Trigo v. Riggs National Bank of Washington, D. C., 7458.

• Decision Date: 14 May 1975
• Docket Number: No. 7458.,7458.
• Citation: 338 A.2d 445
• Parties: Lynda O. TRIGO, Appellant, v. The RIGGS NATIONAL BANK OF WASHINGTON, D. C. Appellee.
• Court: D.C. Court of Appeals

338 A.2d 445

Lynda O. TRIGO, Appellant, v. The RIGGS NATIONAL BANK OF WASHINGTON, D. C. Appellee.

No. 7458.

District of Columbia Court of Appeals.

Argued November 29, 1973.

Decided May 14, 1975.

John G. Gill, Jr., Washington, D. C., for appellant.

William A. Bradford, Jr., Washington, D. C., for appellee.

Before KERN, GALLAGHER and PAIR^*, Associate Judges.

GALLAGHER, Associate Judge:

In May of 1971 appellant and her husband, who have four children, entered into a Separation and Property Settlement Agreement under which the husband was to pay appellant $400.00 per month alimony and $200.00 per month for the support and maintenance of the three children who were still minors. A year later the husband began to default on his support obligations, making only partial payments. After July of 1972, no further payments were forthcoming.

In April of 1972 the husband had resigned from his position with the District of Columbia Government and departed for Bolivia, apparently intending to take up permanent residence there. As a result of his employment, a retirement fund of approximately $15,000 had accrued, which, unknown to appellant at that time, was released to the husband's checking account at American Security and Trust Company (American Security) on his instructions during the last part of September 1972.

Appellant learned of the transfer of funds while checking with the Civil Service Commission about the possibility of getting the funds released to her as a substitute for her husband's support obligations, after he had refused to sign a withdrawal form for that purpose. She also learned that a woman posing as her husband's cousin had inquired of the Civil Service Commission regarding the retirement fund. This information led appellant to believe that her husband was surreptitiously attempting to remove his only remaining asset from the United States, using this woman as an intermediary.

Appellant was unable to satisfy the mandatory surety requirements of the attachment before judgment provision.¹ She managed, however, to find counsel willing to assist her, and on October 2, 1972 obtained a temporary restraining order barring withdrawal of any of the funds in the account at American Security.² Concurrently, appellant filed a complaint for maintenance and support and other equitable relief, against her husband and American Security, asking that an equitable trust be declared on the funds in the account and that the fund be utilized to satisfy her husband's support obligations.

While appellant was trying to obtain a hold on her husband's last assets, it appears that he was proceeding to prevent this. He wrote three checks, dated September 27, 28 and 29th, 1972 to Miss Nelly Laguna on his account at American Security, for sums totaling $7,500.00. Miss Laguna presented the checks to The Riggs National Bank of Washington, D. C. (Riggs), appellee herein, where she had an account, for deposit and cashing³ on September 28, September 29, and October 2, 1972.

The checks were not honored by American Security, when presented by Riggs for payment, because of the temporary restraining order enjoining disbursal of funds from the account. Riggs was able to apply funds in Miss Laguna's account against the unpaid checks, however, leaving a balance owing to it of $4,547.07. Riggs subsequently filed an unopposed motion to intervene in the suit pending between appellant and her husband for support and maintenance, on October 11, 1972, on the basis of its claim against the husband. A civil action against the husband for the money was also filed by Riggs the same day.⁴ In addition, Riggs obtained a writ of attachment before judgment⁵ for the $4,547.07 against the husband's account at American Security, which was served on American Security on October 12, 1972.

Having learned of the checks drawn on the account and Riggs' intervention in her suit against her husband, appellant moved for a preliminary injunction. Riggs opposed the motion insofar as it prevented the collection of its claim. American Security, as co-defendant below, responded to the motion by asserting that it was merely a stakeholder and requesting permission to deposit into the Registry of the Court the $12,319.45 held in the husband's account and thereafter be dismissed from the case.

A hearing was held on November 2, 1972 on the motion for preliminary injunction.

The court agreed that American Security was merely a stakeholder and dismissed it from the case after authorizing it to deposit the money in the account into the registry of the court. The court also granted appellant's request for a preliminary injunction, finding inter alia that:

unless this fund is continued now in the Court's possession and unavailable to the defendant, . . . the plaintiff would be irreparably damaged, in that [it] seems to be the sole remaining [asset] from which future support for the children could be obtained from the defendant, who has obviously fled to Bolivia. . . .

It would appear that if this fund would in any way be dissipated, that this could possibly prejudice the rights of minor children to future support, as well as the plaintiff herself.

Riggs, proceeding in its civil action against the husband and Miss Laguna, served the husband by certified mail in Bolivia. The husband thereafter appeared through his counsel in the civil suit and agreed to the entry of a consent judgment against him in favor of Riggs for the amount of $4,547.07, without interest and costs. The judgment was approved by the trial court and entered on December 15, 1972.

On December 29, 1972 appellant filed a motion for temporary alimony, maintenance and support for herself and the two children who were still minors, and for counsel fees pendente lite.⁶ Riggs filed a response, relating the facts surrounding the consent judgment it had received and opposing the motion insofar as it might reduce the fund in the Registry of the Court below the $4,547.07 to which Riggs claimed it was entitled under the consent judgment. Appellant's husband also responded through counsel, agreeing that he was in arrears in his support and maintenance obligations. He requested that a hearing be held to determine the amount due appellant, a reasonable amount in counsel fees for appellant's counsel and a resolution of the conflicting claims of appellant and Riggs to the remainder of the fund.

The hearing on appellant's motion for temporary support and maintenance and counsel fees pendente lite was scheduled for February 12, 1973. On that date, however, appellant, Riggs and counsel for the husband entered into a consent order approved by the court, which directed that appellant be paid $4,028.00 as the arrearage then due and owing to her under the Support and Maintenance Agreement. Additionally the order awarded appellant's counsel $1,500 counsel fees and directed that appellant be paid $332.00 per month on the first of each subsequent month:

so long as there remains a balance in excess of $4,547.07 in the registry of the Court in this case, or until further order of this Court, it being the understanding of the Court and all parties that the right to said $4,547.07 balance will be settled by litigation between Plaintiff, Lyndo [sic] O. Trigo and Intervenor, Riggs National Bank.

On the basis of the consent order and the settlement reached, appellant in a signed release dismissed the suit against her husband and freed him from "any and all future obligations of support, alimony and maintenance for herself over and above the payments outlined in the Court's consent order of February 12, 1973 which relate to the husband's funds previously paid into the Registry of the Superior Court. . . ."

The only remaining issue in the case, the disposition of the $4,547.07, was certified for trial. As the parties stipulated that the facts were undisputed and the controversy was purely a question of law, no evidence was presented. The trial court issued its Conclusions of Law and Order and found that Riggs was entitled to the $4,547.07 held in the Registry of the Court. It is from that order⁷ that this appeal was taken.

The trial court found, in essence, that the temporary restraining order obtained by appellant on October 2, 1972 was a sufficient seizure of the fund to give the court in rem jurisdiction to allow it to determine who was entitled to the money. The court further found that Riggs' claim did not become a lien on the fund until delivery of the attachment before judgment to the United States Marshal⁸ on October 11, 1972, so that Riggs' claim, being inferior to appellant's, was not entitled to payment until the attachment first served was paid.

We are in agreement with these conclusions. Where we disagree, however, is in the answer to the following question posed to us in this appeal: Accepting the fact that appellant's claim is superior and is entitled to be paid first, to what part of the fund held in the Registry of the Court does appellant's claim apply? The trial court determined that appellant's claim could not be granted for any anticipated future maintenance installments not yet due and owing and therefore concluded that appellant's claim covered only that part of the fund that was needed to satisfy support payments already past due.

The trial court's authority for its conclusion that appellant's claim could encompass no anticipated future maintenance installments is Adams v. Adams, D.C.App., 196 A.2d 915 (1964). In that case, the husband appealed from a trial court order which required him to continue to make child support payments despite the fact that the wife willfully disobeyed the terms of a custody award to which she had agreed and also went to Morocco with the children, in derogation of the husband's visitation rights. This court there decided that the mother's actions took the case outside the general rule that "a father's duty to support his minor children is undiminished by any controversy...