State ex rel. Groves v. First Judicial District Court of Ormsby County

Decision Date12 May 1942
Docket Number3353.
Citation125 P.2d 723,61 Nev. 269
PartiesSTATE ex rel. GROVES v. FIRST JUDICIAL DISTRICT COURT OF ORMSBY COUNTY et al.
CourtNevada Supreme Court

Original proceeding in prohibition and motion for allowance of attorney's fee by the State of Nevada on the relation of Wallace Groves against the First Judicial District Court of the State of Nevada, in and for the county of Ormsby and Honorable Clark J. Guild, the judge thereof, to restrain respondents from further proceedings with reference to modification of a divorce decree, wherein respondents filed a demurrer.

Petition dismissed and motion for attorney's fee denied.custody of the child. Comp.Laws, § 9462.

Springmeyer & Thompson, of Reno, for relator.

Wm. J Cashill, of Reno, for respondents.

TABER Justice.

On the 12th of June, 1937, Monaei Lindley Groves, as plaintiff, was awarded a decree of divorce from relator, Wallace Groves. The decree contained provisions relating to the custody and support of a minor child, and provided that future differences regarding the child were to be settled by arbitration. Plaintiff's maiden name, Monaei Lindley, was restored to her by the decree. Plaintiff and the child have continued their domicile in Nevada. It does not appear that defendant ever was a resident of this state.

On the 2d day of August, 1940, plaintiff noticed a motion for an order of the trial court modifying, changing and amending certain portions of said decree dealing with the custody support and well-being of said minor child. On the same day she noticed another motion for an order of said court requiring defendant (relator herein) to pay plaintiff's attorney for his services to be performed in preparing and presenting said motion for modification. The notices of said motions were served upon George Springmeyer, attorney of record for the defendant in said divorce action. No other notice of either motion was served or given.

At the time set for the hearings Mr. Springmeyer, appearing "specially on behalf of the defendant, not otherwise", objected to the hearing of the motions and to the court's hearing any evidence on behalf of the plaintiff in support thereof, upon the grounds, among others (1) that no service of process or notice had been made upon the defendant in person, or upon any one authorized by him or with authority in law to accept service of process, and (2) that the court was without any jurisdiction or authority to award any attorney's fees for services in presenting such motions. Thereafter defendant's objections to the hearing of the motion to modify the decree were overruled, and defendant ordered to pay plaintiff's counsel, within a specified time, a preliminary attorney's fee for services in presenting said motion for modification. Thereupon defendant applied to this court for a writ of prohibition, praying that the trial court be restrained from any further proceedings in the premises. Messrs. Springmeyer & Thompson are attorneys for petitioner in this proceeding.

At the same time that the petition for prohibition was filed, and in connection therewith, Mr. Springmeyer also filed an affidavit for the purpose of showing: that the fee agreed upon and paid him was for services to and including the entry of a decree of absolute divorce only; that in the spring of 1940 affiant was notified by the New York attorney who had employed him and been associated with him in the divorce action, that neither he nor any other person had authority to represent Mr. Groves in the event that Monaei Lindley should apply for a modification of the divorce decree, and that neither he nor any other person had authority to appear for Mr. Groves in said matter or to accept service of any notice, process or other papers on his behalf; that thereafter certain notices and other papers in connection with the modification of the divorce decree were served upon affiant, who thereupon notified said New York attorney; that the latter again informed affiant that he had no authority to enter a general appearance on behalf of Mr. Groves, but directed affiant to appear specially and object to the jurisdiction of the court.

On January 9, 1942, respondents filed a demurrer to relator's petition and an answer thereto. At the same time they moved for allowance of an attorney's fee for work and services to be performed for the minor child in preparing for and presenting a defense to said petition.

Relator contends that the decree of June 12, 1937, was a final decree, not only as to severance of the marital tie but also with respect to the provisions relating to the custody and control of the minor child; that plaintiff's application for modification of the decree is in the nature of a new proceeding, and notice of the hearing must therefore be served upon the defendant, not upon his attorney; that an order modifying provisions respecting the custody or control of minor children involves substantial rights, and notice of the hearing of an application for such order cannot legally be served upon an attorney, the rule being that only papers on technical formalities may be served upon an authorized attorney and then only after the adverse party has been brought into court by writ, process or other papers, or has filed appearance; that, except as to technical formalities such as those concerning cost bills, notices of motions for new trials, and notices of appeal which arise out of final judgment, the authority of an attorney terminates with the entry of final judgment, regardless of whether there is either reserved or inherent jurisdiction to modify.

In support of their position that service of notice on defendant's attorney of record in the divorce action was sufficient to give the trial court jurisdiction to hear and determine the motion to modify, respondents argue that: "A. Whether service on George Springmeyer, as attorney of record for defendant in the original divorce proceeding was proper upon a motion to modify the decree was a question of fact for the lower court to decide and the court's decision finding George Springmeyer to be the proper person to serve in the proceeding should be upheld; B. Even if it is assumed that the propriety of service upon defendant's attorney is not a question of fact for the lower court to decide, it is clear that service upon the attorney of record in an original divorce proceeding is sufficient to give notice to defendant of motions to modify the decree."

District courts have jurisdiction, for good cause shown, to modify provisions in divorce decrees respecting the custody of minor children, after entry of such decrees, at any time during the minority of such children. State ex rel. Jones v. Second Judicial District Court, 59 Nev. 460, 96 P.2d 1096, 98 P.2d 1096.

The application for such order of modification may be made by motion in the original action Moore v. Superi Court, 203 Cal. 238, 263 P. 1009; Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252; Purdy v. Ernst, 93 Kan. 157, 143 P. 429; Wells v. Wells, 209 Mass. 282, 95 N.E. 845, 35 L.R.A., N.S., 561; Wald v. Wald, 168 Mo.App. 377, 151 S.W. 786; Thornton v. Thornton, 221 Mo.App. 1199, 2 S.W.2d 821; Rogers v. Rogers, 51 Ohio St. 1, 36 N.E. 310; Karren v. Karren, 25 Utah 87, 69 P. 465, 60 L.R.A. 294, 95 Am.St.Rep. 815; Leonard v. Willcox, 101 Vt. 195, 142 A. 762; 19 C.J. p. 352, n. 56, p. 359, n. 77; 27 C.J.S., Divorce, § 322; 17 Am.Jur. p. 519, n. 11.

Before such order of modification can be made, proper notice of the application must be given to the adverse party. Abell v. Second Judicial District Court, 58 Nev 89, 71 P.2d 111.

The main question in this case is whether service upon Mr. Springmeyer of plaintiff's notice of motion for an order modifying the divorce decree gave the district court jurisdiction to hear and determine that motion. It cannot be laid down as a categorical rule applicable to all cases that service of notice of a motion to modify provisions in a divorce decree relating to the custody or control of minor children, made upon the attorney of record in the original divorce action, is never sufficient, nor that such service is always sufficient, to confer upon the trial court jurisdiction to entertain such a motion. If the attorney of record for the adverse party in the original divorce action is still representing that party at the time notice of motion to modify is served upon him, the trial court acquires jurisdiction to hear the motion. Moore v. Superior Court, supra; Bancroft's Code Pl., Pr. and Rem., 10-year Supp., vol. 4, p. 3453, § 4728, n. 3. In a case in Illinois, one of the jurisdictions relied on by relator, service on the attorney of record in the original divorce action was held sufficient when considered with other facts and circumstances. McNab v. Dunsmure, 274 Ill.App. 560. In another Illinois case, under different circumstances, such service was held insufficient. Cummer v. Cummer, 283 Ill.App. 220.

It is not correct to say that in a case of this kind the divorce decree is final in all respects. It is conclusive as to the severance of the marriage tie and, even with respect to the custody of children, the decree is final under conditions existing at the time it is rendered. Abell v. Second Judicial District Court, supra. But after rendition of the decree conditions having changed, the trial court retains jurisdiction to modify the decree with respect to the custody of minor children; also with respect to the support of such children when jurisdiction as to such support has been reserved in the decree. State ex rel. Jones v. Second Judicial District Court, supra; Fleming v. Fleming, 58 Nev. 179, 72 P.2d 1110. In these respects the decree is not final. Moore v. Superior Court, supra; Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 70...

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