Black v. Black

• Decision Date: 09 August 1977
• Docket Number: No. 75-270-A,75-270-A
• Citation: 119 R.I. 127,377 A.2d 1308
• Parties: Virginia BLACK v. Andrew BLACK. ppeal.
• Court: Rhode Island Supreme Court

Page 1308

377 A.2d 1308

119 R.I. 127

Virginia BLACK v. Andrew BLACK.

No. 75-270-Appeal.

Supreme Court of Rhode Island.

Aug. 9, 1977.

[119 R.I. 140] Henry H. Katz, Pawtucket, for plaintiff.

Gorham & Gorham Inc., Arthur M. Read, II, Providence, for defendant.

OPINION

JOSLIN, Justice.

This civil action was brought in the Superior Court to recover sums allegedly due on two judgments of the Supreme Court of New York for alimony arrearages. The plaintiff's motion for summary judgment was granted and the defendant appeals.

The facts are somewhat complicated and are perhaps most easily comprehended if related chronologically. The starting point is a divorce action between the parties both then New York residents wherein the Supreme Court of New York, Rockland County, in March 1973 entered a decree granting plaintiff-wife's petition for a divorce and ordering defendant-husband to pay her alimony of $105 per week. Following the divorce, defendant left New York for Southbridge, Massachusetts, where he now resides; plaintiff remains a New York resident.

By September 1973, defendant had fallen behind in his alimony payments and plaintiff, resorting to § 244 of the New York Domestic Relations Law, moved "by order to show cause" in the New York Supreme Court for entry of a money judgment for unpaid alimony for the period March 7 to September 19, 1973 and for a counsel fee. The defendant did not appear and defend, and a default judgment of $3,200 ("the first New York judgment") was entered against him.

Next in the chronology came the present action, which was commenced on March 6, 1974 by the filing of a complaint in the Superior Court in which plaintiff sought to recover the amount due on the first New York judgment plus the unpaid alimony that had accrued since September 19, 1973. Appended to the complaint is a certified copy of the first New York judgment, which recites that there had been "due proof of service upon (defendant) ANDREW BLACK." Coincident with the filing of her complaint, plaintiff moved ex parte for leave to attach certain real estate owned by defendant and located in the town of Scituate. ¹ That motion was granted without notice to defendant and without affording him an opportunity to be heard, and a writ of attachment issued with an ad damnum of $7,000. The sheriff's return in the case discloses that he sent copies of the complaint, the summons, the order granting the motion to attach and the writ of attachment to defendant at his home in Massachusetts by certified mail.

Thereafter, defendant, stating that he was appearing specially for the purpose of attacking jurisdiction, moved to dismiss the action for lack of jurisdiction. When that motion was denied, defendant answered the complaint. Before doing so, however, he conveyed all of his remaining interest in his Rhode Island real estate to a Massachusetts trustee.

Before the action then pending was heard, plaintiff, in September 1974, obtained another judgment against defendant in the Supreme Court of New York ("the second New York judgment"). This judgment was for $4,135, representing unpaid alimony for the period from September 19, 1973 to June 5, 1974 plus a counsel fee, and it recites that defendant's counsel had filed an affidavit in opposition thereto.

Next, plaintiff, with leave of court, filed a supplemental complaint based upon the second New York judgment. The defendant's answer to that complaint included, inter alia, a jurisdictional attack on the ground that the intervening conveyance of his Rhode Island real estate had terminated the Superior Court's jurisdiction over that property with respect to any claims not included in the original complaint. Thereafter, the court granted plaintiff's motion for summary judgment in the amount of $7,335, the total of the two New York judgments. The defendant then appealed.

Initially, defendant contends that the ex parte attachment of his property violated his right to due process under the fourteenth amendment to the Federal Constitution. If that position can be sustained, then, of course, the Superior Court acquired no jurisdiction over defendant's property, and his motion to dismiss on jurisdictional grounds should have been granted.

The attachment that defendant attacks was effected pursuant to G.L. 1956 (1969 Reenactment) § 10-5-2, as amended by P.L. 1973, ch. 109, § 1. That statute was enacted to bring our attachment procedures in line with the mandates of Sniadach v. Family Fin. Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and, while it prescribes notice to a defendant and an opportunity to be heard as prerequisites to a valid prejudgment attachment, ² it expressly exempts postjudgment attachments from that requirement. ³ The defendant asserts, however, that the Legislature could not constitutionally exempt postjudgment attachments from the hearing and notice requirements and that, even if it could, the exemption would be valid only with respect to domestic, not foreign, judgments. ⁴

We need not address those arguments, however, because the question here is not the constitutionality of ex parte postjudgment attachments in general, but the constitutionality of an ex parte postjudgment attachment made for the purpose of securing quasi in rem jurisdiction in the Superior Court. That issue was settled long ago in Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921). In that case the Court upheld the acquisition of quasi in rem jurisdiction by means of an attachment of a nonresident's property without prior notice or an opportunity to be heard. Id, at 98-99, 110-12, 41 S.Ct. at 434, 438, 65 L.Ed. at 840-41, 846. Of course, many due process concepts have changed substantially since Ownbey was decided. But in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) in which the Florida and Pennsylvania prejudgment replevin procedures were held unconstitutional the Court said that "(t)here are 'extraordinary situations' that justify postponing notice and opportunity for a hearing." Id. at 90, 92 S.Ct. at 1999, 32 L.Ed.2d at 575. Then, citing the Ownbey case with apparent approval, it went on to indicate that the attachment of property without prior notice and hearing was one of those situations when it was "necessary to secure jurisdiction in state court clearly a most basic and important public interest." Id. at 91 n. 23, 92 S.Ct. at 199 n. 23, 32 L.Ed.2d at 576 n. 23 (emphasis added). Thus, although the rationale of Ownbey may not be in accord with some current judicial thinking, its holding has not been questioned and is therefore controlling here. Consequently, the attachment of defendant's real estate on the original complaint for the purpose of securing quasi in rem jurisdiction, though without prior notice and hearing, did not deprive him of property without due process of law.

Another jurisdictional objection pressed by defendant is that the disposal of his interest in the attached Rhode Island real estate prior to plaintiff's filing the supplemental complaint deprived the Superior Court of a basis for exercising quasi in rem jurisdiction over that property with respect to any claim not included in the original complaint.

Consideration of this issue can be deferred, however, pending a determination of the effect of the answer filed by defendant following the denial of his motion to dismiss the original complaint. In that answer, defendant did not indicate that he was defending on the merits for the sole purpose of protecting his interest in the attached property and that he did not intend thereby to submit himself generally to the court's jurisdiction. Instead, he both responded to the merits and repeated the same jurisdictional objections earlier advanced in the motion to dismiss. By stipulation to which defendant was a party, however, those jurisdictional objections were stricken from the answer because they had previously been considered and rejected when his motion to dismiss was denied. All that remained was defendant's answer on the merits. ⁵ If he thereby submitted himself personally to the jurisdiction of the court, and if that submission was effective with respect to the claim made in the supplemental complaint as well as those in the original complaint, then the Superior Court had jurisdiction to try the supplemental complaint and to enter a personal judgment thereon against defendant, notwithstanding his intervening disposition of the attached property. We believe, for the reasons that follow, that there was such a submission.

The defendant's answer on the merits constituted a general appearance, Holmes v. Milligan, 131 N.J.L. 125, 130-31, 36 A.2d 15, 18 (1943); Barber v. Calder, 522 P.2d 700, 702 (Utah 1974); and by appearing generally he submitted himself to the jurisdiction of the court at least with respect to the original complaint, which was the only one on record when the answer was filed. Mack Constr. Co. v. Quonset Real Estate Corp., 84 R.I. 190, 194, 122 A.2d 163, 164 (1956); Industrial Trust Co. v. Rabinowitz, 65 R.I. 20, 22, 13 A.2d 259, 260 (1940). Whether the appearance also constituted a submission of his person to the jurisdiction with respect to the supplemental complaint is another question, the answer to which hinges on whether the trial justice erred when, in reliance on Super.R.Civ.P. 15(d), ⁶ she permitted plaintiff to file the supplemental complaint.

A few older federal cases hold that under Fed.R.Civ.P. 15(d), which is identical to our rule, the only purpose of a supplemental complaint is to update or otherwise aid the claim set forth in the original complaint; consequently, a new and separate claim cannot be asserted in a supplemental complaint, but rather must be the subject of a separate and independent lawsuit. ⁷ E. g., General Bronze Corp. v. Cupples Prods. Corp., 9 F.R.D. 269 (E.D.Mo.1949). This view has been criticized, however, as being contrary to the basic policy of the rules "that a...