Jafarian-Kerman v. Jafarian-Kerman

• Decision Date: 04 December 1967
• Docket Number: JAFARIAN-KERMAN,No. 24878,A,JAFARIAN-KERMA,24878
• Citation: 424 S.W.2d 333
• Parties: Leona Nellppellant, v. Mohammed Resa, alias Jeff Kerman, Respondent.
• Court: Missouri Court of Appeals

Page 333

424 S.W.2d 333

Leona Nell JAFARIAN-KERMAN, Appellant, v. Mohammed Resa JAFARIAN-KERMAN, alias Jeff Kerman, Respondent.

No. 24878.

Kansas City Court of Appeals, Missouri.

Dec. 4, 1967.

Motions to Modify Opinion and for Rehearing Denied Feb. 5, 1968.

Louis Kranitz, Theodore M. Kranitz, St. Joseph, for appellant.

Raymond W. Eckles, Maryville, for respondent.

PER CURIAM.

The plaintiff-appellant, having prevailed in her action for divorce, child custody, support and maintenance and attorney's fees and costs, sought additional relief touching certain excluded evidence, additional attorney's fees and a judgment of contempt against defendant-respondent. She appeals from the court's refusal to grant her such additional relief.

A motion to affirm the judgment of the court and to dismiss the appeal was filed by defendant-respondent, which this court took under advisement with the case. Since the disposition of the points raised in the appeal disposes of the grounds of the motion, the same will be considered in the appeal and the motion to affirm and dismiss the appeal is hereby overruled.

For convenience the parties plaintiff-appellant and defendant-respondent will hereinafter be referred to respectively as plaintiff and defendant. According to the petition and proof the parties had married in 1960 and separated in 1966. They had one child, Steven, aged four years at the time of trial. Plaintiff had become pregnant again but the child of that pregnancy had died shortly after the bringing of the divorce suit. The petition alleged a course of indignities and cruel treatment of plaintiff on defendant's part. The prayer sought a decree of divorce, allowances for support and maintenance, custody of the child Steven, attorney's fees, suit money and costs.

On the same day the petition was filed, plaintiff filed a motion for temporary custody of her child, Steven, and prayed for a temporary restraining order against the defendant, based on allegations of threats by defendant to kill her if the divorce action were pursued. The order sought was to restrain defendant from threatening plaintiff or in any way disturbing the peace or property of the plaintiff or inflicting any bodily harm upon her or her said child Steven, or interfering with her enjoyment of any premises which she may occupy.

The above motion was sustained. The court's orders included a restraining order and temporary injunction as prayed, effective upon the filing of a $100 bond by plaintiff, which was accordingly filed and approved on the same day.

Defendant engaged counsel and filed answer and cross-petition in the cause, charging plaintiff with association with other men, alleging vicious conduct on her part toward defendant and their child; that she had appropriated much of the joint funds and property of the parties, and that she had threatened his arrest and assault if he filed for divorce. To this pleading plaintiff filed reply, denying the charges made by defendant and filed a motion for temporary alimony.

Both parties appeared in person and by counsel at the hearing on plaintiff's motion for the temporary orders. On that motion the court awarded plaintiff $40 per week for her support and $200 temporary attorney's fees, granted her temporary custody of the child, Steven, with visitation privileges to the defendant to take the child on Friday, September 23, 1966, at 4:00 p.m. and to return him to plaintiff at 4:00 p.m. the next day and likewise each week thereafter during such corresponding days and hours.

On October 31, 1966, plaintiff filed a motion, alleging that defendant had received custody of the child, Steven, on October 28, 1966, under the privilege awarded him, but had failed to return the child since or to communicate with plaintiff, and that the whereabouts of the defendant and the child were unknown to her; that she was then again in a pregnant state and caused to suffer nervousness and distress over the situation; that defendant had willfully disobeyed the mandate of the court in the premises. The motion prayed that defendant be adjudged in contempt of court and punished therefor; that the defendant's visitation rights granted him be terminated and that he be ordered to return the child to plaintiff. The motion sought additional attorney's fees to be incurred in the investigation of the child's whereabouts.

On the same date the court issued its order on defendant to appear on November 2, 1966, and to show cause why he should not be adjudged guilty of contempt of court and punished accordingly for willfully disobeying the orders of the court as described in a copy of the motion of plaintiff therefor, attached. The sheriff's return on the order to show cause showed failure to serve the same because, after diligent search, defendant was not found in his county.

Plaintiff filed a memorandum with the court, advising it of her intention, at the trial of her divorce case, to call as her witness defendant's attorney of record, on the sole matter of his knowledge of defendant's whereabouts, citing authorities for the court's consideration.

Thereupon the court issued its order of attachment, commanding the sheriff to attach the child, Steven, if he might be found in his bailiwick, and keep him so that he could appear in plaintiff's case.

At the trial of the divorce case plaintiff appeared in person and by attorney and defendant appeared only by his attorney. Plaintiff's attorney advised the court that he intended also to take up the matter of the pending motion to find defendant guilty of contempt and to punish him therefor. The court inquired: 'Do you have service?' To this plaintiff's attorney said: 'It is not necessary'. Asked by the court for any comments, defendant's attorney stated: 'My client is not here--he is out of the United States. The matter arose after he left the country and no service, I am sure, has been had. I think we would have to have service.' He said he had no objection to proceeding with the divorce action.

Plaintiff introduced, without objection, an unserved warrant issued by a magistrate for defendant's arrest on a charge of 'enticing away of a minor child', and a felony complaint issued on the order of the plaintiff, charging him with fraudulent, forcible and malicious removal of plaintiff's child in violation of the order of the court. The plaintiff then testified generally to the grounds alleged in her divorce petition, tending to sustain the same, not necessary here to state. In the course of her testimony she introduced, without objection, a copy of a letter from the defendant to his attorney of record, who had sent the copy to her. It was dated November 1, 1966, at Munchen, Germany. she had used it in connection with her investigation of the whereabouts of her child, Steven, conducted for her by New York attorneys. She said defendant's attorney had sent it to her but had admitted it was not a complete copy. The letter stated that defendant and the boy had left the United States October 29, 1966; that they were going to leave Germany and go to some other country; that the child was well and happy; that counsel should tell plaintiff to keep her lawyer out of the matter and if so, he would agree to pay her $500 for 'four terms', or $125 every three months for five years and no more; that he would pay her attorney $100 and would pay $150 for medical expenses this time and no more; that she should be told that if she did not agree to the above she 'would not see me or Steven ever', and if she tried to cause him any trouble they would go to some foreign country where nobody could do anything about their matters. The letter stated plaintiff could proceed with the divorce on the above terms, and suggested that plaintiff, before the divorce, obtain from the United States Immigration office a 'waiver' of his return to the United States.

Plaintiff also introduced in evidence a bill from the New York attorneys for $475 for services in connection with the investigation of the whereabouts of plaintiff's child, Steven. In that connection she stated that investigation showed that defendant took the child on a Friday in October, 1966, and on the next day telephoned plaintiff's stepfather that he would be a little late returning the child as he was having trouble with his car.

Defendant's counsel was called as a witness in the trial of the divorce action. He identified the copy of the letter to him from defendant dated November 1, 1966, which copy he had sent to plaintiff. He stated that it was not complete; that he had received three letters from defendant, dated respectively, on November 1, November 18, and December 26, 1966. He said the letter of November 18, contained an address 'more or less general'. When asked what that address was, he said: 'At this point I claim attorney-client privilege'. The court sustained his claim of privilege. The counsel for plaintiff argued that defendant had been shown charged with felony, was a fugitive from justice and that his counsel could not claim an attorney-client privilege. The matter was discussed at length by the court and plaintiff's counsel, but the ruling remained unchanged.

Being recalled to the witness stand, plaintiff testified as to her lack of sufficient funds for support of herself and child, if the child be returned, and her need of funds to pay her attorney's fees. Upon inquiry by the court, her attorney said his fees should be $1,000, less $200 already paid to him. He outlined his various services in the case, including the matter of defendant's removal of the child and investigation of its whereabouts. He said he understood defendant's income to be $100 a week. He said defendant's counsel had shown him defendant's letter of November 1 and that he had seen in said counsel's possession a letter from defendant dated November 18. He said defendant's counsel told him that defendant at that time was in Germany.

The court asked defendant's counsel his...