Motion to Dismiss Divorce Because of Husband's Death
In Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex. 1969), the trial court had orally decreed a divorce between husband and wife on May 24th.
Two days later, on May 26th, the husband died.
The wife filed a motion to dismiss the divorce on June 21st stating the court lacked jurisdiction to enter the divorce decree.
The trial court denied the wife's motion and entered a written divorce decree pursuant to its oral orders of May 24th. Dunn, 439 S.W.2d at 831.
Basing its decision upon the authority of Ledbetter v. Ledbetter, 229 S.W. 576 (Tex. Civ. App. - Austin 1921, no writ), the Tyler court of civil appeals reversed the trial court and remanded the case with instructions to dismiss it.
In Ledbetter, the husband died while the trial court's decree of divorce was on appeal. Id. at 577.
The Austin court of civil appeals dismissed the appeal because the property questions which had been appealed were "merely incidental" to the personal issue of the actual divorce of the husband and wife. Id.
The court reasoned that with the death of the husband, the divorce action failed for mootness and that any incidental issues of the dissolution of the marriage itself such as property, should not be considered and that the trial court should dismiss the appeal in its entirety. Id.