Biedron v. Biedron

• Decision Date: 03 March 1958
• Docket Number: No. 18862,18862
• Citation: 128 Ind.App. 299,148 N.E.2d 209
• Parties: Anna BIEDRON, Appellant, v. Michael BIEDRON, Appellee.
• Court: Indiana Appellate Court

Page 209

148 N.E.2d 209

128 Ind.App. 299

Anna BIEDRON, Appellant, v. Michael BIEDRON, Appellee.

No. 18862.

Appellate Court of Indiana, In Banc.

March 3, 1958.

Sevald & Sevald, Hammond, for appellant.

Joseph L. Skozen, Hammond, for appellee.

PFAFF, Judge.

Appellee was awarded a divorce from appellant and appellant was awarded the custody of the minor child of the parties. The court ordered that appellee pay into the office of the Clerk of the Lake Superior Court the sum of $27.50 semi-monthly for the support of the child. Appellant and the child are and were at all times residents and nationals of Poland.

As the payments accrued and were made, the Clerk of the court issued his checks to appellant therefor drawn on the Commercial Bank of Crown Point, Indiana. Appellant was unable to cash these checks on a foreign exchange in Poland. Thereafter, appellant appointed Euzebiusz Chyla, Vice-Consul of the Republic of Poland, now Polish People's Republic, as her attorney-in-fact, and filed her petition requesting an order that the Clerk pay the aggregate sum represented by such checks upon the surrender of the checks to said attorney-in-fact and that all future checks be made payable to him instead of to her individually.

Appellee filed what was designated as a petition to intervene in which he alleged that appellant and the child will not receive the benefit of the funds in the hands of the Clerk due to the regulations of the Republic of Poland, but that said funds will be retained by the Polish government and the person to whom the remittance is to be directed would receive about twenty percent of the actual or full value of an American dollar and the remainder, in effect, would be confiscated by the Polish state. The prayer of this petition is as follows:

'Wherefore, petitioner prays that the Court authorize and order the Clerk to pay all funds held by him for the use of the child, and that the order be modified so that the plaintiff be ordered to send articles of necessity directly to the defendant for the use of the child.'

The court, after a hearing, entered an order that,

'Comes now the defendant and appears by her attorney, Dominic P. Sevald and comes now the plaintiff and appears by his attorney, Joseph L. Skozen, and the petition of defendant for order to pay support money heretofore paid by plaintiff to be paid to the defendant's attorney in fact and the petition to intervene and vacate the order of support order and reimbursement of funds paid by the plaintiff to the clerk on said support order, is now submitted for hearing and determination, and the plaintiff's and defendant's petitions are now submitted as evidence and a certain letter addressed to Ray J. Madden, Congressman of the First Congressional District of Indiana, by the Department of State of the United States, dated November 29, 1954, concerning remittances to residents of the Republic of Poland, showing that such remittances are in effect confiscated by the Republic of Poland, the court now denies the defendant's petition and grants the plaintiff's petition and vacates the order of support heretofore entered in said cause and the Clerk is now ordered to pay and refund to the plaintiff all funds held by him, paid by the plaintiff pursuant to said support order.'

The appellant thereupon filed a motion to vacate, which motion and ruling is as follows:

'Comes now the defendant, Anna Biedron and respectfully shows to the court, as follows:

'1. That this honorable court on October 2nd, 1953 made and entered in this cause, which was an action for divorce, an order against the plaintiff herein requiring him to pay into the office of the Clerk of this court for support of parties' minor child, Adam Biedron, born January 10th, 1940, the sum of Twenty-seven Dollars and Fifty Cents ($27.50) semi-monthly, on the 1st and 15th days of each month, first payment of Twenty-seven Dollars and Fifty Cents ($27.50) to commence on the 15th day of October, 1953, and that the court then also awarded to this defendant the care and custody of said child, as more fully appears in Order Book 50, page 81, of this court.

'2. That pursuant to said order of this court, the plaintiff did make payments for said purpose to the Clerk of the court, aggregating the sum of Eight Hundred Eighty Dollars ($880.00).

'3. That, accordingly, the Clerk of the court did issue to this defendant his private checks aggregating the sum of Six Hundred Sixty Dollars ($660.00), paid to the Clerk up to the time of filing her petition herein on November 10th, 1954, which checks this defendant returned to the Clerk of the court on November 10th, 1954, for the reasons mentioned in her said petition; that the difference between Six Hundred Sixty Dollars ($660.00) and Eight Hundred Eighty Dollars ($880.00) was accumulated and was paid by the plaintiff into the office of the Clerk of this court for said purposes in compliance with said order of the court between the time of filing of said petition and filing of plaintiff's petition to intervene, on April 1st, 1955.

'4. That this honorable court on July 1st, 1955 on the issues so presented upon petition of this plaintiff filed on November 10th, 1954 and the petition filed on April 1st, 1955, entered the following order:

"Comes now the defendant and appears by her attorney, Dominic P. Sevald, and comes now the plaintiff and appears by his attorney, Joseph L. Skozen, and the petition of the defendant for order to pay support money heretofore paid by plaintiff to be paid to the defendant's attorney-in-fact and the petition to intervene and vacate the order of support and reimbursement of funds paid by the plaintiff to the Clerk on said support order is now submitted for hearing and determination, and the plaintiff's and defendant's petitions are now admitted as evidence and a certain letter addressed to Ray J. Madden, Congressman of the First Congressional District of Indiana by the Department of State of the United States dated November 29th, 1954, concerning remittances to residents of the Republic of Poland showing that such remittances are in effect confiscated by the Republic of Poland. The court now denies the defendant's petition and grants plaintiff's petition and vacates the order of support hertofore entered in said cause and the Clerk is now ordered to pay and refund to the plaintiff all funds held by him paid by the plaintiff pursuant to said support order. All of which is so ordered this 1st day of July, 1955.' as same fully appears in Order Book 54, page 200 of this court.

'5. That said last mentioned order was made and entered on the alleged sole ground, namely, because of certain communication (letter) received by the presiding Judge of this court, the Hon. Anthony B. Roszkowski, consisting of a letter addressed to Ray J. Madden, Congressman, First Congressional District of Indiana, by the Department of State of the United States, dated November 29th, 1954, concerning remittances to residents of the Republic of Poland, showing that such remittances are in effect confiscated by the government of Poland, specifically referred to in said order, and based upon no other evidence, ground or reason.

'6. That this defendant, Anna Biedron, has, since said order of support was entered herein on October 2nd, 1953, continuously, up to the present time and now does have the care and custody of said minor child of the parties to this proceeding and has, throughout said period of time furnished and furnishes all the necessities of life for said child, including care, all food, clothing, shelter and education, much in excess in value in dollars and cents than provided in said order of October 2nd, 1953, and, therefore, under the laws of the State of Indiana has an interest in said funds paid into the office of the Clerk of the court, aforesaid.

'Wherefore, she prays and moves the court to vacate and set aside its order of July 1st, 1955, for the following reasons and upon the following grounds:

'1. Because the court was without jurisdiction to then enter such an order upon the pleadings then presented;

'2. Because the order, as entered, is contrary to law and is not sustained by sufficient evidence;

'3. Because the order, as entered, is tantamount to an order of confiscation and deprivation of vested property rights of this defendant in violation of the laws of the State of Indiana and the United States and the world at large, in such a case made and provided;

'4. Because confiscation by the Republic of Poland of this defendant's vested property rights, is no ground or justification for like confiscation by judgment of this honorable court, but to the contrary, it is greatly in violation of her rights under a democratic form of government of the United States of America, because 'two wrongs do not constitute one right', a principle as old as life itself.

'5. Because confiscation if it exists, by the Republic of Poland, of which this petitioner is not aware, of this defendant's vested property rights, at most, constitutes a ground for this defendant's protection and preservation by this honorable court of this defendant's vested property rights in the funds in question; and

'This defendant further prays and moves the court to reinstate the support order of October 2nd, 1953 for the following reasons:

'1. Because the ground for which it was vacated is neither a legal nor an equitable ground for setting aside an order, and because no valid ground exists for such an order to be vacated;

'2. So that plaintiff may be required to fulfill his obligation and sacred duty imposed by law, namely, to support his minor child, Adam Biedron, no matter where he may be found;

'And, lastly, defendant prays and moves the court that if in its judgment the government of the Republic of Poland will confiscate her vested property rights in said funds aforesaid, that said order of July 1st, 1955 be further modified, in this: That this honorable ...