Sandall v. Sandall
| Decision Date | 29 November 1920 |
| Docket Number | No. 3526.,3526. |
| Citation | 57 Utah 150,193 Pac. 1093 |
| Parties | SANDALL v. SANDALL. |
| Court | Utah Supreme Court |
1. APPEAL AND ERROR—ASSIGNED ERRORS MUST BE REFERRED TO IN BRIEF—NO REVIEW OF ERRORS NOT ASSIGNED—QUESTIONS NOT RAISED BELOW NOT CONSIDERED—BRIEF MUST INCORPORATE EVIDENCE WHEN NECESSARY. Errors assigned but not referred to in appellant's brief, and errors argued in the brief but not assigned, and assignments raising questions not presented in the court below, and those alleging insufficiency of the evidence to authorize action of court in modifying a decree without specifying the particulars wherein the evidence is insufficient and without incorporating any of the evidence in the record, will not be considered on appeal, being in disregard of the rules of practice of the Supreme Court.1
2. DIVORCE—PRESUMED THAT ORDER OF COURT WAS BASED ON FINDINGS SUPPORTED BY EVIDENCE. On appeal from a decision refusing to set aside and vacate an order amending and modifying a decree of divorce, where the evidence before the trial court on the hearing of the petition to modify and amend is not before the court, not being brought up in the record on appeal, it must be presumed that the order of the court was based upon findings and that such findings were supported by the evidence.
3. MOTIONS—FORMAL FINDINGS HELD NOT NECESSARY TO SUPPORT ORDER REFUSING TO SET ASIDE ANOTHER ORDER. To support an order refusing to vacate an order amending and modifying a decree, no formal findings were necessary.
4. DIVORCE—MATTERS WARRANTING MODIFICATION OF DECREE OF DIVORCE AS TO ALIMONY TO INCLUDE SUPPORT. A petition stating that decree of divorce did not provide for alimony because petitioner did not insist upon alimony on account of inability of defendant to pay the same on account of being a drunkard, and that the habits of defendant had so changed that it was possible for him to pay alimony and support a child which had been placed in the custody of the petitioner, who was unable to properly care for it by reason of a rise in prices and increased cost of living, stated good grounds for modification of the decree under Comp. Laws 1917, § 3000.
5. ATTORNEY AND CLIENT—NOTICE OF MOTION TO MODIFY DECREE HELD NOT PROPERLY SERVED ON ATTORNEY IN DIVORCE ACTION. Where a divorce decree was rendered in favor of plaintiff and she was given custody of a child, and defendant thereafter paid off his attorneys, the relation of attorney and client ceased as between defendant and his attorneys, and notice of motion or proceeding several years later to have the divorce decree modified so as to provide for the payment of alimony should not have been served upon defendant's attorneys in the divorce case, and, such service having been made upon them alone, the court had no jurisdiction, even though defendant's attorneys represented him in a threatened criminal prosecution for nonsupport of his child.
Appeal from District Court, Third District, Salt Lake County; John F. Tobin, Judge.
Action by Margaret E. Sandall against John Eugene Sandall. Decree for plaintiff. From an order denying motion to vacate an order modifying the decree, the defendant appeals.
REVERSED and REMANDED, with directions.
Halverson, Kimball & Farr, of Ogden, for appellant.
Rich, Rich & Roberts, of Salt Lake City, for respondent.
On July 28, 1910, final decree of divorce in the above-entitled cause was entered for plaintiff against defendant in the district court of Salt Lake county. The decree also awarded the plaintiff the custody of their minor child, at that time about two years of age. Plaintiff, in her complaint, prayed for a reasonable amount per month as permanent ali- mony for the support of herself and child, but alimony was not allowed.
In the divorce proceedings the firm of Halverson & Pratt, attorneys at law, residing in Ogden City, Utah, appeared as attorneys for defendant.
On September 26, 1919, plaintiff filed her petition in the same court for a modification of the decree. The petition, in substance, alleged the granting of the divorce, as above stated, and the award to plaintiff of custody of the child. The petition then alleged that the decree of divorce was granted on the ground of the failure of defendant to provide plaintiff and said child the common necessaries of life, and also on the ground of defendant's drunkenness and profligacy. Plaintiff alleges that in her complaint for divorce she prayed for alimony for the support of herself and child, but that said application for alimony, at the hearing of the cause, was abandoned for the reason that any order which the court might have made at that time respecting alimony would have been valueless to plaintiff and could not have been enforced. The petition then alleges that at the time of the hearing in the divorce proceeding, and for a long time prior thereto, the defendant had been addicted to the use of liquor to the extent that he could not and would not work sufficiently to provide plaintiff and her child with the common necessaries of life; that the reason she did not insist, at the trial of the divorce proceeding, on an allowance for support and maintenance was owing to defendant's habit and his lack of ability to occupy a position of responsibility. For this reason, she alleges, an order for alimony would have been unenforceable and of no value. Plaintiff further alleges that at all times since said decree of divorce was rendered she has had the care, custody, and control of said minor and has at all times supported herself and the child by her own efforts and out of her own funds, but that owing to the growth of the child and the high cost of living and the increased cost of clothing, etc., it had become practically impossible for plaintiff to provide herself and the child with the necessaries of life. The petition then shows that within the last three or four years defendant has improved his habits to such an extent that he is now able to contribute to the support and maintenance of the child; that defendant is earning upwards of $200 per month and has inherited certain property which makes it now possible for him to make proper allowance for the child's support, and that $40 per month would be a reasonable sum for that purpose. The petition prays for such other relief as may be equitable and just.
The bearing upon the petition was set for October 4, 1919, and notice thereof served by mail upon Halverson & Pratt, at Ogden, as attorneys for defendant. The notice appears to have been received by Halverson on the day it was issued, September 26, 1919. On October 4, the day set for hearing, nobody appearing on the part of defendant, the clerk of the court called Halverson by phone at Ogden and inquired if he intended to appear in said cause, and Halverson answered he "would not." The court then proceeded to a hearing of the ease and the evidence offered on the part of the plaintiff, whereupon it was ordered that defendant pay to plaintiff for the support and maintenance of the minor child the sum of $40 per month, payable as follows: $40 oil or before October 10, 1919, $40 on or before November 1, 1919, and $40 on or before the 1st day of each month thereafter, and that the original decree be modified accordingly. Notice of this order was served upon the defendant himself. Thereafter Halverson appeared as attorney for defendant and served notice on Rich & Rich, attorneys for plaintiff in Salt Lake City, that on January 31, 1920, he would move the court to vacate and set aside the order modifying the decree upon the grounds' that the same was made and entered without jurisdiction, and particularly upon the grounds that defendant was not served with notice of process for a modification of the decree; that said judgment was and is void and of no effect.
In support of the motion to vacate the order modifying the decree, said attorney Halverson on the 23d day of January, 1920, filed therewith his affidavit to the effect that he was one of the attorneys for defendant prior to entry of the de- cree for divorce and that Arthur E. Pratt, now one of the judges of the Second judicial district court, also appeared for defendant; that after the termination of said action the firm of Halverson & Pratt were paid off by said defendant and have never since represented him; that on or about the 26th day of September, 1919, he received through the mail addressed to Halverson & Pratt, attorneys at law, Ogden, Utah, a notice with petition attached thereto, copy of which affiant attached to his affidavit as part thereof; that he thereupon notified Rich & Rich, attorneys for plaintiff, that neither himself nor said Pratt was representing defendant, and that affiant had no authority to appear for said defendant; that at the time said notice was served upon affiant neither he nor said Pratt were attorneys for said defendant, nor had either of them authority to appear as his attorney. Affiant further states that he did not notify defendant of said pretended service of motion.
The affidavit of defendant, Sandall, was also attached to the notice of motion to vacate the order modifying the decree. Defendant's affidavit is to the effect that on the 10th day of October, 1919, he received through the mail a document purporting to be an amendment and modification of the decree in the above-entitled action, and with the document he also received a letter which, together with the document, he attached to his affidavit as part thereof; that prior to the receipt of said papers at Layton, Utah, he had no knowledge or notice of any proceeding in said action looking to the amendment or modification of said decree; that he is now advised and believes, and therefore alleges the fact to be, that on or about the 26th day of September, 1919, an unsigned paper, purporting to be a copy of the petition on file herein, was served through the United States mail on Halverson & Pratt, who were his attorneys when the decree of divorce was entered and represented...
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