specially concurring:
While I have no quarrel with the colorful proposition that parties “ ‘cannot blow hot and cold in a lawsuit’ ” (95 Ill. 2d at 478), I find it to be neither here nor there in this lawsuit. I believe that the result reached by the majority is correct, but that there is a less circuitous route to it than that taken by the majority.
The majority (and, unfortunately, Mrs. Davies as well) mistakenly assumes that an action to distribute marital property subsequent to a dissolution of marriage abates when one of the spouses dies. This assumption is drawn from cases which hold that actions for dissolution of marriage abate upon the death of one spouse. Whether phrased in terms of mootness (Tuttle v. Gunderson (1930), 341 Ill. 36) or abatement (Bushnell v. Cooper (1919), 289 Ill. 260; Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204; In re Estate of Chandler (1980), 90 Ill. App. 3d 674), the rationale of these cases is that the death of one of the parties to a marriage extinguishes the subject matter of a dissolution action and removes all cause for complaint: the death of a spouse “settle[s] the question of separation beyond all controversy” (Bushnell v. Cooper (1919), 289 Ill. 260, 264; Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 210). This rationale does not apply to property settlements in the case of a bifurcated dissolution such as the one at bar, where a judgment of dissolution is entered by the court before the death occurs and all that remains to be done at the time of the death is to distribute the marital property. The subject matter of the action for distribution of the property is the property, not the parties to the marital relationship, and there remain two adverse claimants to the property, the surviving spouse and the estate of the deceased spouse. The death extinguishes nothing; it merely substitutes one adverse party (the estate) for another (the decedent). The property continues to exist, while the controversy concerning its ownership continues. The controversy concerning the marital property in this case was a live one between two interested parties and should have been ruled on in a formal manner accordingly.
Rather than approaching the case in this way, the majority chooses to treat the trial court’s opinion letter regarding division of the property as a final judgment, thereby accomplishing what it no doubt sees as justice to the parties. This, in my opinion, is needlessly elaborate, and it involves the court in awkward comparisons and in speculation of a kind in which it would not normally engage. The majority asserts that “where, as in this case, [the opinion letter] is presumably the result of the judge’s thorough consideration of the evidence, the law and the briefs of the parties, the likelihood of prejudgment or post-judgment changes is quite remote — substantially more remote, we believe, than the possibility of a judge’s modification of a jury verdict, the propriety of which the judge has had no opportunity to consider prior to its rendition.” (95 Ill. 2d at 480.) This sweeping statement carries conviction only if we believe that juries ordinarily do not give the same thorough consideration to the evidence and the law that judges do, and only if there is evidence in the instant case to indicate that the trial judge either intended his opinion letter to be a final determination of the rights of the parties or was not accustomed to changing his mind, even on the basis of new evidence. Either assumption by this court would be unfounded and unseemly. Juries are the triers of all issues of fact in cases in which they are empaneled, and they act on the basis of detailed instructions by the trial judge as to questions of law. They are expected to consider all of the evidence and all of the legal instructions, and I see no reason to believe that they do not live up to that expectation in the vast majority of cases. Similarly, I believe that it sells the trial judge in this case short to assume that he would not change his mind no matter what happened. I see no evidence to support such speculation, and I believe that, in the absence of evidence which clearly indicates that a judge intends an opinion letter to the parties to reflect his final judgment, justice is best served by presuming such a letter to be intended merely as a temporary resolution subject to modification until it is formally entered and recorded as the court’s decision. People ex rel. Schwartz v. Fagerholm (1959), 17 Ill. 2d 131; Commonwealth Loan Co. v. Baker (1966), 67 Ill. App. 2d 359; see Berzana v. Mezyk (1980), 86 Ill. App. 3d 824.
While I agree with the result the court reaches in this case, I am disturbed not only by the logic the court has used in reaching that result but also by the emphasis that is placed on the existence of the opinion letter. What if by chance there had been no opinion letter, perhaps because the trial judge had decided to issue a definitive rather than a temporary ruling and to give it the extended consideration he felt such a resolution would require? Would the property-settlement action have abated had Mr. Davies died before the judge issued his final judgment, leaving Mrs. Davies without recourse against either the marital assets or the estate as a result of the trial court’s earlier order declaring her to be no longer the wife of Mr. Davies? The answer that is implied by the majority opinion is “yes.” As I have pointed out, however, there is nothing in the law which commands such an unfair and illogical result, and I can conceive of no reason to assume without some discussion or analysis that the legislature, in enacting section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 401(3)), intended or even contemplated that such a risk would attend a bifurcated dissolution. I would hold in this case that the property-settlement action did not abate, but would omit all reference to the opinion letter, for I think such reference is both unnecessary and misleading.