Owen v. Owen

306 So. 2d 895, 1975 La. App. LEXIS 2997
CourtLouisiana Court of Appeal
DecidedJanuary 21, 1975
DocketNo. 12501
StatusPublished
Cited by4 cases

This text of 306 So. 2d 895 (Owen v. Owen) 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
Owen v. Owen, 306 So. 2d 895, 1975 La. App. LEXIS 2997 (La. Ct. App. 1975).

Opinion

BOLIN, Judge.

Plaintiff, alleging she obtained a judgment against defendant awarding her alimony of $400 per month, sued defendant to have past due alimony of $1,000 decreed due and executory. From judgment in favor of plaintiff defendant appeals. We affirm the ruling of the lower court.

The primary question is whether service of process on defendant through his “attor[896]*896ney of record” and subsequent actions taken by the attorney constituted sufficient citation upon which to predicate the judgment against defendant.

It is axiomatic that only those things which are made part of the record may be considered on appeal, and therefore we shall limit our recitation of the facts to the pleadings which are before this court.

On June 4, 1974, plaintiff filed a pleading entitled “Rule for Contempt, [and] for Accumulation of Alimony Arrearages”. In this petition plaintiff alleged she had obtained a judgment on August IS, 1973 against defendant awarding her alimony of $400 per month; that defendant had failed to pay the payments for April, May and June, 1974, and that as of June 1, 1974 there was a balance due of $1,000. Plaintiff asked that a rule issue directed to defendant ordering him to show cause why the past due alimony should not be decreed executory and why he should not be adjudged guilty of contempt of court. The prayer of the petition was “that a rule nisi issue herein directed to defendant, Joe Baker Owen, ordering him to show cause” why the relief sought should not be granted.

Pursuant to this petition an order was signed on June 4, 1974, making the rule returnable on June 12, 1974 at 10:30 a. m. The citation was directed to “Joe Baker Owen thru Robert Donovan, Attorney of Record” and the sheriffs return thereon reflects that service was made on June 5, 1974 on Joe Baker Owen by personal service on “Robert Donovan Atty of Record.”

On June 12, 1974, Robert J. Donovan, Jr., filed an answer to the rule wherein he stated, “Now into Court, through undersigned counsel, comes Joe Baker Owen, for the purpose of answering to plaintiff rule for contempt and for accumulation of alimony, with respect shows:” Thereafter follows an answer in the form of a general denial. On the same day Donovan, again appearing as counsel for defendant, filed an exception to the citation wherein he alleged “that previous to the service of the said citation in the latter part of May, Joe Baker Owen instructed his counsel that he desired not to take any further action in the case in Louisiana,” and that Joe Baker Owen had “contacted additional counsel in the City of Shreveport to represent him in this matter.” For these reasons the attorney asked that the exception to the citation be sustained and the rule for contempt and for accumulation of alimony be dismissed. On the same day Donovan, again appearing as counsel, filed a “Motion to Withdraw”, alleging, “That it is the desire of the defendant, Joe Baker Owen and the law firm Naff, Kennedy, Goodman, Donovan & Parnell that the representation by the said law firm of Joe Baker Owen terminate.”

The court sustained the exception to the citation as to the portion of the petition that defendant be adjudged guilty of contempt but overruled the exception as to the demand to make the past due alimony ex-ecutory. Trial of the rule resulted in judgment in favor of plaintiff against defendant for past due alimony in the sum of $1,000. At the conclusion of the hearing the court permitted Donovan to withdraw as counsel for defendant on June 12, 1974, at 10:40 a. m.

Present counsel, Maynard E. Cush, filed a motion for a rehearing or new trial on June 17, 1974, and in this motion it was alleged :

“4. That the defendant herein had previously dismissed the said Robert J. Donovan, Jr., as his attorney, and said attorney had acknowledged the fact that he no longer represented the defendant.
“5. Defendant alleges on information and belief that said Robert J. Donovan, Jr., had prepared a motion to withdraw but that same had not actually been signed.
“6. That, therefore, the citation upon Robert J. Donovan, Jr., as counsel for defendant, was improper, invalid, and not according to law.
[897]*897“7. That, therefore, since the rule seeks enforcement of a personal judgment, said service was improper and the Court was without jurisdiction over the person of the defendant, Joe B. Owen.”

Appellant contends Smith v. Smith, 257 So.2d 446 (La.App. 1st Cir. 1972) is controlling and that service on Donovan was insufficient to confer jurisdiction on the court to try the rule nisi. Counsel for ap-pellee counters this argument by citing Imperial v. Hardy, 302 So.2d 5 (La.1974).

In Smith plaintiff sought to obtain a judgment for alleged arrearages in alimony and child support from her divorced husband. Following the divorce the husband had moved from Louisiana to New York and at the time of suit he was a nonresident of Louisiana. The lower court sustained an exception to the jurisdiction over the person of the defendant and the lack of service of process, and the Court of Appeal affirmed. The basis for the decision was that under Articles 6 and 9 of the Louisiana Code of Civil Procedure the Louisiana court did not have jurisdiction over the person of a nonresident for the purposes of rendering an executory money judgment against him. The court further held that the Louisiana court did not continue to retain jurisdiction over the nonresident under the theory that the suit to collect past due alimony was incidental to the original divorce proceedings.

In Imperial v. Hardy, supra, the parties obtained a divorce in the State of Michigan. The wife was awarded custody of the children with the right to remove them to Louisiana. She was also awarded alimony for their support and maintenance. Thereafter proceedings were had in Michigan making past due alimony by the husband in favor of the wife executory. In the meantime the wife moved with the children to Louisiana and established their domicile in this state. Thereafter the husband filed several proceedings in Louisiana to enforce his rights of visitation, and the wife reconvened to have the amount of child support fixed by the court and to have the past due support payments fixed and made executory. Judgment was rendered in favor of the wife and no appeal was taken.

Several years elapsed when no actions were taken in Imperial, and on August 25, 1973, which was over three years after the last proceeding had been instituted by the husband, the wife caused a rule to be issued in Louisiana against her husband seeking an increase in the child support and to make the past due portion executo-ry. Service of these proceedings was made on the counsel of record for the husband, who then, alleging that he had been discharged, moved to withdraw as counsel. The Supreme Court held that the husband by participating in earlier proceedings in the same suit and by complying with the judgments entered therein, had waived objections to the jurisdiction and that personal jurisdiction over the husband was obtained by service on his attorney of record, even though several years had elapsed between the last two proceedings. In the course of the opinion we note the following:

“Sufficiency of the service of process on the husband’s counsel of record depends on whether the court has jurisdiction over the person of the husband.

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Cite This Page — Counsel Stack

Bluebook (online)
306 So. 2d 895, 1975 La. App. LEXIS 2997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owen-v-owen-lactapp-1975.