Hooker v. Hooker

• Decision Date: 03 November 1959
• Citation: 99 N.W.2d 113,8 Wis.2d 331
• Parties: Mabel T. HOOKER, Appellant, v. Jerome B. HOOKER, Respondent.
• Court: Wisconsin Supreme Court

Page 113

99 N.W.2d 113

8 Wis.2d 331

Mabel T. HOOKER, Appellant, v. Jerome B. HOOKER, Respondent.

Supreme Court of Wisconsin.

Nov. 3, 1959.

O'Melia & Kaye, Rhinelander, for appellant.

Hoffmann, Trembath & Gullickson, and Robert W. Monk, Wausau, for respondent.

FAIRCHILD, Justice.

1. Sufficiency of service upon attorneys of record. It is clear that when the court entered the order of January 6, 1959, appealed from, the court's authority to review the judgment under sec. 269.46(3), Stats., had expired, and that no attempt was made to show 'mistake, inadvertence, surprise or excusable neglect' under sec. 269.46(1), Stats. Authority to enter the order must be found in sec. 247.37(2), Stats., reading, in part, as follows:

'So far as said judgment or decree affects the status of the parties the court shall have power to vacate or modify the same for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within one year from the granting of such judgment or decree, provided both parties are then living. But no such judgment or decree shall be vacated or modified without the service of notice of motion, or order to show cause on the divorce counsel, and on the parties to the action, if they be found.'

Appellant plaintiff contends that personal service of notice upon her attorney of record in the action is insufficient compliance with the statute, her address in California being known to the defendant.

The problem is to construe the expression 'on the parties to the action, if they be found.' It must be noticed that sec. 269.37 provides 'when a party to an action or proceeding shall have appeared by an attorney the service of papers shall be made upon the attorney * * *.' Notices of appeal under sec. 274.11, requiring service on each adverse party who appeared, and of proposed bills of exceptions and other papers pursuant to secs. 270.44 and 270.47, requiring service on the adverse party, are commonly served upon the attorneys of record rather than on the party himself after judgment has been entered in an action. Evidently, it is generally understood that an attorney of record in an action retains his duty and authority as such for some period of time, or at least in certain proceedings, after judgment. The problem of sufficiency of service on an attorney of record after judgment has been considered in a number of cases where a motion has been made for change of custody. There is considerable conflict in the decisions. See 42 A.L.R.2d 1115. The case annotated was Moore v. Lee, Fla.1954, 72 So.2d 280, 42 A.L.R.2d 1112. There the Florida court held that service of notice on the attorney of record after the time for an appeal from the final decree had expired, was insufficient, apparently implying that within the time for appeal the attorney of record presumptively has authority as attorney and may effectively be served with notice. At the time of the service of the notice upon plaintiff's attorney in this action, the time for appeal had not expired. It is our view that when a party retains an attorney to appear in an action, the party contemplates the usual and ordinary proceedings which may be taken after judgment, and the statutory provisions for appeal and review of the judgment within specified periods from the date of entry, and that in the absence of a substitution or withdrawal of the attorney of record, service of notice upon such attorney is sufficient in all such proceedings and is authorized by sec. 269.37, Stats.

2. Effect of 'November' appeal upon jurisdiction of trial court. Before the court made its order of January 6, 1959, defendant served the notice of appeal and undertaking which we have referred to as the 'November' appeal. Defendant appealed only from the portions of the judgment providing for alimony and division of property. Plaintiff claims that this appeal took away from the circuit court all its authority to vacate the judgment under sec. 247.37(2). This court has held, however, that this section has created a special rule for divorce judgments, that 'notwithstanding an appeal from that part of a divorce judgment relating to alimony or division of property the right is reserved to the trial court to vacate or modify the judgment so far as it affects the status of the parties.' Seyfert v. Seyfert, 1930, 201 Wis. 223, 227, 229 N.W. 636, 638.

3. Sufficiency of cause. In moving for vacation of the judgment, defendant proposed no answer, and his moving papers suggested no defense to the allegations of the complaint or amended complaint. Neither did they present any fact occurring after judgment which would be a ground for vacating the judgment such as in Kilmer v. Kilmer, 1946, 249 Wis. 41, 23 N.W.2d 510. The defendant's moving papers asserted that the property division was inequitable, but the court's power to review a property division, as such, expires at the latest sixty days after the end of the term of entry thereof. Sec. 269.46(3); Anderson v. Anderson, Wis., 98 N.W.2d 434. If defendant shows no facts with which to challenge plaintiff's right to absolute divorce, he has shown no cause for vacating the judgment as to status. The burden should be upon him to present to the court some reason for concluding that the correctness of the judgment as to status was open to question.

Defendant's moving papers did refer to the insufficiency of the service of the amended summons and complaint. We have considered whether this made the divorce judgment void, and conclude that it did not. It is clear that the attempted service of the amended summons and complaint did not confer jurisdiction over the defendant. Sec. 262.13(1) and (2) required that there be filed either proof of mailing, or proof that defendant's post office address could not be ascertained with reasonable diligence. The record suggests that the address was known and proof of mailing is absent. The original summons and complaint, however, were personally served, as well as two other orders made with respect to temporary alimony and the sale of property which were personally served upon the defendant upon different dates.

It is also true that the record suggests that neither party had been a resident of Wisconsin for at least two years next preceding the commencement of the action as required by sec. 247.06(1), when an action is begun for absolute divorce on the grounds of cruel and inhuman treatment. This action, however, was originally commenced for divorce from bed and board, and in that situation jurisdiction could be acquired where either party was a bona fide resident at the time the cause of action arose and continued so to be down to the time of the commencement of the action. The record indicates that plaintiff met this requirement.

The judgment for absolute divorce was not entered until after plaintiff had been continuously a resident for more than two years. The circuit court has power to enter a judgment for absolute divorce in an action where the pleadings merely seek a divorce from bed and board. Shequin v. Shequin, 1915, 161 Wis. 183, 152 N.W. 823; In re Estate of Kehl, 1934, 215 Wis....