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Kelly v. Kilts

November 23, 2010

RONALD D. KELLY, APPELLANT (DEFENDANT),
v.
DUSTIN KILTS, PERSONAL REPRESENTATIVE OF THE ESTATE OF ROXIE CAROL KELLY, DECEASED, APPELLEE (PLAINTIFF).



Appeal from the District Court of Natrona County, The Honorable Scott W. Skavdahl, Judge.

The opinion of the court was delivered by: Kite, Chief Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

[¶1] Roxie Carol Kelly filed a complaint for divorce from her husband, Ronald D. Kelly. Mr. Kelly filed an answer in which he stated that he did not object to the divorce being awarded to Mrs. Kelly. Six days later, Mrs. Kelly filed a motion requesting an emergency hearing, alleging she was in the hospital in critical condition and wanted the divorce finalized before she died. After efforts to schedule a hearing with Mr. Kelly's attorney were unsuccessful, the district court entered a divorce decree awarding Mrs. Kelly a divorce and retaining jurisdiction to equitably divide the marital estate at a later date. Mr. Kelly filed a motion to set aside the decree, which the district court denied, and Mr. Kelly appealed the decree to this Court. We affirm.

ISSUE

[¶2] Mr. Kelly presents the following issue on appeal:

Did the trial court commit reversible error when it prepared and entered the Decree of Divorce on September 15, 2006, without a hearing and notice to the parties in violation of Rules 12(c), 56(c), and 6(c), W.R.C.P., and in violation of [Mr. Kelly's] right to due process?

FACTS

[¶3] The parties were married in 1977. They had no children together. Mrs. Kelly filed her complaint for divorce on August 9, 2006. Mr. Kelly filed an answer to the complaint on September 8, 2006, in which he affirmatively stated "that either party could be awarded a divorce under the circumstances, but [he did] not object to [Mrs. Kelly] being awarded the divorce as the filing party." In his prayer for relief, he asked the court to enter an order "[a]warding [Mrs. Kelly], as the filing party, a divorce."

[¶4] Six days later, on September 14, 2006, Mrs. Kelly filed a motion for emergency hearing. The motion alleged that Mrs. Kelly was hospitalized in intensive care and had spoken with friends and relatives about wanting to obtain her divorce "now" because she did not want Mr. Kelly making health care decisions for her or, in the event of her death, inheriting her share of the marital property. The motion further alleged that in the event of her death Mrs. Kelly wanted any property she owned to go to her family.

[¶5] By decree entered September 15, 2006, the district court awarded Mrs. Kelly a divorce. The decree stated that the court attempted to schedule an emergency hearing with Mr. Kelly's attorney before entering the decree but he was unable to appear in court at any of the times discussed. The decree further stated that both parties acknowledged irreconcilable differences had arisen between them and "due to the immediacy of the issue and the fact that [Mr. Kelly] agreed that a divorce should be granted, it is in the best interest of the parties that a decree of divorce be granted and [Mrs. Kelly], as the filing party, should be awarded a divorce." The Court retained jurisdiction over the parties and the subject matter to address all other issues, including the division of the marital estate.

[¶6] On September 19, 2006, Mr. Kelly filed a motion to set aside the decree. He asserted the district court entered the decree without proper notice or hearing in violation of W.R.C.P. 6(c) based upon an unverified motion containing inadmissible hearsay without giving him time to respond or file a motion to amend his answer. He further asserted the entry of the decree violated his right to due process. Along with the motion, Mr. Kelly filed motions to amend his answer to request that he be awarded a divorce and for appointment of a guardian ad litem to represent Mrs. Kelly's interests in the proceedings.

[¶7] Mrs. Kelly died on September 19, 2006. After her death, Mr. Kelly supplemented his motion to set aside the decree, asserting that its entry deprived him of significant property he and Mrs. Kelly held as tenants by the entireties which, but for the divorce, would have passed to him as surviving spouse.*fn1 Dustin Kilts, as personal representative of Mrs. Kelly's estate, filed a motion to be substituted for Mrs. Kelly in the district court proceedings, which motion the district court granted. After a hearing, the district court denied Mr. Kelly's motions to set aside the decree, amend his answer and appoint a guardian ad litem.

[ΒΆ8] The district court subsequently convened a hearing for purposes of taking evidence on the issue of dividing the marital property. Following the hearing, the court entered an order dividing the marital property. Mr. Kelly timely appealed to this Court. The notice of appeal states that the appeal is ...


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