re Marriage of Mallory

We hold that the trial court in a marital dissolution action is empowered to enter a judgment nunc pro tunc with respect to all issues, including marital status, submitted to the court for decision prior to the death of a party to the proceeding, notwithstanding the general rule that such a death abates a cause of action for termination of status.

Procedural History

On October 25, 1985, respondent Iva Jean Mallory (Iva) filed a petition for dissolution of her 11-year marriage to Herbert Dean Mallory (Herbert). The petition asked the superior court to end the marriage of the parties, confirm their separate properties, and divide their community property. Herbert filed his response to the petition on November 25, 1985; he asked for dissolution of the marriage and for the resolution of property issues.

On October 29, 1987, trial of the action commenced. The last of the written arguments of the parties was filed not later than January 5, 1988. The case was submitted for decision on that date.

On April 25, 1988, at 8:50 a.m., Herbert was found dead in his home. At 3 p.m. on the same day, the trial court entered a minute order dissolving the marriage and deciding the…