Supreme Court of Texas

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No. 22-0242

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Eve Lynn Baker, 

Petitioner, 

v.

Terry Lee Bizzle, 

Respondent

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On Petition for Review from the

Court of Appeals for the Second District of Texas

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JUSTICE LEHRMANN, joined by Justice Busby and Justice Young, 

concurring. 

The parties present the Court with a binary option: either the 

trial court’s email to the parties before Baker’s death qualified as a 

rendition of judgment dividing the parties’ marital estate and the 

divorce decree should be affirmed in its entirety, or the email did not 

qualify as a rendition and the court of appeals correctly dismissed the 

entire divorce action as moot. The Court agrees with Bizzle and the 

court of appeals and dismisses the entire divorce action as moot. I too 

agree with Bizzle’s premise—the email was not a public announcement 

of the trial court’s decision and thus did not suffice as a rendition with 
2 

respect to the property division. Further, I agree with the Court that 

Baker’s death mooted the need for a just-and-right division of the

marital property. Ante at 14. 

However, I would add that the parties’ marital status, orally 

pronounced by the trial court before Baker’s death, became final upon 

her death. The law does not, and we should not, mandate the retroactive 

“undoing” of this status adjudication. However, neither party sought a 

judgment solely on the parties’ status; in fact, both parties took the 

position at oral argument that the status adjudication of a divorce and 

the property division incidental to a divorce are inseverable and that the 

status adjudication could not survive Baker’s death without a property 

division. Thus, it would be improper for the Court to grant such relief. 

I therefore concur in the Court’s judgment and join its opinion, but I 

write separately on this important issue. As discussed below, when a 

trial court with jurisdiction grants a divorce but later loses jurisdiction 

to divide the marital estate, the judgment of divorce may remain intact 

despite the dismissal of the collateral issues.

I 

A suit for dissolution of marriage presents several issues for 

resolution by the trial court, including the status of the parties, see TEX.

FAM. CODE §§ 6.001–.007, and a “just and right” division of the marital 

property, see id. § 7.001.1 When a party to a divorce proceeding dies 

1 If necessary, issues involving child conservatorship and support 

obligations are also a mandated part of a divorce proceeding. TEX. FAM. CODE

§ 6.406(b) (“If the parties are the parents of a child, . . . and the child is not 
3 

before the trial court has resolved any of those issues, the unsurprising 

result is dismissal on mootness grounds. Whatley v. Bacon, 649 S.W.2d 

297, 298 (Tex. 1983). But what happens if a party dies after the trial 

court has expressly rendered judgment on the status question? 

Although that order is technically interlocutory because it does not 

dispose of all claims and all parties, the status adjudication is finalized, 

rather than subject to dismissal, by one party’s death. 

Conceptually, it helps to sort the pertinent “claims” in a divorce 

into two buckets: the first encompasses the adjudication of the parties’ 

legal status (i.e., their status as married or divorced), and the second 

encompasses collateral matters (i.e., property division and SAPCR 

issues). The Family Code understandably requires the issues in both 

buckets to be addressed in a final decree. See TEX. FAM. CODE § 7.001. 

Without a division of the marital estate, the property is left without clear 

legal ownership—bad for the parties and bad for society. The two 

buckets are bound together in the Family Code because it would be both 

inefficient and impractical to allow parties to be divorced without a clear 

grasp of who owns what.

Those practical considerations fall away when a party dies after 

the rendition of divorce but before the rendition of the property division. 

In that case, the deceased party’s estate immediately vests in her

under the continuing jurisdiction of another court . . . , the suit for dissolution 

of a marriage must include a suit affecting the parent–child relationship . . . .”). 

A Suit Affecting the Parent-Child Relationship (“SAPCR”) was not necessary 

in the divorce proceeding at issue.
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devisees or heirs.2 See TEX. EST. CODE §§ 101.001–.002. And the 

deceased party’s status as married or divorced at the time of death can 

have a significant effect on distribution of her estate. For example, if a 

person gets divorced after making a will, then the will’s provisions are

read as if the former spouse had failed to survive her, unless the will 

expressly provides otherwise. Id. § 123.001(b)(1). A divorce also revokes 

provisions in certain trust instruments executed by the deceased person 

before the divorce. Id. § 123.052. Intestacy laws apply differently 

depending on whether the deceased person left a surviving spouse. Id.

§ 201.001–.003. Nontestamentary assets are likewise affected; the 

Family Code places conditions on the validity of a provision in a life 

insurance policy issued before a divorce naming the former spouse as a 

beneficiary. TEX. FAM. CODE § 9.301.

We stated in Dunn v. Dunn that a spouse’s death following 

rendition of a divorce judgment does not moot the case, which may be 

appealed, because “the property rights of the parties would be 

significantly affected depending upon whether the marriage was held to 

have been terminated by divorce decree or by death.” 439 S.W.2d 830, 

2 Because the parties’ community property is not divided in the divorce

in this scenario, they may be treated as tenants in common or joint owners of 

that property for purposes of evaluating the deceased party’s estate. See S.C. 

v. M.B., 650 S.W.3d 428, 440 (Tex. 2022); see also Busby v. Busby, 457 S.W.2d 

551, 554 (Tex. 1970) (“It is well settled that where, as here, a divorce decree 

fails to provide for a division of community property, the husband and wife 

become tenants in common or joint owners thereof.”). While the Family Code 

contains an alternative mechanism for obtaining a just and right division of

property not divided in the original divorce decree, see TEX. FAM. CODE § 9.201, 

as noted, the need for such a division is mooted when one of the parties dies, 

as happened here; thus, Section 9.201 is not implicated. 
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834 (Tex. 1969) (noting that either the living spouse or a representative 

of the deceased spouse could have attacked the judgment for error under 

the predecessor to Texas Rule of Appellate Procedure 7.1(a), which 

provides that “[i]f a party to a civil case dies after the trial court renders 

judgment but before the case has been finally disposed of on appeal, the 

appeal may be perfected, and the appellate court will proceed to 

adjudicate the appeal as if all parties were alive”). Although the spouse 

in Dunn died after the trial court had divided the property, our 

reasoning for rejecting mootness in that case applies equally to the 

situation before us, where a spouse died after the rendition of divorce 

but before rendition of the property division. 

Further, although divorce and property-division claims are 

inseverable for some purposes, they are not inseverable for all purposes. 

In Dawson-Austin v. Austin, we addressed the not-uncommon situation 

in which the trial court presiding over a divorce proceeding lacks 

personal jurisdiction over one of the spouses. 968 S.W.2d 319 (Tex. 

1998). The trial court denied the wife’s special appearance and signed 

a final decree, and the court of appeals affirmed. Id. at 321. In this 

Court, the husband argued in pertinent part that the special appearance 

was properly denied because it was “well settled in this State that the 

division of a marital estate is not a claim severable from the rest of a 

divorce proceeding.” Id. at 324. Thus, he contended, the wife’s special 

appearance to an inseverable portion of the proceeding constituted a 

general appearance. Id. 

We rejected that categorical understanding of the so-called “well 

settled” rule, noting that the cases cited for complete inseverability of a 
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divorce adjudication and division of the marital estate all did so in the 

context of Texas Rules of Civil Procedure 41 (Misjoinder and 

Non-Joinder of Parties), 174 (Consolidation; Separate Trials), and 320 

(Motion [for New Trial] and Action of Court Thereon). Id. In fact, we 

stated explicitly that “[n]o case holds that claims of divorce and division 

of property do not involve severable jurisdictional issues.” Id. 

To the contrary, we explained, “a court [may] have jurisdiction to 

grant a divorce—an adjudication of parties’ status—without having 

jurisdiction to divide their property—an adjudication of parties’ rights.” 

Id. (citing Estin v. Estin, 334 U.S. 541, 549 (1948)); see also TEX. FAM.

CODE § 6.308(a) (“A court in which a suit for dissolution of a marriage is 

filed may exercise its jurisdiction over those portions of the suit for 

which it has authority.”).3 In remanding the case, we instructed the trial 

court to render judgment divorcing the parties and dismissing all other 

claims for want of jurisdiction. Dawson-Austin, 968 S.W.2d at 328. 

Because the claims involved “severable jurisdictional issues,” a 

judgment granting the divorce but not dividing the property was 

perfectly valid. Id. at 324.

3 This holding is consistent with the well-settled understanding that 

divorce proceedings implicate both in rem and in personam jurisdiction. See, 

e.g., Dosamantes v. Dosamantes, 500 S.W.2d 233, 236 (Tex. App.—Texarkana 

1973, writ dism’d) (“Divorce actions are not mere in personam actions, but are 

quasi in rem.” (citing Williams v. North Carolina, 317 U.S. 287 (1942))). An 

action in rem “determin[es] the status of a thing, and therefore the rights of 

persons generally with respect to that thing.” In rem, BLACK’S LAW 

DICTIONARY (11th ed. 2019); City of Conroe v. San Jacinto River Auth., 602 

S.W.3d 444, 458 (Tex. 2020) (“An in rem action affects the interests of all 

persons in the world in the thing. . . .”). In a divorce proceeding, the “thing” is 

the marriage, and the trial court adjudicates the status of that marriage.
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This case presents a different kind of jurisdictional problem, but 

in my view, the result is the same. The trial court’s pronouncement of 

divorce should not cease to have legal significance because of the 

subsequent death of a party. The party’s death can and should finalize 

and sever the judgment of divorce from the mooted remaining issues. As 

the Court correctly notes, Baker’s estate did not go away; it must be 

distributed to her heirs. Ante at 14 n.33. And when a person’s status at 

their death is divorced, their property should be dispersed in accordance 

with that status.

II

Divorce proceedings are certainly personal—both in a colloquial 

and legal sense. Accordingly, the trial court could not divide Baker and 

Bizzle’s marital property pursuant to the Family Code after Baker’s 

death. However, the lack of jurisdiction to divide the marital estate 

because the claim became moot does not legally or logically invalidate 

the prior status adjudication of the parties—the trial court had 

jurisdiction to render the parties divorced and did so. Still, because 

neither party requested entry of judgment divorcing the parties without 

a corresponding property division, and neither party requests that we 

order the trial court to grant such relief, I concur in the Court’s 

judgment.

 

 Debra H. Lehrmann

 Justice

OPINION FILED: March 1, 2024