NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court's home
page is: http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
7th Circuit Court–Dover Family Division
No. 2015-0115
IN THE MATTER OF LYNN MORTNER AND THEODORE MORTNER
Argued: October 15, 2015
Opinion Issued: December 18, 2015
Coughlin, Rainboth, Murphy & Lown, P.A., of Portsmouth (Timothy C.
Coughlin on the brief and orally), for the petitioner.
Bianco Professional Association, of Concord (Jason B. Dennis on the
brief and orally), for Judith Mortner, temporary administrator of the estate of
the respondent, Theodore Mortner.
CONBOY, J. Judith Mortner, temporary administrator of the estate of
the respondent, Theodore Mortner (Husband), appeals, and the petitioner,
Lynn Mortner (Wife), cross-appeals an order of the Circuit Court (Foley, J.)
abating the Wife’s divorce action and vacating its prior final divorce decree. For
ease of reference, we refer to the temporary administrator of Husband’s estate
as the Estate. In its appeal, the Estate argues that the trial court erred by
abating the divorce action. In her cross-appeal, Wife argues that the Estate
lacks standing to contest the abatement and that its appeal, therefore, should
be dismissed. She also asserts that the trial court erred when it allowed
Husband’s counsel to appear at the hearing on her motion to abate the divorce.
We decline to dismiss the Estate’s appeal and affirm the trial court’s decision.
The pertinent facts follow. Husband and Wife were married in July 1987.
In October 2013, Wife filed a petition for divorce when she was 70 years old
and still working and Husband was approximately 90 years old and still
working.
In July 2014, Husband, Wife, and their counsel signed a “Memorandum
of Understanding” (MOU) purporting to settle the divorce action. The MOU
required Wife to pay Husband “the sum of $250,000 within 30 days of the date
of decree,” and provided that her “entire interest in American Bailey Mining
Company Limited Partnership shall be divided with [Wife] receiving 55% and
[Husband] receiving 45%.” The MOU stated that its terms “shall be a charge
against each party’s estate.” The MOU further provided that once documents
“to effectuate [the] distribution” of Wife’s limited partnership interest were
executed, “the Divorce may go to judgment.” However, “the judgment date” was
to be deferred until the limited partnership was divided. The MOU instructed
that no decree should issue until counsel notified the court that the limited
partnership had been divided. The MOU was “contingent upon confirming that
no changes, pledges, transfer or sale of [Wife’s] interest has occurred and
confirming her interest, which is approximately 1.52% . . . can be divided and
transferred to [Husband].” The MOU indicated that both parties “waive[d]
attendance at a final hearing.”
The MOU was filed with the court in September with a cover letter
reminding the court that the divorce decree was not to issue until counsel
notified the court that it could issue. On October 29, Husband’s counsel hand-
delivered to the court a letter advising that the decree could now issue. On
October 30, the court signed an order that decreed the parties divorced on the
ground of irreconcilable differences, approved the MOU, and incorporated it as
part of the divorce decree. Unbeknownst to the court, however, Husband died
on either October 28 or October 29. Also unbeknownst to the court, the
parties on October 29, through their counsel, entered into an amendment to
their proposed final decree of divorce and their MOU. Pursuant to that
amendment, should it be impossible to divide Wife’s interest in the limited
partnership, the parties agreed that Husband, “his heirs, assigns, and estate,
shall, forever, be entitled to receive 45% of the gross amount of each and every
payment/ distribution/ dividend/ money” paid by the limited partnership, “as
a result of [Wife’s] status as a Limited Partner.”
Wife subsequently filed a motion to reconsider the issuance of the divorce
decree, requesting the court to vacate the decree on the ground that, before the
court had signed its October 30 order, Husband had died. Counsel for
Husband objected to the motion and requested that the court enter a decree
nunc pro tunc. Following a hearing in January 2015, the trial court granted
Wife’s motion and denied Husband’s motion. The court ruled that the divorce
had abated because of Husband’s death and, therefore, the court vacated its
prior divorce decree. This appeal and cross-appeal followed.
2
We first address the issue of whether the Estate has standing to pursue
its appeal. “In evaluating whether a party has standing to sue, we focus on
whether the party suffered a legal injury against which the law was designed to
protect.” In re Estate of Couture, 166 N.H. 101, 105 (2014) (quotation
omitted). Here, the Estate suffered an injury when the trial court abated the
divorce. As the Estate explains in its reply brief, the abatement of the divorce
action removed $250,000 and 45% of a stock interest from the estate. Thus,
the Estate has been aggrieved by the abatement of the divorce action and has
standing to prosecute this appeal. See Acito v. Acito, 898 N.Y.S.2d 133, 134
(App. Div. 2010).
Wife also argues that Husband’s counsel should not have been heard at
the motion hearing because, at that time, the Estate had not yet been opened
and, technically, Husband’s counsel lacked a client. For the purposes of this
appeal, however, we assume without deciding that the trial court did not err by
allowing counsel to participate. See Whitaker v. L.A. Drew, 149 N.H. 55, 59
(2003) (referring to our “emphasis on justice over procedural technicalities”).
We next address whether the trial court erred when it abated the divorce
action. “The general rule is that a divorce action abates upon the death of
either party.” Coulter v. Coulter, 131 N.H. 98, 100 (1988). The reason for this
general rule “is simple. A marriage is personal to the [people] who were
married, and the marriage ends upon the death or the divorce of either
spouse.” Borris, Abatement of Divorce and Ancillary Proceedings Upon the
Death of a Party, 9 No. 2 Divorce Litig. 25, 26 (Feb. 1997). “Since the principal
object of a suit for divorce is the dissolution of the marriage, there is no reason
to render a divorce decree once the marital relation is already ended by death.”
Coulter, 131 N.H. at 100 (quotation and brackets omitted).
We have recognized exceptions to this general rule. See id. at 100-01
(discussing cases). In Hazen v. Hazen, 122 N.H. 836, 838 (1982), for instance,
we held that the parties’ divorce did not abate when the wife died while the
husband’s appeal was pending because “the controversy relate[d] exclusively to
property rights,” and “[t]he parties neither contested nor appealed the validity
of the divorce itself.”
In Tuttle v. Tuttle, 89 N.H. 219 (1938), we concluded that a judgment of
divorce should be entered when, before the husband died, the trial court had
held a hearing on the merits and had rendered a decree of divorce on the
ground of abandonment. Tuttle, 89 N.H. at 219 (preface to opinion), 220-21.
We distinguished between “[t]he rendition of a judgment,” which we termed a
“judicial act,” and “[t]he entry of a judgment,” which we described as “a
ministerial act.” Id. at 220 (quotations omitted). Because, before the husband
died, the trial court had rendered its judgment that a divorce decree should
issue, we concluded that his death did not abate the divorce action and that
3
entry of the divorce decree would further justice. See id. at 219 (preface to
opinion), 220-21.
We last considered the abatement rule in Coulter. In that case, the trial
court had entered a divorce decree nunc pro tunc after the wife had died and
before the trial court had conducted a hearing on the merits of her libel for
divorce. Coulter, 131 N.H. at 98-99. We held that in so doing, the trial court
erred. See id. We explained that allowing the entry of a decree nunc pro tunc
under the circumstances “would amount to a significant expansion of the
doctrine regarding such entries as previously articulated” because, in all of our
prior cases, a hearing had been held and a judgment rendered before the final
decree issued nunc pro tunc. Id. at 101. We held that, particularly given that
the hearing was statutorily required, and, thus, not “a mere formality,” Coulter
was “not equivalent to [a case] where a party has died before judgment, but
after trial and submission of the case.” Id. at 103 (quotation omitted).
The Estate seizes upon this language in Coulter and argues that the trial
court should have entered a decree nunc pro tunc in this case because the
relevant statute no longer requires a hearing, and, therefore, before Husband
died, the parties had submitted the case to the trial court. See RSA 458:7-a
(Supp. 2015) (providing that, in the context of a divorce on the ground of
irreconcilable differences, “[t]he [trial] court’s findings and decree may be based
on oral testimony or written stipulations of the parties”). We disagree.
Although RSA 458:7-a now allows the court to make its findings and
decree “based on . . . written stipulations of the parties,” RSA 458:7-a, the
statute does not abrogate the role of the judge, see Coulter, 131 N.H. at 102.
RSA 458:7-a still requires that both parties be “found to have committed an act
or acts which justify” the divorce. RSA 458:7-a; see Coulter, 131 N.H. at 102.
In addition, RSA 458:7-b (Supp. 2015) still requires the court, before issuing a
final decree, to determine whether “there is a likelihood for rehabilitation of the
marriage relationship,” and, if there is, to “refer the parties to an appropriate
counseling agency.” RSA 458:7-b; see Coulter, 131 N.H. at 102-03.
Moreover, even without a hearing, the court must still review the parties’
stipulation for fairness, and its review is not a “mere formality.” Coulter, 131
N.H. at 103. As the trial court explained, “[p]articularly with the waiver of a
Final Hearing, the [c]ourt’s review and approval of the parties’ Permanent
Stipulation is an important judicial function.” (Emphasis omitted.)
“In a dissolution proceeding, a [trial] court has a duty to protect the
interests of both parties and all the citizens of the state to ensure that the
stipulation is fair and reasonable to all.” In re Marriage of Rettke, 696 N.W.2d
846, 850 (Minn. Ct. App. 2005) (quotation omitted). In deciding whether to
approve the parties’ stipulation, the trial court has to “exercise its independent
judgment to determine whether a stipulation is, on the facts of the case in
4
question, appropriate.” Id. at 851. “In doing so, the [trial] court has the
authority to refuse to accept the terms of the stipulation in part or in toto.” Id.
(quotation and brackets omitted); see Bossi v. Bossi, 131 N.H. 262, 265 (1988)
(explaining that a master in a divorce proceeding has the discretion “to accept
or reject a settlement agreement” based upon the terms of an oral agreement
between counsel). “For this reason, what the parties talked about while both
were living, and incorporated into a private settlement agreement, is not ‘self-
executing.’” In re Marriage of Rettke, 696 N.W.2d at 851.
Here, although the parties had entered into a mediated property
settlement before Husband died, the trial court had not yet “examined[ ] it,
approved it, and incorporated it into a dissolution judgment.” Id. Under these
circumstances, we hold that Husband’s death abated the Wife’s divorce action.
See id. Although the Estate argues that the abatement rule is “anachronous,”
and, therefore, should no longer be followed, we decline its invitation to depart
from our settled precedent. (Capitalization and italics omitted.) We have
reviewed the Estate’s remaining arguments on this issue and conclude that
they do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322
(1993).
The Estate argues, in the alternative, that “[e]ven if the divorce abates,
the parties entered into an enforceable contractual agreement” that remains
enforceable, despite Husband’s death. The Estate has not demonstrated that it
raised this argument in the trial court. See Bean v. Red Oak Prop. Mgmt., 151
N.H. 248, 250 (2004). In the trial court, the Estate argued that abating the
divorce action vitiated the MOU. By contrast, on appeal, the Estate argues that
the MOU survives the abatement of the divorce action. Because the Estate has
not demonstrated that this appellate argument has been preserved, we decline
to review its merits. See State v. Mouser, 168 N.H. ___, ___, 119 A.3d 870, 876-
77 (2015).
We also decline to address the Estate’s argument that an additional basis
“upon which the Divorce Decree could be entered nunc pro tunc” is that the
MOU is “the equivalent of a postnuptial agreement.” As with the Estate’s
argument that the MOU survives abatement, its postnuptial agreement
argument has not been preserved for our review. See Bean, 151 N.H. at 250;
see also J & M Lumber & Constr. Co. v. Smyjunas, 161 N.H. 714, 718 (2011).
Affirmed.
DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.
5