Haas v. Haas
| Decision Date | 17 June 1952 |
| Citation | 59 So.2d 640 |
| Parties | HAAS v. HAAS. |
| Court | Florida Supreme Court |
Roe H. Wilkins of Maguire, Voorhis & Wells, Orlando, for petitioner.
H. N. Roth and Clark W. Jennings, Orlando, for respondent.
We here review in certiorari an order entered in proceedings instituted by petitioner against the respondent in the Circuit Court in and for Orange County, Florida, in Chancery, by which the petitioner sought to invoke the equitable processes of such court for the enforcement of a judgment for past-due alimony entered against respondent by the Supreme Court in and for Westchester County, New York, under the provisions of Section 1171-b of the New York Civil Practice Act. The petitioner's motion to strike the respondent's answer was denied as to certain of the defenses alleged therein and it is such order with which we are here concerned.
The petitioner and respondent were married in 1924 and lived together in the State of New York until 1945. At that time the parties separated and the petitioner filed suit in the Supreme Court in and for Westchester County, New York, for separation from bed and board and for separate maintenance. This action was contested by the respondent, and the cause was dismissed by such court. Ultimately, however, the Court of Appeals for the State of New York reversed the judgment of the Supreme Court of Westchester County, New York, as affirmed by the Appellate Division of such court, and remanded the cause for a new trial. Prior to the handing down of the decision by the Court of Appeals, the respondent left the State of New York, and did not appear, either in person or by counsel, at the new trial of the cause. Judgment was entered November 29, 1948, by the Supreme Court in and for Westchester County, New York (hereinafter referred to as the 'New York court') in favor of petitioner in the amount of $17,225.20 plus other sums, and ordering respondent to pay petitioner as permanent alimony the sum of $120 per month from November 1, 1948.
In 1949, the petitioner instituted an action at law against the respondent in the Circuit Court in and for Orange County, Florida, based on the 1948 judgment of the New York Court. This action was dismissed by the trial court on the ground that such judgment was subject to modification by the New York court and thus not entitled to full faith and credit in the courts of this state. The petitioner filed a notice of appeal from such judgment, but the appeal was never perfected.
Thereafter, on January 27, 1950, the petitioner instituted proceedings in the New York court to reduce the alimony arrearages accrued under the 1948 judgment to final judgment pursuant to the terms of Section 1171-b of the New York Civil Practice Act. The petitioner's motion was returnable on February 7, 1950, and notice of the pendency of such proceedings was mailed to the respondent. However, the respondent did not receive such notice until February 9, 1950, two days after the New York court had entered judgment in petitioner's favor in the amount of $27,007.81.
The respondent immediately filed in the New York court a motion for an order to show cause why the February 1950 judgment should not be vacated and set aside, and why he should not be permitted to answer the petitioner's application under Section 1171-b for a final judgment on the alimony arrearages. This motion also sought an order vacating and setting aside the 1948 judgment of the New York court, above referred to, and for permission to appear and interpose his defenses at a trial of the issues in the action culminating in such 1948 judgment; and, in the alternative, for an order 'annulling, varying, or modifying the provisions contained in the alleged final decree dated November 29, 1948.'
The New York court, after a hearing and consideration of affidavits filed in support of and in opposition to such motion on behalf of the respective parties, entered its order denying that portion of the respondent's motion relating to the 1948 judgment. As to the February 1950 judgment, it was ordered that 'the portion of defendant's motion to open his default and to vacate the judgment herein dated February 7, 1950 is granted to the extent of opening the default upon condition that the judgment dated February 7, 1950 stand as security and upon the further condition that within ten days after service of a copy of this order with notice of entry thereof defendant serve upon the attorney for the plaintiff and file with the Clerk of the County of Westchester a surety bond in the sum of $27,007.81 with a surety company as surety thereon to insure payment to the plaintiff of any sum the Court may hereinafter decree, such bond to be approved as to form and sufficiency by this Court, and in the event the defendant fails to comply with the foregoing terms and conditions this portion of defendant's motion is denied, * * *.'
The respondent did not appeal from this order, nor did he file the surety bond required therein as a condition to opening the 1950 default judgment. Thus, no further proceedings were had in the New York court.
The instant suit was instituted by the petitioner in the Florida equity court in June 1950 for the purpose of enforcing the February 1950 judgment of the New York court.
The respondent pleaded six defenses and a counterclaim in his answer. The petitioner's motion to strike was granted as to the first and sixth defenses and as to the counterclaim, so that we are here requested to consider only the legal sufficiency of the second, third, fourth and fifth defenses.
in his second and third defenses, the respondent alleged that the November 1948 decree was subject to modification by the New York court and thus not a final judgment, and also that it was void for lack of notice, so that it was not entitled to full faith and credit in the courts of this state. These defenses should have been stricken. In the first place, the instant suit is for the...
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...and applied the rule of McDuffie to the facts before it. Later, this Court reaffirmed its decision in Sackler in the case of Haas v. Haas, 59 So.2d 640 (Fla.1952). In Haas a former wife who had been awarded alimony in New York and later obtained a New York judgment for past due payments bro......
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Cadle Co. v. Jay, 3D03-2142.
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