ALLEN v. ALLEN (1946)

This is an appeal from an order, in a divorce action, denying defendant's motion to vacate the court's order increasing plaintiff's allowance for support.

In the divorce action, the judgment had become final. The wife had custody of a minor child. The order which defendant sought to vacate by motion increased the wife's allowance to $37.00 per month; said order further provided, ‘The order for support of child is to remain at $25.00 per month.’

It is contended on appeal that the service of notice of the motion on defendant's counsel was not sufficient; it will be assumed that appellant contends, therefore, that the court was, for that reason, without jurisdiction to make the order. Appellant relies on McArthur v. Shaffer, 59 Cal.App.2d 724, 139 P.2d 959, and Winslow v. Harold G. Ferguson Corp., 25 Cal.2d 274, 153 P.2d 714. Neither of the cited cases is in point. In the within action, service was made on defendant's attorneys of record. In a divorce action, with the interest of a minor child involved, the court's jurisdiction is referred to as a continuing jurisdiction. There is no resemblance between the situations in the two above cited cases and appellant's position in the within action. On the contrary, Reynolds v. Reynolds, 21 Cal.2d 580, 134 P.2d 251, 254, is more in point. There the court declared: ‘A client may of course discharge his attorney at any time (see 3 Cal.Jur. 628, 635), but during the course of a proceeding service of papers on the attorney of record, where service upon the attorney is proper, binds the client until the attorney is discharged or substituted out of the case in the manner provided by law. Grant v. White, 6 Cal. 55, 56; Scarpel v. East Bay Street Rys., 42 Cal.App.2d 32, 115 P.2d 862. The court is concerned in such cases not with whether the client is represented by an attorney, but whether he has an attorney of record, whether any change in attorneys has been made as provided in section 284 of the Code of Civil Procedure, and whether notice thereof has been given as provided in section 285 of that code. The authority of an attorney, however, ordinarily ends with the entry of judgment, except for the purpose of enforcing it or having it set aside or reversed. See 3 Cal.Jur. 668. Nevertheless the judgment of divorce insofar as it relates to the custody and maintenance of minor children is not final. As to those matters the litigation must be regarded as still pending (Rosher v. Superior Court, 9 Cal.2d 556, 569, 71 P.2d 918; Lamborn v. Lamborn, 190 Cal. 794, 214 P. 862; Avila v. Leonardo, 53 Cal.App.2d 602, 608, 128 P.2d 43), and the provisions of section 1015 apply as well after as before the entry of the judgment. Moore v. Superior Court, 203 Cal. 238, 242, 263 P. 1009; see 78 A.L.R. 370, 376. The attorney of record is the person the client has named as his agent upon whom service of papers may be made. The statutes informed defendant that if he had no attorney of record the clerk of the court became his agent for the purpose of service. The burden lay upon the defendant to keep an attorney of record or to make such arrangements for notice with the clerk as he thought advisable. See [State of] Washington ex rel. Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361, 53 S.Ct. 624, 77 L.Ed. 1256, 89 A.L.R. 653. If defendant had noted his discharge of Loucks in the record, plaintiff could have made service on the clerk of the court. The record, however, showed Loucks and Phister as counsel, and the court and opposing counsel were entitled to rely thereon until it was changed in the manner prescribed by law.’ The Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix, § 501 et seq., therefore, has no application to the within action. It is noteworthy, moreover, that inasmuch as the court's jurisdiction continues in such circumstances, there is nothing in the law to prevent appellant from making any kind of an appropriate motion to reduce the payments at any time.

For the foregoing reasons, the order is affirmed.

I dissent:

In the instant case, it is conceded that at the time the order appealed from was made, appellant was in the military service of the United States.

It is true appellant engaged counsel who represented him in the divorce action and filed an answer in his behalf. But the final decree in that action was entered on January 8, 1941, at which time the professional relationship between appellant and his counsel was terminated.

Nothing further occurred until April 21, 1943, when the attorney for respondent served upon the attorney who had represented appellant in the divorce action, a notice of motion re modification of the order made in the divorce decree for the support of respondent wife. This proceeding has no reference whatever to the support of the minor child of the parties.

When service of this notice of motion was made upon appellant's former attorney by mail on April 22, 1943, the attorney was in Washington, D. C. The motion was noticed for hearing on May 19, 1943. When appellant's former attorney returned from Washington on May 10, he wrote to respondent's attorney in part, as follows:

‘I do not have the address of the defendant in the action, but do know that he is in the military service of the United States government.

‘I will attempt to locate him and ascertain his desire concerning any appearance on his behalf, but, of course, am not authorized to represent him at the present time.

‘My services as attorney for Mr. Allen terminated at the time the divorce proceedings were completed, and it will be necessary to so advise the court at the time of the hearing.’

On the same day, appellant's attorney wrote to appellant's mother, inquiring of her whether she knew the address of her son. Whether reply was received to this last-mentioned communication does not appear in the record, but on May 11, 1943, respondent's attorney advised appellant's former attorney by letter that, ‘You might be able to reach Mr. Allen care of the Inshore Patrol Pacific, 15th Naval District, Balboa, Canal Zone. His Personnel Officer is Lt. (J.G.) H. B. Brown, Jr., U. S. N. R.’

Immediately, upon receipt of this letter, appellant's former attorney addressed a letter to him at the address given in the communication from respondent's attorney, but, according to the record, such letter was never received by appellant.

When the motion for modification was called for hearing on May 19, 1943, the attorney who had represented appellant appeared in court and advised the court of the foregoing facts. The matter was continued to June 15, 1943, at which time the attorney again appeared and the court was advised that said attorney had been unable to contact appellant. Nevertheless, the court, proceeding with the hearing, made the order from which this appeal was taken.

In the court below, and now on appeal, respondent relies strongly upon the case of Reynolds v. Reynolds, 21 Cal.2d 580, 134 P.2d 251. The same case is also cited in the majority opinion as being determinative of the questions presented on this appeal. However, I am persuaded that the Reynolds case is not in point and is easily distinguishable from the facts of the case at bar. In the Reynolds case the appellant was furnished by mail with copies of the papers and admittedly received them. He thereupon engaged the services of counsel who appeared for the sole purpose of objecting to the jurisdiction of the court on the grounds that appellant was a non-resident, had not been personally served with notice within this state, and that the attorney who had represented him previously had not in fact been his counsel for more than three years.

In other words, in the Reynolds case the appellant, who was in military service, received copies of the papers in re modification, engaged the services of counsel to represent him at the hearing, and chose to object to the jurisdiction of the court rather than to oppose the motion on its merits. The case now engaging our attention presents no such analogous situation. In the instant proceeding, appellant had no personal notice, or notice of any kind, of the motion to modify the final divorce decree, nor did he have any opportunity to appear and defend against it.

Upon his return from service, appellant immediately, and within 90 days, took appropriate steps to avail himself of a remedy expressly provided by federal statute, Sec. 200 of the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat.L. 1180, Title 50 U.S.C.A.Appendix, § 520.

In part, that section reads as follows:

‘Sec. 200. (1) In any action or proceeding commenced in any court, if there shall be a default of an appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. Unless it appears that the defendant is not in such service the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court may make such other and further order or enter such judgments as in its opinion may be necessary to protect the rights of the defendant under this Act.

‘(2) * * *.

‘(3) * * *.

‘(4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. Vacating, setting aside, or reversing any judgment because of any of the provisions of this Act shall not impair any right or title acquired by any bona fide purchaser for value under such judgment.’

I am unable to understand how it can be held that in a proceeding of this kind a party can be said to have been represented by counsel when he knew nothing of the proceeding and where the attorney served with notice of the same had not represented the interested party since the entry of a final divorce decree more than two years prior to the commencement of the instant proceeding.

In the case of Reynolds v. Reynolds, supra, 21 Cal.2d at page 586, 134 P.2d at page 255, the Supreme Court, after referring to the fact that appellant was apprised of the pending proceeding and engaged counsel to represent him therein, uses this significant language:

‘There is no ‘default of any appearance’ in such a case even though the defendant chooses to make only a special appearance to contest the jurisdiction of the court and therefore limits the authority of his attorneys to that issue. If that course proves ineffective he can hardly contend that he was not represented by counsel. There is nothing in the Soldiers' and Sailors' Civil Relief Act requiring the court to disregard the appointment of attorneys by the defendant and the course of action he decides upon and to appoint another attorney to embark upon another course of action on defendant's behalf.'

How different from the factual situation with which we are here concerned. In my opinion, if there ever was a case wherein the court should have, pursuant to the provisions of Subdiv. 4, section 200, of the Soldiers' and Sailors' Civil Relief Act, found that a member of the armed forces of the United States ‘was prejudiced by reason of his military service in making his defense thereto’ and reopen the proceedings so that the serviceman might be ‘let in to defend’, this is such a case.

In the case of Winslow v. Harold G. Ferguson Corp., 25 Cal.2d 274, 282, 153 P.2d 714, 718, our Supreme Court has thus stated the aims, purposes and objectives of the Soldiers' and Sailors' Civil Relief Act:

‘Congress, in the lawful exercise of its constitutional power, has thereby declared its purpose to protect those in the military service and to prevent injury to their civil rights during their term of service arising from judicial proceedings conducted against them in their absence. Such act is the supreme law of the land. U.S.Const., art. VI, § 2; Cal.Const., art. I, § 3; Annotation, 130 A.L.R. 774.’

Peculiarly significant and cogent to the situation now confronting us is the language contained in the case of McArthur v. Shaffer, 59 Cal.App.2d 724, 728, 139 P.2d 959, 961, wherein the court speaking through Presiding Justice Adams had this to say:

‘This statute was enacted in the interests of those in the naval and military service of the United States; and while under its provision courts may, in the exercise of their discretion, refuse to stay proceedings, they are obligated not to do so unless they are of the opinion that the interests of the person in the military or naval service will not be materially affected by a refusal.

‘In a recent case the United States Supreme Court said that the judicial discretion conferred on trial courts by the Soldiers' and Sailors' Civil Relief Act is the very heart of the policy of the Act; that ‘The discretion that is vested in trial courts to that end is not to be withheld on nice calculations as to whether prejudice may result from absence, or absence result from the service. Absence when one's rights or liabilities are being adjudged is usually prima facie prejudicial.’ Boone v. Lightner [319 U.S. 561] 63 S.Ct. 1223, 87 L.Ed. 1587.'

If the broad and sweeping relief provision of the Soldiers' and Sailors' Civil Relief Act is to be liberally construed to effectuate its purpose (Royster v. Lederle, 6 Cir., 128 F.2d 197), then, in my judgment, the court abused its discretion in not vacating the order of June 15, 1943 and permitting appellant to appear and defend against the motion which materially affected his civil rights during his term of military service.

That portion of the order denying appellant's motion to vacate the aforesaid order of June 15, 1943, should reversed.

DORAN, Justice.

YORK, P. J., concurs.