Gates v. Gates
| Decision Date | 07 January 1958 |
| Docket Number | No. 165,165 |
| Parties | Frances F. GATES v. Herbert C. GATES. |
| Court | Vermont Supreme Court |
Manfred W. Ehrich, Jr., Bennington, for plaintiff.
Waldo C. Holden, Bennington, for defendant.
Before CLEARY, ADAMS and HULBURD, JJ., and DIVOLL, Superior Judge.
On December 28, 1956, the petitioner, Frances F. Gates, presented her petition to the Bennington County Court and obtained an order ordering the petitionee to appear and show cause why a judgment should not be entered for the petitioner for the amount to be determined due under an alimony decree. This petition was brought under V.S. 47 § 3241 No. 110 of the Acts of 1955 and it recited that the petitioner obtained a divorce on July 25, 1956 and that a decree in connection therewith made provision for certain alimony payments to be made by the libelee (petitionee) to the libelant (petitioner). The petition then quoted the decree as to the amounts and dates of the payments so ordered, with which we need not concern ourselves here. There followed a paragraph, numbered '3', which, because of its special importance to the question to be considered, we quote in full:
The petition concluded with allegations as to nonpayment by the petitionee in accordance with the order and a statement of the amount of claimed arrearage followed by a prayer for a determination by the court of the amount due and for judgment in favor of the petitioner for the amount found.
Service was made under this petition upon Waldo C. Holden, as attorney of record for the petitionee, the sheriff's return showing that the petitionee was resident in Canada.
Under date of January 8, 1957, the petitionee filed a motion to dismiss as follows:
'Comes now Libelee, Herbert C. Gates by his attorney, Waldo C. Holden, and appears specially in the above entitled matter for the sole purpose of moving to dismiss said Petition on the following grounds:
'1. It does not appear from said Petition that Libelee has accepted service of said Decree or has been legally served with notice of such Decree.
'Wherefore, it is respectfully moved that the above entitled Petition be dismissed with costs to Libelee.
'Waldo C. Holden
'Attorney for Herbert C. Gates'
On January 21, 1957 the county court overruled the defendant's motion to dismiss on the ground that it was not signed by the defendant in person and it specifically referred to the case of LeBlanc v. Deslandes, 117 Vt. 248, 250, 90 A.2d 802.
Later a second motion to dismiss, dated January 31, 1957, was filed reciting the same ground as the first and adding a new ground as follows:
'It does not appear from said Petition that the said Herbert C. Gates has received 'notice' thereof, as the law provides.'
This motion was also denied by the court. Thereafter the court proceeded to hear the case and enter judgment and exceptions were allowed the petitionee for the petitioner.
We turn first to petitionee's original ground to dismiss (which appeared in the second motion as well), namely, that he had not been 'legally served with notice' of the decree. The petition disclosed that the only service of the decree which had ever been attempted prior to the bringing of the petition by the petitioner, was by the county clerk of Bennington County in delivering a copy of the decree to Waldo C. Holden, attorney of record for the libelee (petitionee) and a mailing of a copy to the libelee at his place of business.
The statute under which this action is brought provides as follows (No. 110 of the Acts of 1955):
'When a decree or order for the payment of either temporary or permanent alimony * * * has been made by the county court or a superior judge, and the person liable for the payment of money under such decree or order has accepted service thereof, or has been legally served with notice of such decree or order, the party entitled by the terms of such decree or order to payment thereunder may bring a petition to the county court asking for a determination of the amount due under such order.'
Did the delivery of copies of the decree by the county clerk as stated meet the requirements of the statute? No acceptance of service is claimed and unless what the county clerk did resulted in the defendant's being 'legally served with notice,' the petitionee's motion to dismiss should have been granted. This is so because the proceeding is statutory in nature. Until the required service had been made, the special right of action created by the statute did not arise in the petitioner's favor.
'Legally served with notice' means personal service, that is, a delivery of a copy of the process to the party to be served (Chapman v. Chapman, 118 Vt. 120, 128, 100 A.2d 584) by a person authorized by law to make service. Howard v. Walker, 39 Vt. 163, 166. 'The proper method of serving process must be adopted in order to render the service effective, and it must be served by a proper officer...
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Gates v. Gates
...or the order for the payment of alimony, attorney fees, etc. This is the second petition seeking the same relief. See Gates v. Gates, 120 Vt. 241, 138 A.2d 611. The present petition alleges that a copy of the divorce decree and order was served on Waldo C. Holden in Bennington, Vermont, as ......
- Cartmell's Estate, In re, 22
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Gates v. Gates
...petitions to the same effect have been successfully countered by motions to dismiss finally determined by this Court in Gates v. Gates, 120 Vt. 241, 138 A.2d 611, and Gates v. Gates, 120 Vt. 505, 144 A.2d 782. The motion to dismiss under consideration was overruled below and the exceptions ......