Atwood v. Atwood

• Decision Date: 18 July 1958
• Docket Number: No. 37226,37226
• Parties: Rachel H. ATWOOD, Respondent, v. William E. ATWOOD, Appellant.
• Court: Minnesota Supreme Court

Page 728

91 N.W.2d 728

253 Minn. 185

Rachel H. ATWOOD, Respondent, v. William E. ATWOOD, Appellant.

No. 37226.

Supreme Court of Minnesota.

July 18, 1958.

Syllabus by the Court.

1. Proceedings to change or modify alimony and child support orders are generally regarded as incidental to the suit in which the order or decree was originally entered and jurisdiction retained.

2. Where court already has jurisdiction of parties and subject matter, and paper actually comes to the hands of the person to be served with notice of motion within the time required for personal service, it is immaterial where it is mailed for it is then equivalent to persanal service.

3. Where the court has such continuing jurisdiction, service by mail, when the defendant is outside the state, is valid.

4. Where a modification of an allowance as to alimony or support money is sought or an application is made to obtain payments under the divorce decree, it should be made in the original suit and not in an independent proceeding, and where notice is not prescribed by statute, the notice need only be such as is reasonably calculated to give the opposing party knowledge of the proceeding and an opportunity to be heard.

5. Where motion papers are deposited in the mails directed to the opposite party or his attorneys under the rule applicable to motion papers, it is presumed that such motion papers were received in due course.

6. Where modification of the decree or enforcement of its provisions is considered a continuation of the original cause or incidental thereto because of jurisdiction retained, the general rule is that service of notice of motion papers may be had on the adverse party's last-named attorney of record; this is more especially the rule where the substance of the matter remains unchanged and the debtor has made himself a non-resident by removal across the state line.

7. The rule that the authority of an attorney implied in his retainer to prosecute or defend an action ceases upon the entry of judgment against his client is not controlling in the situation where the court retains jurisdiction of the parties and the subject matter.

8. In view of the notice of the proceedings herein apparently given to the defendant, no special application to the court for entry of judgment, nor notice thereof to the opposite party was necessary.

9. The questions involved were such that they must rest very largely in the discretion of the trial court and we cannot upon the record submitted say that there has been an abuse of that discretion herein.

Butchart & Fredin, Duluth, for appellant.

Donald O. Wright, Minneapolis, for respondent.

NELSON, Justice.

The initial action in the proceedings here involved (Atwood v. Atwood, 229 Minn. 333, 39 N.W.2d 103) was commenced in the District Court of Hennepin County as an action for separate maintenance, of which that court had original jurisdiction. Defendant appeared by way of a cross bill for absolute divorce. Plaintiff's claim that she was entitled to separate maintenance was dismissed prior to trial, and the trial was had solely on the issue of whether or not defendant was entitled to an absolute divorce. The trial court made findings denying defendant relief and placing custody of the two minor children with plaintiff, the decree being entered February 24, 1948. The decree further provided as follows:

'2. That plaintiff is a fit and proper person to have the permanent care and custody of the two minor children of the parties hereto, and is hereby given such care and custody, with the right on the part of defendant to visit said children at any and all reasonable times and places.

'3. That Five Hundred Dollars ($500.00) per month is a reasonable allowance as permanent alimony and support money for the plaintiff, and the two minor children of the parties to this action; and it is ordered that defendant pay to the plaintiff such amount monthly, until the further order of the Court, for such alimony and maintenance and support.'

Paragraph 4 thereof was amended February 11, 1953, to read as follows:

'That in addition to the sum last mentioned, the defendant pay all reasonable medical and psychiatric attention and services and any special schooling that may be necessary for the welfare of his son Anthony, including the disbursements substantiated by receipts for necessary expenses incurred by plaintiff to travel from Duluth, Minnesota, to Chicago, Illinois, and return for herself and Anthony Atwood when necessary to take him to the Sonia Shankman Orthogenic School he is attending in Chicago, Illinois, or return him to Duluth, Minnesota, for Christmas and summer vacation periods, and in addition thereto the plaintiff shall have such expenses for not to exceed three other trips each year for the purpose of visiting her son Anthony Atwood while attending said Sonia Shankman Orthogenic School at Easter, Thanksgiving and on his birthday in accordance with the recommendation of Dr. Bettelheim of said Sonia Shankman Orthogenic School. That such special schooling expense shall also include the Christmas donation expected or required by said school.'

The minor son Anthony, who it appears was substantially handicapped, had been placed and maintained in the Sonia Shankman Orthogenic School for handicapped children at Chicago.

It appears from plaintiff's affidavit filed December 12, 1956, in support of her motion to recover certain visitation expenses under amended paragraph 4 of the decree that she had not been paid for visitation trips in May 1955, in January 1956, and in May 1956, which visits all occurred while Anthony remained at the Chicago school. In June 1956, upon the advice of the physicians assigned to care for Anthony, plaintiff had to make a trip to establish said child at the Manumit School at Bristol, Pennsylvania. It further appears from her affidavit that she incurred travel and visitation expenses for another trip in August 1956 when she brought Anthony back to Duluth. It also appears that she cared for Anthony in Duluth for some period of time until he returned to the Manumit School, incurring expenses in connection therewith. Anthony was returned to the Manumit School in October 1956 without expense to plaintiff. Plaintiff states that she presented receipts as to the first unpaid items of expense to substantiate them, but defendant refused and neglected to pay and refused and neglected to return the receipts. She further states that she has no funds except as provided by the judgment and decree of the court and that she has been forced to borrow money to finance this supervision of Anthony.

Defendant has taken the position on this appeal that amended paragraph 4 does not apply after Anthony left the Chicago school and that it does not include the transfer and maintenance at the Manumit School, although the record is silent as to any dispute over making the change, which was upon the advice of Anthony's physicians. Garber v. Robitshek, 226 Minn. 398, 33 N.W.2d 30. Plaintiff's notice of motion provided for a hearing thereon at a special term of the Hennepin County District Court on December 19, 1956. The hearing on the motion was continued to January 4, 1957, and there was no appearance by the defendant. The court found plaintiff entitled to $2,241.07 as expended pursuant to the terms of the divorce decree as amended, and judgment was entered for that amount. Thereafter the defendant engaged the services of a Minnesota attorney, Conrad M. Fredin of Butchart and Fredin, to appear specially to move the court for an order vacating and setting aside said judgment on the sole ground that no service of process was ever made upon defendant and that such entry of a judgment is contrary to the rights of said defendant as set forth in U.S.Const. Amend. XIV and in Minn.Const. art. 1, § 7, M.S.A.

It appears that defendant has resided in the State of Arizona, remitting the $500 monthly payments as permanent alimony and support money for the plaintiff and and two minor children of the parties by mail from Tucson. It also appears that since the decree he has not made himself available to personal service of process. Plaintiff's notice of motion herein was served upon his last-known attorneys of record in the proceedings herein, Messrs. Butchart and Fredin, 1401 Alworth Building, Duluth 2, Minnesota, by depositing the same in the mail on December 12, 1956. It was duly received at their office on December 13, 1956. In addition thereto plaintiff's attorney obtained a notice of continuance of the hearing from December 19, 1956, to January 4, 1957, which was deposited in the mails on December 28, 1956, addressed to the defendant c/o General Delivery, Tucson, Arizona, and to his last-known Arizona attorneys in said matter, Hall, Catlin & Molloy, 1013 Valley National Building, Tucson, Arizona.

Defendant's attorneys on this appeal had been engaged to represent the defendant in the aforesaid proceedings in September 1955 to resist a motion of the plaintiff for an additional modification of the divorce decree and to support a motion of the defendant for a modification of the divorce decree. Both motions were heard before the district court and relief was denied to both parties by an order dated February 23, 1956. Defendant's Minnesota attorneys in connection with those proceedings caused notice of such orders to be served upon those who were then engaged as attorneys for the plaintiff on March 23, 1956.

Attached to defendant's notice of motion in support of his special appearance is an affidavit of his attorney Mr. Fredin wherein it is stated that subsequent to March 23, 1956, affiant's engagement as attorney for defendant in the above-entitled proceedings was in all respects completed and terminated. Mr. Fredin also states that shortly after receiving the motion papers on December 13, 1956, he replied by mail to plaintiff's counsel declining to accept service on the ground that his engagement as...