PANTER v. PANTER, 499 A.2d 1233 (Me. 1985)

Supreme Judicial Court of Maine.Argued June 7, 1984.
Decided November 7, 1985.

Appeal from the Superior Court, York County.

James M. Dineen, (orally), Kittery, for plaintiff.

Willard Kellis, Robert J. Foley, (orally), Basil L. Kellis, Sanford, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.

NICHOLS, Justice.

The Plaintiff, Annie C. Panter, appeals from a divorce judgment entered June 24, 1983, in the Superior Court, York County, contending that the divorce court erred in denying her motion for findings of fact and conclusions of law. She also assigns error to that court’s division of the marital property between her and her late husband, William J. Panter, Jr., as well as to the court’s failure to award her alimony and attorney’s fees. When the husband’s death occurred in December, 1984, his Personal Representative was substituted as the party Defendant.

When the wife appealed, it had the effect of staying the Superior Court’s judgment of divorce during the pendency of her appeal. M.R.Civ.P. 62(e). With the husband’s death the judgment of divorce[1] — and, of course, the division of marital property as well — became mooted. The power of the court to determine property rights is dependent upon the granting of a divorce to one of the parties. Inasmuch as the entire action thus abated, this cause must be remanded to the Superior Court with instructions to dismiss this cause from its docket.

The entry:

Judgment vacated.

Page 1234

Remanded for further proceedings consistent with the opinion herein.

All concurring.