Tritto v. Tritto

OPINION By NICHOLS, J. This action was instituted in the Common Pleas Court of Mahoning County, Ohio, and is now in this court of appeals on questions of law from the judgment of the trial court in favor of plaintiff, Sophia Tritto, against her husband, Anthony Tritto. In plaintiff’s petition she allegees that she and defendant were married in New York City on the 17th day of January, 1943; that prior to the 10th day of September, 1954, an action was commenced by her in the Supreme Court of Westchester County in the State of New York for separation from bed and board against defendant, wherein an order was made for the payment of alimony for the support of plaintiff in the sum of $20.00 per week; that no part of that order was complied with by — 241 — defendant; that said action is still pending, and that said order is still in full force and effect to this date, and that as of November 21, 1952, there was due and owing the plaintiff from the defendant the sum of $7440.00. Plaintiff further alleges the defendant is possessed of certain described property situated in Mahoning County, Ohio; and further avers that by consideration of the Supreme Court of Westchester County, New York, on the 21st day of November, 1952, she recovered a judgment against said defendant in the sum of $7440.00 with $10.00 costs; that an exemplified copy of said judgment is attached to her petition; that said court was a court of general jurisdiction, duly created by the laws of the state of New York; and that no part of that judgment has been paid; and prays for judgment against defendant for $7450.00 and costs. Defendant, after admitting the marriage, and that said proceedings were commenced by plaintiff for separation from bed and board against, defendant, for answer alleges that no personal summons or notice was served upon him in the action set forth in the petition upon which such alleged judgment was obtained, nor did he appear in said action for the alleged judgment in the state of New York; that ever since November, 1945, his domicile and residence was in the state of Ohio, and that on November 21, 1952, he was a resident of the state of Ohio and did not discover or learn of the alleged judgment rendered by the Supreme Court of Westchester County until the commencement of this action; and defendant prays the petition be dismissed. By amended reply to defendant’s answer plaintiff denies each and every affirmative allegation thereof, and alleges:— “* * * service on the Order to show Cause why judgment should not have been rendered in the Supreme Court of Westchester County in the State of New York in favor of this plaintiff and against the defendant herein, was made on his attorney of record, Thomas Barnes, 31 Croton Avenue, Ossining, New York, on the 11th day of November, 1952, by an order of Elbert L. Gallagher, Justice of the Supreme Court in said county under date of November 7, 1952; that said order was issued under and by virtue of Section 1171-b of the Civil Practice Act for the State of New York which is as follows: “ ‘Where the husband, in an action for divorce, separation, annulment, or declaration of nullity of a void marriage, or a person other than the husband when an action for an annulment is maintained after the death of the husband, makes default in paying any sum of money required by the judgment or order directing the payment thereof, the court in its discretion may make an order directing the entry of judgment for the amount of such arrears, or for such part thereof as justice requires having regard to the circumstances of the respective parties, together with ten dollars costs and disbursements. The application for such order shall be upon such notice to the husband or other person as the court may direct. Such judgment may be enforced by execution or in any manner provided by law for the collection of judgments. The relief herein provided for is in addition to any and every other remedy to which the wife may be entitled under the law, provided that when a judgment for such arrears or any part thereof shall have been entered pursuant to this section, such judgment shall thereafter not be sub — 242 — ject to modification under the discretionary power granted by this section; and after the entry of such judgment the judgment creditor shall not thereafter be entitled to collect by any form of remedy any greater portion of such arrears than that represented by the judgment so entered. (Am. L. 1940 ch. 226, in effect Sept. 1; L. 1947 Ch. 743, in effect Sept. 1; L. 1948 ch. 212, in effect March 21).’ “Further replying plaintiff says that the Supreme Court of Westchester County in the State of New York, had continuing jurisdiction ever the person of the defendant and that the judgment heretofore rendered is valid and in full force and effect.” The facts disclosed by the record in the common pleas court of Ma-honing county are: Sophia Tritto, after having beén married to Anthony Tritto for a period of two and one-half years, moved out of their home in Ossining, New York, and filed her action against him on August 20, 1945, in the Supreme Court of Westchester County, State of New York, a court of general jurisdiction, where both parties resided at the time, wherein she sought a legal separation from bed and board, and an order for temporary alimony for her support during the pendency of the action and for her attorney fees. The attorney for Mrs. Tritto served her husband with notice to answer within twenty days or judgment would be taken by default. Anthony Tritto procured the services of Attorney Thomas H. Barnes, who was not then in partnership with any other attorney, for the purpose of answering the motion for temporary alimony, and Mrs. Barnes filed such answer on behalf of Mr. Tritto, praying that the motion for temporary alimony be denied. The matter coming on for hearing before M. B. Patterson, J. S. C., on the 12th day of September, 1945, and neither party appearing in person, the judge on motion of the attorney for plaintiff, “on reading and filing the notice of motion dated April 20, 1945, the affidavits of Emanuel Lauterbach sworn to the 20th day of August, 1945, and the affidavit of Sophia Tritto sworn to on the 20th day of August, 1945, and upon the Summons and Complaint in this action duly verified the 20th day of August, 1945, all in support of said motion, and the affidavit of Anthony Tritto sworn to the 4th day of September, 1945, and the answer of Anthony Tritto verified the 4th day of September, 1945, all in opposition thereto,” ordered that the defendant be directed to pay to plaintiff $150.00 for her counsel fee and to pay her $20.00 per week alimony during the pendency of the action. No further proceedings were taken in the New York court until the 5th day of November, 1952. In the meantime Anthony Tritto had removed from the State of New York to Youngstown, Ohio, where he has resided since about the first day of December, 1945. He here testified that he was unable to obtain employment in New York, and that after obtaining employment in Youngstown he wrote his wife letters inviting her to join him in Youngstown. She testified she never heard from him after the order for temporary alimony made September 12, 1945, both she and her attorney testifying that they did not know where he resided after he left New York. The parties have never been divorced, and no decree of legal separa — 243 — tion has ever been entered in her behalf. Of course the husband had the right to remove from New York to Ohio regardless of the reasons impelling him to do so, since he was in no sense a fugitive from justice in any criminal action. On the 5th day of November, 1952, Sophia Tritto caused her affidavit to be filed in the Supreme Court of Westchester County, New York, in which she set forth the fact that the order for temporary alimony had been made September 12, 1945; that “immediately after this order was signed the defendant left this jurisdiction and his whereabouts was unknown until one month ago”; that “because of his absence plaintiff was unable to serve upon the said defendant a certified copy of the said order”; that “the defendant is no longer in this jurisdiction having left this state shortly after the aforementioned order was signed. I have been informed that he is presently in Youngstown, Ohio.” Her affidavit stated that defendant has never made any payments pursuant to the previous order, has failed to pay the sum of $20.00 per week since the signing thereof, and the defendant is in arrears in the sum of $7440.00; that she makes this affidavit pursuant to Section 1171-B of the Civil Practice Act, “for an order, directing the Clerk of the County of Westchester to enter a money judgment in my favor and against the defendant in the sum of $7440.00”; that no other judgment has ever been entered for such sum, and that no previous application has been made for the relief or order sought herein. Her affidavit further sets forth that “Barnes, Barnes & Barnes, Esq. of 31 Croton Avenue, Ossining, New York, upon information and belief, have been and still are the attorneys for the defendant in this matter in this state. I, therefore, respectfully request that the court direct the service of these papers, including the order to show cause for service upon the defendant by serving his attorneys here in New York.” John E. Babchak, Jr., an associate of Emanuel Lauterbach, attorney for plaintiff, made affidavit that “on the 11th day of November, 1952, he served the within affidavit and order upon Thomas Barnes, Esq. attorney for defendant, Anthony Tritto, by delivering to and leaving personally with said Thomas Barnes, Esq. a true copy thereof”: and further “that he knew the person served as aforesaid to be Thomas Barnes, the person representing the defendant named in said Affidavit and Order.” It definitely appears that the order and affidavit were not served in strict accordance with the direction of the judge to serve Barnes, Barnes & Barnes, but Thomas H. Barnes, the original attorney for Anthony Tritto, received such notice, and on the 18th day of November, 1952, he filed his affdavit alleging that he is an attorney at law and a member of the firm of Barnes and Barnes, Attorneys-at-Law; and further avers:— “That the partnership of Barnes and Barnes was formed and commenced the practice of law as a partnership on January 1, 1946, and have never been and are not now attorneys for Anthony Tritto. “That your deponent is not an attorney for Anthony Tritto and has not been attorney for Anthony Tritto since on or about September 12, 1945. * * * “* * * no certified copy of order was ever served upon him and no copy of proposed order was ever served upon him.” — 244 — Thomas H. Barnes further avers that Anthony Tritto had left Ossining, and he has not heard from him either directly or indirectly since his departure over seven years ago, and does not know of his whereabouts except that the affidavit of Sophia Tritto in the present motion alleges that she is informed that he is presently in Youngstown, Ohio; and that deponent is not and does not consider himself attorney for Anthony Tritto since September 12, 1945, over seven years ago; and that this affidavit is made by deponent not as attorney for defendant, Anthony Tritto, but for the information of the court only. On the 7th day of November, 1952, the following order was made by Elbert L. Gallagher, Judge of the Supreme Court of Westchester County, New York:— “On the affidavit of Sophia Tritto, verified the 5th day of November, 1952, and on all the papers and proceedings heretofore filed and had herein. “Let, Anthony Tritto, the defendant above named, show cause before this court at a special term, Part I thereof, to be held in and for the County of Westchester, at the County Courthouse in the City of White Plains, on the 18 day of November, 1952, at 10:00 o’clock in the forenoon of that day or as soon thereafter as counsel can be heard, why an order should not be made directing the entry of judgment for the amount of arrears in the payment of the sums of money required to be paid by the defendant above named to the plaintiff above named under the order of this court made and entered on the 12th day of September, 1945, and requiring the defendant to pay to the plaintiff her expenses in bringing and carrying on this proceding and why plaintiff should not have such other and further relief as to the court may seem just and proper. “Sufficient cause appearing therefor, let service of this order and the affidavit upon which it is granted upon the said defendant’s attorneys Barnes, Barnes & Barnes, Esqs., 31 Croton Avenue, Ossining, New York, on or before the — day of November, 1952, be deemed sufficient.” Section 1171-B of the Civil Practice Act of the State of New York is correctly set forth in the amended reply of plaintiff filed in Mahoning County Common Pleas Court. Upon the trial of this action, as shown by the bill of exceptions filed herein, the deposition of Thomas H. Barnes was admitted in evidence and read wherein he testified he was not attorney for Anthony Tritto on November 21, 1952, in the proceedings entitled Sophia Tritto v. Anthony Tritto in the Supreme Court of Westchester County, New York; that he notified the Supreme Court of New York prior to November 21, 1952, by affidavit that the relationship of attorney and client had been terminated, his affidavit being filed not as attorney for Anthony Tritto, but for the consideration of that court alone; that there are two Thomas Barnes in the firm of Barnes & Barnes; that his name is Thomas H. Barnes, and the other member of the firm is Thomas G. Barnes; that Thomas H. Barnes is the attorney who filed the affidavit of Anthony Tritto in the matter of allowance of temporary alimony. As will be observed from the quoted affidavit of John E. Babchak, — 245 — Jr., the affidavit and order made in the proceedings to reduce the alimony order to judgment was served merely upon Thomas Barnes, without designating a middle initial. It further appears, as hereinabove set forth, that the judge of the court in that proceeding directed that the service of the order and affidavit be made upon “said defendant’s attorneys, Barnes, Barnes & Barnes, Esq., and be deemed sufficient.” Upon the trial of this action in Mahoning County, as shown by the bill of exceptions filed herein, Emanuel Lauterbach, the attorney who represented Sophia Tritto in the New York Court, testified as an expert and gave proof as to the authenticity of the quoted act, Section 1171-B, and also testified as to Statutory Rule of Civil Practice, Section 240, which says:— “Death, removal or disability of attorney. If an attorney dies, is removed, or suspended, or otherwise becomes disabled to act at any time before judgment in an action, no further proceeding shall be taken in the action against the party for whom he appeared until thirty days after notice to appoint another attorney has been given to that party either personally or in such manner as the court directs.” He then testified as to Rule 56, the rule for procedure, as follows:— “Substitution of attorneys. An attorney of record for an adult party or corporation may be changed by the filing, with the clerk of the court in which action or proceeding may be pending, of a stipulation in writing for such change of attorney, signed by the attorney and signed and acknowledge by the party. The making and filing of such stipulation shall have the same effect as an order of substitution. An attorney may also be changed by order.” Mr. Lauterbach testified that substitution had not been accomplished in the manner set forth in Rule 56. But it is noticed that the rule only says that an attorney “may be changed” and not that the rule prohibits a change in any other manner, and the affidavit of Mr. Barnes that he has not been attorney for Mr. Tritto since 1945 is not disputed, and Mr. Tritto testified that Mr. Barnes was employed only for the purpose of filing the affidavit opposing the allowance of temporary alimony and paid only for that service, which was evidently the understanding of both Mr. Barnes and Mr. Tritto. In his testimony Mr. Lauterbach quoted from Thomas v. Thomas, 178 Miscellaneous, Page 359, as follows:— “Generally, where a party appears by attorney one has a right to presume, nothing else appearing to the contrary, that his employment as such is a continuing one to the end of the litigation, and it is held that in ordinary cases an attorney has a right to consider his employment as so continuing unless dismissed by his client. However, it does not follow from the power of the client to discharge his attorney that it can be employed as a device to create a disability for the purpose of trial or to hamper or defeat the administration of justice. Where the condition of disability is thus created, whether done solely by the client, or resulting from collusion, the statute is inoperative. The true design of the law is, in a proper case, giving due consideration to attending facts and circumstances, to afford a party left without counsel a reasonable — 246 — opportunity to engage one to protect his interests and rights and the statute cannot be utilized or availed to have another and different purpose.” We have had some difficulty in identifying the quoted language as appearing in Thomas v. Thomas, supra, but find that Mr. Lauterbach selected from the opinion in that case disjointed sentences and quoted them as a single paragraph. The syllabus in the case of Thomas v. Thomas is too long to quote fully herein, but it will be seen that certain paragraphs of that syllabus may be construed as sustaining the position of the wife and other paragraphs are contrary thereto. That court apparently held that Rule 56, above quoted, was not the only way in which an attorney and client relationship could be terminated, and it is apparent by the use of the word “may” in that rule the court was justified in holding that “to discharge attorney, court order or special formality is not required, and any act of client indicating unmistakable purpose to sever relations is sufficient, and thereafter there cannot be legal continuance in case by attorney or appearance for or representation of the client.” That court held that Section 240 of the Civil Practice Act applied, but also held:— “Under statute relating to stay of proceedings in event of attorney’s disability, client’s right to discharge attorney cannot be employed as device to create disability to delay trial or to hamper or defeat administration of justice.” Thomas v. Thomas, 34 N. Y. S. (2d) 321. In this case the testimony of Thomas H. Barnes is to the effect that Mr. Tritto indicated that he would leave the state of New York rather than pay the temporary alimony allowed by the court. He states that he did not receive any copy of the order allowing temporary alimony, but is is quite clear that if he did not receive such copy he had left the state of New York without informing his attorney as to where he could be found, nor did he give any information to the court which would have enabled a notice of allowance of temporary alimony to be served upon him. He apparently followed the example of the ostrich and stuck his head in the industrial sands of Mahoning County where he has resided ever since. While Mr. Barnes, the attorney who represented the husband in the original action, testified that he did not consider himself as now being attorney for Mr. Tritto we think that the court of that jurisdiction was justified in the assumption that Mr. Barnes’ relationship as attorney had never been severed. While the notice was not served upon Barnes, Barnes & Barnes we think that it was served in the only manner which would reasonably give notice to Mr. Tritto under the circumstances, and that, the court was justified in holding that compliance with the provisions of Section 1171-B of the Civil Practice Act had been sufficiently complied with. The case of Thomas v. Thomas is severely criticized by the Supreme Court of two other jurisdictions of like authority. Cann v. Cann (204 Miscellaneous 1069) 127 N. Y. S. 57, and Hendry v. Hilton (283 Appellate Division 168) 127 N. Y. S. 458. However, the United States District Court for the Southern District of New York in the case of Commercial Laundry, Inc. et al, v. Linen Supply Assn. of Greater New York, — 247 — Inc. et al, 90 Federal Supplement 470, cites with approval the decision in Thomas v. Thomas, supra, and says in the opinion “and it is clear an attorney’s withdrawal from the case is a disability covered by the section,” referring to Section 240 of the New York Civil Practice Act Mr. Lauterbach also identified Minear v. Minear, 188 Miscellaneous 101, 66 N. Y. S. 2d 879; Davidson v. Ream, 175 App. Div. 6, Page 760; Ridder v. Ridder, 175 Miscellaneous, Page 84, which refers to the case of Michigan Trust Company v. Ferry, 228 U. S. 346; Muller v Muller, 184 New York Miscellaneous 587; Durlacher v. Durlacher, 173 New York Miscellaneous 329; Rosenthal v. Rosenthal, 201 Appellate Division of New York, Page 27 at 29, referring to Wulff v. Wulff, 74 Miscellaneous Reports 213, 133 New York Supplement 807, affirmed 151 Appellate Division 22. Mr. Lauterbach quoted from several of the above decisions. It is quite apparent that there is much confusion even in the state of New York as to whether the notice to the husband provided for in Section 1171-B would constitute due process of law. From our examination of the authorities available, however, we conclude that the order to reduce payments of temporary alimony to a lump sum, as was done in this case, is not the institution of a new action, but that the purpose of the section is solely to provide a means by which the wife may enforce, by execution, or by proceedings in the courts of the state where the husband may be found for the collection of the amount of such alimony which has not been modified or changed in the original action. Unquestionably Mr. Tritto, having entered his appearance in the original action was bound to know that if he did not move to modify the allowance of temporary alimony therein made it would accumulate to the amount subsequently found by the Supreme Court of the County of Westchester, New York. He made no move to modify that decree. Keeping in mind that Section 1171-B hereinabove quoted provides that the notice of application to reduce the several amounts to a lump sum “shall be given to the husband” as the court may direct, it is clear that such proceeding is upon motion ancillary to the action for separation and alimony, and if it be claimed that the court abused its discretion in requiring such notice to be served upon the attorney who filed the defendant’s answer then the remedy of the defendant would be to apply to the court of jurisdiction rather than to attempt to collaterally attack the action in the court in the proceeding instituted in the court of Mahoning county. It is apparent that the provisions of the quoted section do not attempt to provide due process of law necessary in the original action but only in an ancillary matter upon motion for the purposes therein stated, to-wit of enforcing the judgment theretofore rendered for alimony, which had not been modified. In this respect we cite in particular the case of Durlacher v. Durlacher, 173 New York Miscellaneous, 17 N. Y. S. (2d) 643. It is not the province of this court to declare the act unconstitutional. Since the New York Court had jurisdiction over the cause pf action — 248 — and in his answer filed in that court he entered his personal appearance therein, his remedy, if any, would have been to apply to that court to set aside its order if the notice to defendant was claimed to be insufficient rather than to attack the same collaterally in the Ohio court. It furthermore appears to this court under authority of Armstrong v. Armstrong, 117 Oh St 558, that even though the New York court had not made an order finding the total amount of temporary alimony due nevertheless plaintiff would have had an action in the courts of the state of Ohio to recover the accumulated amount of alimony provided by the judgment of the New York Court. That was exactly the situation in the Armstrong case. We find no error prejudicial to the rights of the defendant in this case which would justify this court in holding that the proceedings in the Supreme Court of Westchester County, New York, were unconstitutional and void, or in holding that the judgment of the common pleas court of Mahoning County, Ohio, should be reversed, and it is therefore affirmed. GRIFFITH, J, concurs in opinion and judgment. PHILLIPS, PJ, concurs in judgment.