Friedman v. Friedman, 68--924
| Decision Date | 10 June 1969 |
| Docket Number | No. 68--924,68--924 |
| Citation | 224 So.2d 424 |
| Parties | Jack J. FRIEDMAN, Appellant, v. Rose A. FRIEDMAN, Appellee. |
| Court | Florida District Court of Appeals |
John H. Duhig, Miami, for appellant.
Kelly, Black, Black, & Kenny, Miami, for appellee.
Before CHARLES CARROLL, C.J., and PEARSON and SWANN, JJ.
The appellant Jack J. Friedman was adjudged by the Dade County Circuit Court to be in contempt, for violation of a temporary restraining order. The contempt judgment was entered on September 19, 1968, with provision for penalty to be imposed at a subsequent time.
On September 13, 1967, Rose A. Friedman sued Jack J. Friedman for alimony unconnected with divorce, charging the defendant with having been guilty of extreme cruelty. Those parties will be referred to as the husband and the wife. The husband answered, and counterclaimed for divorce, charging extreme cruelty. On trial of the cause before the court the wife prevailed. Final judgment was entered on May 29, 1968, dismissing the counterclaim, and granting the wife separate maintenance, with alimony fixed at $100 per week. The judgment did not contain any reservation of jurisdiction, but it restrained each of the parties 'from interfering, molesting or threatening the other.'
The pleadings filed on behalf of the husband prior to judgment in the separate maintenance suit show he was represented there by attorney John H. Duhig. After judgment, on June 21, 1968, attorney Hugh S. Glickstein, of Hollywood, Florida, filed an appearance as attorney for the husband, and a motion on behalf of the husband for relief from the judgment, under Rule 1.540(b) RCP, 31 F.S.A., based on proffered additional evidence in support of the counterclaim for divorce. On June 25, 1968, a motion of Duhig to withdraw as attorney for the husband was granted. On June 27, 1968, the court entered an order denying the husband's motion for relief from the judgment under Rule 1.540. No appeal was taken from that order, or from the final judgment.
Thereafter, on July 25, 1968, the wife filed a 'Motion for Restraining Order and Contempt.' Her motion revealed she had received a formal notice of the pendency in Mexico of a suit filed there by the husband for divorce; and that by such notice (which allowed her eight days to answer) she was advised that in the absence of defense by her a divorce decree would be entered on July 31, 1968. As the basis for moving for an order of contempt, the wife's motion revealed she was proceeding on the theory that by filing suit for divorce against her the husband was violating the provision of the decree which had restrained him from 'interfering, molesting or threatening' her. As ground for seeking an injunction, the motion alleged only as follows:
'That, unless restrained, Defendant will proceed with his efforts to secure a decree of divorce from Plaintiff in Mexico contrary to and in defiance of the jurisdiction of this Court over the parties and their marital relationship.'
Service of that motion of the wife was attempted to be made on the husband by mailing copies to attorneys Duhig and Glickstein. Since no proceedings subsequent to judgment were pending, such as by a petition for rehearing or an appeal by the husband, the mailing of notice to attorneys who had represented him in the prior proceedings which had ended did not constitute service or notice to the husband. Ginsberg v. Ginsberg, Fla.App., 1960, 122 So.2d 30, 32, and 123 So.2d 57, 59. However, that failure or defect of service upon the husband was cured when an answer (styled 'Traverse') in opposition to the motion, was filed on behalf of the husband by his former attorney Duhig, on July 26, 1968. When the wife's motion came before the court on July 29, 1668, the temporary restraining order was entered, which enjoined the husband 'from prosecuting or continuing his action for a Mexican divorce until a hearing can be had herein,' and the order set the hearing for September 5, 1968. No appeal was taken by the husband from the order.
At the September hearing no testimony was taken, but it was brought out by evidentiary exhibits that the Mexican divorce had...
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