Lechner v. Lechner
| Decision Date | 29 February 1944 |
| Citation | 16 So.2d 816,154 Fla. 114 |
| Parties | LECHNER v. LECHNER. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.
Redfearn & Ferrell, of Miami, for appellant.
Stuart Mackenzie, of Miami, for appellee.
On August 15, 1916 Louis N. Lechner and Celia Lechner intermarried in the City of New York and lived and cohabited together continuously thereafter as husband and wife until December, 1929, when the husband abandoned the wife and shortly thereafter filed suit for divorce in the Courts of the State of New York. An answer was filed by the wife. Stipulations were entered into between the parties as to a property settlement and so recognized on February 6, 1931, by the Supreme Court of the State of New York by a decree of said date.
The consent decree (1) dismissed on the merits the suit of Louis N. Lechner against his wife; (2) granted the wife a separation from bed and board of her husband forever; (3) awarded the wife $22.50 per week for support and maintenance for her natural life. Payments were made weekly from the date of entry of the decree until the Summer of 1940. Section 1171-b of the Civil Practice Act of the State of New York authorizes the entry of a money judgment for alimony arrears, and pursuant thereto on March 25, 1941, a money judgment in the sum of $675 was entered against Louis N. Lechner. The law of New York authorized the courts by appropriate order on application on notice to alter, amend, increase or deny alimony previously entered or awarded. See Van Dusen v. Van Dusen, 258 A.D. 1020, 17 N.Y.S.2d 96.
On March 10, 1936 Louis N. Lechner filed in the Circuit Court of Dade County Florida, a bill for divorce against his wife, Celia Lechner on the grounds: (a) Extreme cruelty, and (b) wilful, obstinate and continuous desertion for a period of one year. The bill of complaint was sworn to and recited that the plaintiff, Louis N. Lechner, had been a resident of Florida (at the time of filing the suit) for a period of more than ninety days; and that Celia Lechner (his then wife) was a non-resident of the State of Florida and her residence, as particular as it was then known to the plaintiff, was the City of New York, State of New York, and a better or more specific address was unknown.
Attached to the bill of complaint was plaintiff's affidavit, viz.:
'State of Florida,
'County of Dade.} ss.
'Before me, the undersigned authority, personally appeared Louis N. Lechner, who being duly sworn, deposes and says: that he is the plaintiff in this cause; that the defendant, Celia Lechner, is a non-resident of the State of Florida, and, as particularly as is known to your affiant, is a resident of the City of New York, State of New York, a better or specific address being unknown to your affiant after diligent inquiry and search; that there is no person in the State of Florida the service of a subpoena upon whom would bind the defendant; that he and the defendant are each over the age of twenty one years.
'Affiant further states that he has read the above and foregoing Bill of Complaint and that the matters and things alleged therein are true.'
Predicated on the sworn bill was a notice to appear order of the Clerk of the Circuit Court of Dade County, Florida, viz.:
'E. B. Leatherman,
'Clerk of Circuit Court.'
It affirmatively appears from the record that the Clerk of the Circuit Court of Dade County, Florida, sent by mail a copy of the notice to appear to Celia Lechner, New York City, but the same was never delivered to or received by Celia Lechner and the same was by the postoffice officials returned to the Clerk of the Circuit Court at Miami, Florida.
On April 11, 1936, after the entry of a decree pro confesso against Celia Lechner, the Honorable Worth Trammell, Circuit Judge, made and entered an order forever dissolving and terminating the bonds of matrimoney then and previously existing between the parties. On August 4, 1936, Louis Lechner and Janet Lopkins intermarried and are now cohabiting as husband and wife, and an issue thereof is a child of tender years and a minor.
On October 15, 1941, Celia Lechner filed in the Circuit Court of Dade County, Florida, an original bill in the nature of a bill of review seeking to impeach the divorce decree entered by the Circuit Court of Dade County, Florida, on April 11, 1936. The bill alleged that Celia Lechner was a non-resident of Florida and was a resident of the City of New York and State of New York and that the affidavit of Louis N. Lechner, upon which service by publication was obtained in the divorce suit, was false. The affidavit recited the residence of Celia Lechner as 'the City of New York, State of New York, a better or specific address being unknown to affiant (Louis N. Lechner) after diligent inquiry any search'; that the said Louis N. Lechner well knew the address in the City of New York of Celia Lechner at the time he testified before the Master to whom the divorce suit was referred and knew that Celia Lechner had not at any time concealed herself or retained from him her address in the City of New York. The bill of complaint sought a decree impeaching for fraud the divorce suit granted to Louis N. Lechner on April 11, 1936, by the Circuit Court of Dade County, Florida.
The original bill in the nature of a bill of review sought a judgment of the Circuit Court of Dade County for the balance due on the decree of separation entered in the Supreme Court of New York on the 6th day of February, 1931, in the case of Louis N. Lechner v. Celia Lechner. The decree ordered Louis N. Lechner to pay to Celia Lechner $22.50 per week for her maintenance and support during the period of her natural life. While Louis N. Lechner had conformed to the weekly payments for a period of ten years, or more, at the time of the filing of the bill he was in arrears under the terms of the separation agreement for designated sums.
The defendant Lechner, by answer to the original bill in the nature of a bill of review, by appropriate allegations denied the several allegations of fraud relied upon to impeach the divorce decree. Likewise he denied the plaintiff's allegations of false testimony given by Lechner in the divorce proceedings in the Circuit Court of Dade County, Florida. Additional allegations appear in the answer to the effect that the residence and address of Celia Lechner as the City of New York, New York, was as particular the address and residence of the appellee as was known to Louis N. Lechner; that he and his New York attorneys had repeatedly attempted to ascertain the residence and address of Celia Lechner and that her New York attorneys consistently refused to divulge her address.
The answer to the claim for a money judgment for the balance due Celia Lechner as alimony is to the effect that by the terms of the stipulations of the parties filed in the Supreme Court of New York, Louis N. Lechner paid Celia Lechner $11,100 in cash assigned to her an endowment insurance policy and paid to her additional thereto for many years the sum of $22.50 per week; that he applied to the New York court for a reduction of the amount of alimony but the same was by the court denied; that Celia Lechner owned in her own right ample funds to sustain her in comfort and to defray all costs incidental to poor health. Amendments to the original bill were authorized by a court order and an answer thereto was filed, and on the issues made by the pleadings the cause was referred to a Master, who...
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