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District Court of Appeal, First District, Division 1, California.


Civ. 12032.

Decided: July 29, 1942

Freston & Files and Gordon L. Files, all of Los Angeles, for appellant. Leonard Comegys, of Los Angeles, for respondent.

Two appeals are presented upon this record, the first from an order increasing the allowance for the two minor children of the parties hereto from $55 to $116 a month, and the second from an order allowing suit money––attorney's fee and costs––to the respondent for defending the appeal from the first order.

By an interlocutory judgment of divorce dated October 24, 1933, entered in favor of respondent against appellant for extreme cruelty, appellant was ordered to pay $40 a month for the support of the children. A final judgment was entered on October 29, 1934. A few days thereafter, on November 8, 1934, the allowance was increased from $40 to $55, with respect to which no complaint is made. Six years later, on December 27, 1940, the court increased this allowance from $55 to $116, and it is this increase that gives rise to the first of these appeals, the appellant's contention being that the court had no jurisdiction to make it.

The history of this case is as follows: On June 3, 1933, respondent sued for divorce. Appellant filed an answer and with it a cross–complaint which he later withdrew. On the pleadings and on the trial appellant was represented by the firm of Loucks & Phister of San Pedro, and the order of November 8, 1934, recites that E. O. Loucks represented the defendant (appellant). Respondent's present counsel has represented her throughout. In the interval from November 8, 1934, to October 30, 1940, there were no proceedings in the case so far as the record shows.

On October 30, 1940, a notice was drawn up by respondent's counsel directed to the appellant and to Loucks & Phister, his attorneys, to the effect that on November 27, 1940, respondent would move for an increase from $55 to $116 a month for the support of the two children. An affidavit of the respondent was filed with this notice and an order to show cause was issued. On the same day counsel for respondent (whose office was, and is, in Los Angeles) mailed a copy of the notice of motion, affidavit and order to show cause to Loucks & Phister. The affidavit of service by mail deposes that these papers were “addressed to the attorneys of record for said defendant at the office address of said attorneys, as follows: Loucks & Phister * * * San Pedro, California.” The appellant at that time was on military duty in Iowa and an affidavit shows that respondent's counsel on October 31, 1940, “served” a copy of the order to show cause, notice of motion and affidavit on him by mail from Los Angeles. Attached to this affidavit of service is a registry return receipt signed by appellant acknowledging delivery in Iowa on November 4, 1940. On the day appointed for hearing, a special appearance was made by appellant's counsel of record on this appeal “for the sole purpose of objecting to the jurisdiction of the court” on the grounds that appellant was not a resident of California, had not been personally served with notice of the hearing within this state, or at any time or place, and that E. O. Loucks was not, and had not been, counsel for appellant for more than three years theretofore and that the service by mail upon his firm was ineffective. At the hearing this point was presented; the court ruled that it had jurisdiction, and appellant's counsel who had specially appeared declined thereafter to participate. The hearing proceeded, the court granted the motion, and this appeal was taken.

The first point presented is whether the service of the notice and order to show cause upon the attorneys who had represented the appellant in the divorce case six years before was valid as a service made upon attorneys then of record, and, hence, a valid service upon the appellant, § 1015, Code Civ.Proc. The “service” of the moving papers by registered mail upon appellant outside the state, this not being a case where service by publication was proper, was, of course, ineffectual for any purpose.

It is the general rule, as contended by appellant, that the authority of an attorney ordinarily terminates with the entry of judgment, except for the purpose of sustaining and enforcing the judgment, or seeking to have it set aside or reversed. 3 Cal.Jur., 668, § 71. On this point appellant cites Knowlton v. Mackenzie, 110 Cal. 183, 188, 42 P. 580; Frowley v. Superior Court, 158 Cal. 220, 226, 110 P. 817, and Widener v. Hartnett, 30 Cal.App.2d 165, 168, 85 P.2d 925. Sections 138 and 139 of the Civil Code provide that orders for the support of minor children may be modified or vacated from time to time. Such orders, therefore, although contained in interlocutory or final judgments of divorce, cannot, by any means, be treated as final. Rosher v. Superior Court, 9 Cal.2d 556, 559, 71 P.2d 918; Lamborn v. Lamborn, 190 Cal. 794, 214 P. 862. Indeed, in such cases the court retains continuing jurisdiction, the nature of which is discussed at length in Moore v. Superior Court, 203 Cal. 238, 241, 263 P. 1009. Hence, cases such as this are not within the general rule mentioned above. The appellant frankly concedes that under some circumstances, an attorney who has appeared for a party after final judgment may be presumed to continue to represent such party, and he concedes, further, that it is a question of fact whether an attorney so continues. The appellant's position is stated by his counsel as follows: “Where the evidence shows conclusively that the attorney has been discharged and no longer represents a party, service of notices upon such attorney is ineffectual for any purpose.” Citing the Moore case, supra, and Smith v. Smith, 42 Cal.App.2d 19, 20, 108 P.2d 47. The real inquiry on the present appeal is whether, as claimed by appellant, the evidence does, in fact, conclusively show that E. O. Loucks or Loucks & Phister were discharged as attorneys for appellant before the proceedings in 1940 were launched, and, if so, whether in the absence of a filed substitution of attorneys or court action they nevertheless remained attorneys of record for the purpose of the service of notices designed to bring their client into court from time to time.

Both sides rely upon the Moore case. Rarely are two cases more nearly parallel. In the Moore case, E. G. Ryker had represented the defendant husband in a divorce case where the judgment ordered the defendant to pay $30 a month for the support of the children and $12.50 at stated intervals for their clothing. The final judgment was entered April 12, 1915. Two years later the defendant went to reside in Portland, Oregon. On September 8, 1926, the plaintiff filed a notice of motion to increase the allowance from $30 to $60 and the clothing allowance from $12.50 to $50. Service of the notice was made by mail on said Ryker (whose office was in Oakland, while that of plaintiff's counsel was in San Francisco) and by mailing the papers to the defendant himself in Portland. The motion was resisted by a new attorney who appeared specially to question the jurisdiction and who moved to quash the service, and who, after an adverse ruling on jurisdiction declined to further participate. In presenting the jurisdictional point the defendant filed an affidavit of said Ryker showing that he had ceased to represent the defendant upon the entry of the final judgment. In each case the defendant–husband had left the state after the final judgment. In the Moore case eleven years elapsed, in this case six, between the final judgment and the new motion. In each case the motion was to increase an allowance for minor children. In each, the service was made upon the attorney whose name had appeared of record in the divorce case years before, and, in each, such service was supplemented by the mailing of the papers to the defendant himself out of the state. In each case there was a special appearance by a new attorney for the sole purpose of raising the jurisdictional question, and a declination by him to go further in the proceeding after that question had been settled. In each case the former attorney of record made a positive showing by affidavit that he had long since ceased to represent the defendant, and in each case there was an affidavit of service characterizing him as the attorney of record.

In the case at bar a very positive showing was made by the appellant. In his affidavit made in Iowa and used at the hearing, appellant deposed that E. O. Loucks never represented him after April 7, 1937, and, further, that on October 20, 1937, he wrote to Mr. Loucks from Washington, D. C., dismissing him and “terminating the authority of E. O. Loucks to longer represent” him as attorney or counsellor at law; and that since October 20, 1937, no attorney in California has represented, or had authority to represent, him in connection with this action, or in any other matter. The affidavit of Mr. Loucks fully corroborates appellant's affidavit, and states that since October 20, 1937, he had never represented, or had any authority to represent, appellant in connection with the action. It states further that on October 31, 1940 (the day upon which the notice of motion presumably was received), he had written to respondent's counsel “that this affiant's relationship as attorney for the defendant Jacob George Reynolds was officially terminated in the month of October, 1937.” The only showing in this record bearing upon the continued representation of appellant by E. O. Loucks or Loucks & Phister is, first, the fact that their names appear on the pleadings and files as attorneys for appellant, that is to say, upon such as were filed or entered prior to November 9, 1934, and, second, the affidavit of service by mail, made by respondent's counsel on October 30, 1940, wherein he deposed that on that day he had served the moving papers on the defendant “by placing a true copy thereof in an envelope addressed to the attorneys of record for said defendant at the office address of said attorneys, as follows: Loucks & Phister, Attorneys at Law, 215 Bank of San Pedro Building, San Pedro, California” and mailing the same, postage prepaid. (Emphasis ours.) In other words, there was no affidavit setting forth facts to show that E. O. Loucks or Loucks & Phister were, in October, 1940, still authorized to represent appellant, or otherwise contradicting the affidavits of appellant and E. O. Loucks to the effect that the employment had been terminated on October 20, 1937, except the affidavit of service. This, however, was precisely the situation in the Moore case where the Ryker affidavit definitely stated that his representation of Moore had terminated on the entry of the final judgment, and the only affidavit that could be said to contradict it was the affidavit of service. The Moore opinion does not say, in so many words, that the affidavit of service created the conflict but it does show that in resisting defendant's motion to quash, the plaintiff “introduced the affidavit of service of the moving paper therein, wherein it was asserted that said Ryker had at all times been and still was the defendant's attorney of record in said action.” 203 Cal. at page 240, 263 P. at page 1011. In the absence of such a showing in the affidavit of service in the Moore case there would have been no conflict presented by affidavit. Precisely the same may be said of the instant case. The fact that here there are two affidavits, each corroborative of the other, on the side of the appellant, as against one in the Moore case, is only a difference in the quantum of proof. If there was a conflict in the Moore case then there is a conflict in this case, for there is no distinction to be found between the facts of the two cases. In the order appealed from there is an implied finding of fact that there had been a valid service of the notice.

Appellant urges for the first time on appeal that the trial court had no jurisdiction to proceed because under the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A., 50, Appendix § 520, when a defendant defaults the plaintiff must file an affidavit showing defendant is not in military service, and unless such affidavit is filed no judgment shall be entered until the court appoints an attorney to represent defendant. The obvious answer to this contention is that there was no default, the trial court having held that defendant was already represented by counsel. The section has no application to this proceeding.

Two supplemental affidavits, tendered to the court at the hearing, were rejected. One was made by the appellant himself, wherein he deposed that the only lawyer he had ever employed in this case was E. O. Loucks, and that M. Phister had never been so employed. The other, made by Mr. Loucks, was to the same effect, and it showed also that while he had used the firm name of Loucks & Phister in signing the pleadings, he was the attorney for appellant; further that that firm had been dissolved on February 1, 1937, which was almost four years before the service of the notice in question. We are satisfied that although the firm had been dissolved, service upon Mr. Loucks (one of its former members) was sufficient if the firm had been, in fact, the attorneys of record, as the pleadings indicated, and service upon him was certainly sufficient if he, alone, had been the attorney of record, provided, of course, that the court found (as, impliedly, it did find) that either he or his firm still continued to be counsel of record in the case. While we think the court should have admitted these affidavits, there was no prejudice suffered by appellant because of their rejection.

In view of the language of the Supreme Court in the Moore case we are constrained to hold that the action of the lower court on the first appeal cannot be disturbed.

After the court had made the order just discussed a notice of appeal therefrom was filed by appellant's counsel of record on this appeal, whereupon the respondent served upon them and filed an application for the allowance by the trial court of suit money––$500 attorney's fees and $150 costs––“to enable her to properly appear, defend herself, and present her case” on appeal. At the hearing, appellant's counsel on this appeal presented in court a special appearance challenging, as in the first instance, the jurisdiction of the court. When the court disposed of that point counsel, as in the first instance, declined to take any further part in the proceedings. The court proceeded, and granted the motion as made. In the first instance the notice of motion was addressed to the appellant and to Messrs. Loucks & Phister, as his attorneys of record, and it was served by mail on the attorneys. In the case of the second motion, the notice was addressed to the appellant and to Messrs. Freston & Files, his attorneys, and it was served upon them. The record shows, as already indicated in the discussion of the first appeal, that Freston & Files appeared specially to challenge the jurisdiction of the court on the first motion, and that their authority then was limited to that alone. They did, however, file a notice of appeal from that order, and the record shows that their authority is now limited to the carrying on of the same challenge on this appeal. Granting that such is the limitation, the fact remains that, the appeal having been perfected, the respondent is entitled, of course, to present her side on appeal, and be represented by counsel. It is well settled that in domestic relations cases a wife is entitled, upon a proper showing, to the allowance of suit money to defend on appeal an order made in her favor by a lower court. Lamborn v. Lamborn, 190 Cal. 794, 214 P. 862, supra; Parker v. Parker, 22 Cal.App.2d 139, 70 P.2d 1003. Conceding that the authority of appellant's counsel of record on this appeal is restricted to the pressing of their jurisdictional point herein, we are satisfied that, being counsel now of record for appellant, a service upon them of the moving papers was valid as a service upon the appellant. § 1015, Code Civ.Proc. In so holding we are not to be understood as indicating that there was anything in the nature of a general appearance for appellant when this second notice of appeal was filed or that the door was thereby opened for the service upon appellant's counsel (of record on this appeal) under section 1015 of the Code of Civil Procedure, or otherwise of any and every notice in the future. All we do hold is that for the limited purpose of this appeal on the sole question of jurisdiction the authority of appellant's counsel of record on this appeal is broad enough to justify the service upon them of these moving papers, and that such service was valid as a service upon appellant.

For the reasons and upon the authorities discussed herein, we are satisfied that both orders appealed from should be, and each is, hereby affirmed.

I agree that the appeal from the order granting respondent's request for attorney's fees and costs to permit her to defend the appeal from the order increasing the allowance for the maintenance of the children should be affirmed for the reasons set forth in the main opinion. I also agree that the order increasing the allowance should be affirmed, but I arrive at that conclusion upon reasoning different from that used in the main opinion. It is there held that there was a conflict in the evidence as to whether Loucks and Phister were attorneys of record for appellant in October of 1940, so that service upon them or upon Loucks was sufficient to give the court jurisdiction over appellant. This conflict is found to exist because the affidavit of service by mail upon Loucks and Phister contains an averment that copies of the moving papers were “addressed to the attorneys of record for said defendant * * * Loucks & Phister.” It is held that this averment in an affidavit of service by mail creates a conflict with the positive averments of the affidavits of appellant and Loucks that the latter had been discharged in 1937. Support for this conclusion, it is held, is found in Moore v. Superior Court, 203 Cal. 238, 263 P. 1009. Although the factual situation there presented was practically identical with that in the instant case, and although there are clear implications in that opinion in favor of the interpretation placed upon it by the author of the main opinion in the instant case, that case was a proceeding in certiorari, and the actual holding was that, even if the trial court had committed error, such error could not be corrected on certiorari.

To hold that a mere averment in an affidavit of service by mail creates a conflict with the positive averments of opposing affidavits directed to the issue involved, does violence, in my opinion, to the purposes of the conflict rule. An appellate court is not a trial court, and where there is substantial evidence to support a finding that finding should not be disturbed. But for the rule to apply, the supporting evidence must be substantial. A formal averment in an affidavit of service is frail support indeed for a finding on a vital contested issue.

In my opinion there is a more substantial reason than that given in the main opinion to support the trial court's holding. It can be assumed that the evidence shows, as a matter of law, that Loucks was discharged by appellant in 1937, so that, as between appellant and Loucks, the latter was no longer the appellant's counsel. The record also shows that this change of relationship was not noted in the record of the divorce proceeding. It must be remembered that this is a divorce action involving the custody and maintenance of minors. In such cases by virtue of statute, § 138, Civ.Code, the court retains a continuing jurisdiction over its decree. That means that when the interlocutory decree was entered in 1933, and the final decree in 1934, such decree became final only as to the divorce. As to the care, custody, and maintenance of the children, the decree was not final––the court retained jurisdiction to modify such award dependent upon changed circumstances. It is conceded that in 1933 the court secured jurisdiction over appellant, and that at that time Loucks and Phister were his attorneys and appeared as such of record. Of course, a client may discharge his attorney at any time, and between the client and his attorney such discharge is effective when notice of discharge is communicated to the attorney. But if, during the litigation, an attorney who appears as such on the records is discharged, and the court and opposing counsel have no notice of the discharge, the court and opposing counsel may continue to deal with the attorney of record. Service of papers upon him, where service upon the attorney is proper, is good service until such attorney is discharged or substituted out of the case in the manner provided by law. See §§ 284, 285, 286, Code Civ.Proc. There would be no doubt that this rule would apply to an attorney of record prior to entry of final judgment. The same rule applies, in my opinion, after entry of judgment, in cases where the trial court retains a continuing jurisdiction. The reason for this rule is made clear when the provisions of section 1015 of the Code of Civil Procedure are considered. That section provides that when a person has an attorney in the action “the service of papers, when required, must be upon the attorney instead of the party” except certain designated papers not here involved. The section also provides: “When a plaintiff or a defendant, who has appeared, resides out of the State, and has no attorney in the action or proceeding, the service may be made on the clerk * * * for him.” After personal service has been secured over a defendant in a divorce action, he should not be able to nullify the continuing jurisdiction of the court by discharging his attorney and moving out of the state. If, after discharging Loucks, the fact of such discharge had been noted in the record, respondent, under section 1015 of the Code of Civil Procedure, supra, could have made a proper service by simply serving the clerk of the court. But the record showed Loucks and Phister as counsel. The court, and opposing counsel were, in my opinion, entitled to rely on the record until that record was changed in the manner prescribed by law.

The law is clear that once a judicial proceeding is commenced with jurisdiction over the person of the party concerned, it is within the power of the Legislature to provide that the court may bind such person by every subsequent order which the court retains jurisdiction to make, and this notwithstanding that the order is made after the removal from the state of the party affected by the order. Michigan Trust Co. v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed. 867; McSherry v. McSherry, 113 Md. 395, 77 A. 653, 140 Am.St.Rep. 428; Laing v. Rigney, 160 U.S. 531, 16 S.Ct. 366, 40 L.Ed. 525.

In my opinion, the order increasing the allowance should be affirmed on the ground here set forth.

I concur in the affirmance of both orders. On that increasing the allowance, it is my opinion that the order should be affirmed for the reasons given by Justice pro tem. GOODELL and the additional reasons given by Presiding Justice PETERS. I do not agree in the concurring opinion of the latter that “A formal averment in an affidavit of service is frail support indeed for a finding on a vital contested issue.” An affidavit of service may be used in evidence. Code Civ.Proc. § 2009. The weight to be given the probative effect thereof is ordinarily a question for the trial court.

GOODELL, Justice pro tem.