Leeker v. Leeker

• Decision Date: 10 December 1921
• Docket Number: Civil 1886
• Citation: 202 P. 397,23 Ariz. 170
• Parties: NATHAN LEEKER, Appellant, v. DORA KATZ LEEKER, Appellee
• Court: Arizona Supreme Court

202 P. 397

23 Ariz. 170

NATHAN LEEKER, Appellant, v. DORA KATZ LEEKER, Appellee

Civil No. 1886

Supreme Court of Arizona

December 10, 1921

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. A. C. Lockwood, Judge. Affirmed.

STATEMENT OF FACT

On April 24, 1919, plaintiff commenced an action, by her attorneys, Leslie C. Hardy and James D. Andrews, in the superior court of Santa Cruz county, Arizona, against the defendant, for an absolute divorce, for the custody of the issue of their marriage, to wit, two sons, Abraham and Henry aged twenty and eighteen years, respectively, for a division of the community property, and for support for herself and minor children, attorneys' fees, and necessary expenses. Adultery with one Sarah Goldner at the town of Nogales, the cities of Kansas City and New York, at different times, was the alleged ground for divorce. To this complaint the defendant answered, denying the allegations of his infidelity; at the same time he filed a cross-complaint charging the plaintiff with cruelty and desertion, and asked for an absolute divorce. The plaintiff, in reply to the answer and cross-complaint of defendant, alleged that since the filing of her complaint the plaintiff and defendant had entered into a contract for the division of their community property, and that the defendant had paid to the plaintiff the sum of $500 on May 12, 1919, and several lesser sums for the use of the minor children. She denied the charges of cruelty and desertion. In November, 1919, the plaintiff's attorneys dismissed her complaint, and thereafter the case stood upon the defendant's cross-complaint and plaintiff's reply thereto. The case came on for trial on January 6, 1920, plaintiff being represented by Leslie C Hardy, of Nogales, and James A. Beha, of New York City, James D. Andrews, her other attorney, also of New York City, not being present at this trial. Both the plaintiff and defendant were personally present, and submitted evidence upon the issues joined, and thereafter the court made findings of fact and entered thereon a judgment in favor of the defendant granting him a divorce on the ground of excessive cruelty and, upon the stipulation of counsel for the plaintiff and defendant as to the division of the community property entered judgment that the defendant pay to the plaintiff the sum of $21,022, and that defendant pay to the attorneys for plaintiff, as attorneys' fees, court costs, and expenses, the further sum of $3,650, the said sums to be plaintiff's full share of the community property. The custody of the minor children was awarded to plaintiff, the decree providing that the defendant should pay for their board and clothing and education during their minority. This decree was entered on the sixth day of January, 1920. On January 16, 1920, the defendant paid to Leslie C. Hardy, as attorney for plaintiff, the full sum of $24,672, taking his receipt therefor. Of this amount, $21,022, Mr. Hardy deposited to the plaintiff's credit in the First National Bank of Nogales.

On February 25, 1920, the plaintiff, having theretofore discharged the attorneys who had represented her up to and during the trial, filed by and through new attorneys a paper in the following words:

"Comes now Dora Katz Leeker, . . . and moves the court to relieve her from the judgment, order, and decree of divorce rendered against her in the above-entitled action on the 6th day of January, 1920, and to set aside and vacate said judgment, order and decree, and to reopen the said action, and to permit plaintiff to amend her pleadings in said action so as to present the real merits of said cause, and to have a trial thereon. This motion is based upon the affidavits of plaintiff herein and Henry Leeker, which affidavits are hereto attached, marked Exhibits A and B, and made a part thereof."

The affidavits charged fraud, trickery, and deceit upon the part of plaintiff's attorneys. A hearing was had on this motion April 20, 1920, upon affidavits and oral testimony. Thereafter, on July 15, 1920, the court granted the motion and ordered the judgment rendered on January 6, 1920, to be vacated and set aside. This decision of the court was rendered in his chambers at Tombstone, and transmitted to the plaintiff's and defendant's counsel through the mail, as provided by paragraph 346 of the Civil Code. Plaintiff's attorneys received this notice through the postoffice on July 16th, and on July 17th the plaintiff drew her check on the First National Bank of Nogales for $21,000, which was paid. Thereafter, on September 8th, under the order of the court, she redeposited $17,450 of said money to the order of the clerk of the court, leaving with the plaintiff $3,500 as temporary alimony allowed her between April 1, 1919, and October 1, 1920.

On the motion to vacate the judgment of January 6, 1920, the court made findings of fact. Before stating the substance of such findings it should be known that plaintiff, while sojourning in the city of New York, first became acquainted with the defendant's infidelity, and consulted, while a subtenant of his, James D. Andrews, an attorney of that city, as to what she should do in the premises; that she then employed said Andrews, who, together with James A. Beha, became her regular counsel up to the conclusion of the trial, while Leslie C. Hardy represented her as her local attorney. The court found as facts that Hardy relied wholly upon the representation and instructions made and given to him by plaintiff's New York attorneys, and that he followed such instructions, believing that in so doing he was following the instructions of plaintiff; that, owing to plaintiff's inability to speak English intelligently, he was unable to converse with her; that his entire conduct was clearly ethical in every way, and that as local attorney he performed fully all duties incumbent upon him as officer of the court and one of the attorneys for plaintiff. The court's findings also exempt defendant's attorney of any unprofessional or unethical practices or conduct.

With reference to the New York attorneys, Andrews and Beha, the findings are in effect that they tricked and deceived the plaintiff in this, that, notwithstanding she had instructed them that in no event should the marriage relation be dissolved or a divorce granted, they proceeded to Nogales and instituted a suit for divorce; that their employment was to secure a property settlement for the plaintiff from the defendant, and to secure her half of the community property, and, if possible, a separation or a separate maintenance from the defendant; that after bringing said suit her said attorney Andrews proceeded to draw up a property settlement contract contemplating the payment of part of the community property to plaintiff and payment of large attorneys' fees to her New York attorneys; that said contract for the division of property was so worded that the defendant could reasonably contend that no money need be paid the plaintiff or to her attorneys as attorneys' fees unless an absolute decree of divorce was entered; that such was thereafter the contention of defendant and his attorneys, and that plaintiff's attorneys, therefore, had a strong financial interest in failing to obey plaintiff's instructions, and in desiring the dissolution of the marriage between the parties; that said New York attorneys dismissed the plaintiff's complaint charging the defendant with adultery, and failed and refused to amend their pleadings so as to make the same an issue, and thereby took the question of defendant's infidelity away from the court, so that no evidence thereof could be offered or taken, and placed themselves in a position where they could only introduce evidence to refute whatever charges were made by the defendant instead of being able to affirmatively show the failure of defendant to observe his marriage vows.

The court further found that, owing to plaintiff's inability to speak the English language properly, and the hysterical condition in which she was, and also owing to her mental frame of mind, she was unable tofully advise the court of what was transpiring, and of the failure of her counsel to present her side of the case to the court; that the plaintiff requested the said Beha to urge upon the court matters in her defense and in general to take a more active part in the trial; that this communication, as all others made to the said Beha, was made in German or broken English, and was not intelligible to the court. Beha represented to the court that the remarks of the plaintiff were solely urging him to put in evidence the conduct of the defendant with Sarah Goldner; that Beha advised the court he did not wish to amend his pleadings as to permit such evidence to be introduced. The court in passing upon the motion stated as conclusions of law:

"If the findings made by the court are true, plaintiff, who desired separate maintenance, but who strenuously opposed at all times a divorce, through the fault of her New York attorneys, and through their deliberate fraud upon her, and on the court, had judgment against her when she had a defense which, if proved, would have prevented the divorce. Furthermore, in view of the findings, plaintiff was in no wise at fault considering her lack of knowledge of the English language, but did her best at all times to prevent said divorce and to cause her said defense to be presented to the court."

Mr. Frank J. Barry, for Appellant.

Messrs. Duffy & Purdum and Mr. Duane Bird, for Appellee.

OPINION

ROSS, C. J.

(After Stating the Facts as Above.) The appellant, who was the defendant below, appeals from the order granting a motion to vacate and set aside the judgment and the court's refusal to vacate the order...