Goldstein v. Goldstein

409 So. 2d 1245
CourtLouisiana Court of Appeal
DecidedJanuary 12, 1982
Docket12203
StatusPublished
Cited by5 cases

This text of 409 So. 2d 1245 (Goldstein v. Goldstein) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goldstein v. Goldstein, 409 So. 2d 1245 (La. Ct. App. 1982).

Opinion

409 So.2d 1245 (1982)

Judith S. GOLDSTEIN, a/k/a Judith S. Schniebolk
v.
Barry J. GOLDSTEIN.

No. 12203.

Court of Appeal of Louisiana, Fourth Circuit.

January 12, 1982.

Shushan, Meyer, Jackson, McPherson & Herzog, Donald A. Meyer and Bradley M. Smolkin, New Orleans, John M. Mamoulides, Dist. Atty., Parish of Jefferson, William C. Credo, III, Asst. Dist. Atty., Gretna, for plaintiff-appellee.

Tucker & Schonekas, Gibson Tucker, Jr., New Orleans, for defendant-appellant.

Before BOUTALL, CHEHARDY and KLIEBERT, JJ.

CHEHARDY, Judge.

Defendant, Barry J. Goldstein, appeals a district court decision in favor of plaintiff, Judith S. Goldstein, and against the defendant, recognizing and granting full faith and credit to a judgment of March 6, 1979, rendered by the Circuit Court in and for Montgomery County, State of Maryland, in favor of plaintiff and against the defendant in the sum of $4,002, together with all costs of both the Maryland and the Louisiana proceedings, plus legal interest on all amounts due from March 6, 1979 until paid.

A copy of the March 6, 1979 Maryland judgment was introduced at the trial on the merits of the present case. It states:

*1246 "Upon consideration of Petitioner Judith S. Goldstein, a/k/a Judith S. Schniebolk's Petition for Contempt; testimony from Petitioner that Respondent Barry Jay Goldstein is presently under Court Order to provide $630 per month child support; that there is an arrearage through February, 1979, of $3,355; the Court taking judicial notice of the parties' divorce decree dated May 13, 1974, this Court's Order of June 7, 1977, and this Court's Memorandum and Order of April 28, 1978; and the Court noting that although Respondent Barry Jay Goldstein was personally served on January 16, 1979, with a copy of Petitioner's Petition for Contempt and Show Cause Order, Respondent Barry Jay Goldstein did not personally appear in Court, nor did counsel appear in his behalf; it is by the Circuit Court for Montgomery County, Maryland, Sitting as a Court of Equity, this 6th day of March, 1979,
ORDERED, that Respondent Barry Jay Goldstein be, and hereby is, found to be in contempt of this Court's Orders of May 13, 1974, June 7, 1977, and April 28, 1978, and the Court shall further suspend imposition of any penalties at this time; and it is further
ORDERED, that judgment in the amount of $3355 be entered against Barry Jay Goldstein, as and for arrearages of child support; and it is further
ORDERED, that judgment in the amount of $647 be entered against Respondent Barry Jay Goldstein as and for reasonable attorneys' fees on behalf of the parties' minor children; and it is further
ORDERED, that costs for this action be assessed against the Respondent Barry Jay Goldstein; and it is further
ORDERED, that the present support payments of $630 per month shall continue until further Order of this Court and shall be paid directly to the Family Services Office in the Circuit Court for Montgomery County, Maryland."

Defendant now argues on appeal that the district court erred in overruling the exceptions to the Maryland court's jurisdiction, in overruling the exception of res judicata, and in forcing the case to trial in the court's summer session.

The defendant avers that the court should consider his plea of res judicata because contemporaneously with the Maryland divorce proceedings the plaintiff wife had instituted a URESA proceeding which on May 18, 1978 had resulted in a judgment in the Juvenile Court, Parish of Jefferson, State of Louisiana, condemning the defendant to pay the plaintiff child support of $250 per month. The defendant also testified at trial that he had made the payments regularly on that judgment ever since it was entered. However, in Moreau v. Falgout, 304 So.2d 429 (La.App. 1st Cir. 1974), the court said at 431:

"It is defendant's principal contention here that the judgments of the court in Alaska (URESA), originally in the sum of $175.00 per month and later reduced to $140.00 per month, had the effect of modifying previous judgments of the 16th Judicial District Court for St. Mary Parish which provided for payments of $220.00 per month from October, 1962, until September of 1964, when it was reduced to $195.00. This contention is without merit. The courts of this state have always been open to the defendant to seek a modification of its decree by proper procedure. Defendant did not elect to do this. In Davis v. Contorno, 234 So.2d 470 (1st La.App.1970), we held that L.R.S. 13:1643 `... provides that the remedies available under URESA are in addition to and not in substitution of any other remedies.' 234 So.2d 470, 473."

Although defendant can, therefore, claim credit for the amounts paid under URESA prior to the Maryland judgment for arrearages, he cannot urge that a judgment rendered pursuant to the URESA procedure modifies a previous judgment of another court.

Neither can this court agree with defendant's argument that the Maryland court did not have jurisdiction over him at the time the March 6, 1979 judgment was rendered *1247 and, therefore, the Louisiana district court should not have given full faith and credit to that judgment. Mr. Goldstein testified he moved from Maryland in July of 1977. He said, in regard to the subject Maryland judgment, he had been served with papers in connection with the action in January of 1979 at his address in Louisiana. He said that although he was advised by an attorney to ignore the Maryland proceedings, he did write a letter to the clerk of court in Maryland sending him a copy of the URESA Louisiana judgment.

In the case of Webb v. Webb, 357 So.2d 1288 (La.App. 3d Cir. 1978), the court stated it has long been established that in order for a court to render an award of alimony for a wife or child, it is necessary that there be jurisdiction over the person from whom alimony is due, usually the father and former husband, because this involves a monetary judgment. The court also said at 1290-1291:

"It is basic law that once the jurisdiction of a court attaches in a controversy, jurisdiction is maintained throughout the proceedings and cannot be defeated by removal of the person beyond the jurisdiction of the court. As the Supreme Court stated in Imperial v. Hardy, [302 So.2d 5 (La.) ] supra:
`When a judicial proceeding is begun with jurisdiction over the person of the party concerned it is within the power of the State to bind him by every subsequent order in the cause. Mr. Justice Holmes called this rule "one of the decencies of civilization that no one would dispute." Michigan Trust v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed. 867 (1912). It would be intolerable if an action once properly begun could not proceed without the continued existence of the original basis for jurisdiction. Under such a rule a litigant who had availed himself of the court's jurisdiction at the inception of the case could avoid the entry of judgment against him by the simple expedient of withdrawing from the State.'

[Citation omitted]

"It is on this basis that Louisiana courts have recognized the concept of continuing jurisdiction in child support and alimony matters where an increase or modification of the award is desired against the nonresident defendant.

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