Whitmer v. Whitmer

365 A.2d 1316, 243 Pa. Super. 462, 1976 Pa. Super. LEXIS 2996
CourtSuperior Court of Pennsylvania
DecidedNovember 22, 1976
Docket662, 688
StatusPublished
Cited by24 cases

This text of 365 A.2d 1316 (Whitmer v. Whitmer) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitmer v. Whitmer, 365 A.2d 1316, 243 Pa. Super. 462, 1976 Pa. Super. LEXIS 2996 (Pa. Ct. App. 1976).

Opinions

VAN der VOORT, Judge.

Appellant brings this action for partition of jointly owned personal property located in Pennsylvania. Her claim to the property rests upon a judgment awarding [465]*465her this property interest as “lump sum alimony” in a Florida divorce action. Appellee’s defense is a collateral attack on the Florida judgment as having been entered without due process of law and without jurisdiction over the Pennsylvania property.

The parties were married in Pennsylvania in 1946 and lived in this state until 1971 when appellant moved to Florida and established her domicile there. Appellee resides in Pennsylvania.

On December 11, 1972, appellant filed a complaint for dissolution of her marriage to appellee in the Twentieth Judicial Circuit Court in and for Lee County, Florida, demanding inter alia the adjudication of her rights in the stock and assets of Edward H. Whitmer Co., an unincorporated sole proprietorship owned by appellee, engaged in the rental of heavy equipment, principally cranes, and located in Pennsylvania.

Appellee was personally served with notice of the Florida suit, retained counsel who entered a general appearance on his behalf and entered into a contest of the merits of the case. Appellee’s counsel accepted service of all pleadings filed thereafter.

On February 2, 1973, a motion was filed by appellant in the Florida court to appoint a receiver for appellee’s interest in the business located in Pennsylvania. On March 5, 1973, a stipulation and trust agreement was signed by both parties and their counsel and filed with the Florida court wherein William Creehan, Esquire, of the Allegheny County Bar, was named as Trustee to sell the assets of the business and distribute the proceeds as the parties might further agree or as the court might order. The Florida court never acted upon this agreement nor did the Trustee ever take possession of the Pennsylvania assets.

On March 14, 1973, the Florida court ordered appellee to make certain payments to appellant as temporary ali[466]*466mony and child support. This order was ignored by appellee and on June 25, 1973, he was adjudged in contempt of court and an order entered for his commitment in jail for a period of 6 months unless he purged himself of his contempt. Appellee stayed out of the state of Florida and was not apprehended.

On April 13, 1973, appellant filed interrogatories and a notice to appellee to produce certain records appertaining to his Pennsylvania business. Appellee failed to produce the required records and his answers to the interrogatories were found by the Florida court to be unresponsive.

On August 29, 1973, appellee’s counsel petitioned the Florida court for authority to withdraw as counsel. The petition was set for hearing on September 10, 1973, but no order was entered in the matter. The parties are in dispute as to whether appellee’s counsel continued to represent him after September 10.

On September 11, 1973, the Florida court, on the basis of a finding that appellee had failed to comply with its earlier order directing the production of documents and answers to interrogatories, entered an order directing (1) that all pleadings theretofore filed by appellee be stricken and declared null and void; (2) that a default judgment be entered against appellee in favor of appellant; and (3) that appellant proceed to final judgment ex parte without further notice to appellee.

On September 27, 1973, a final hearing was held, of which appellee was notified by mail by counsel for both parties. Neither appellee nor his counsel was present at the hearing.

On October 1, 1973, a final judgment was entered by the Florida court. The judgment dissolved the marriage of appellant and appellee; awarded custody of a minor child to appellant; awarded appellant all right, title and interest in and to all property owned by the parties in [467]*467the state of Florida, as more particularly described in the judgment; and, finally, awarded to appellant an undivided one-half interest in the assets of Edward H. Whitmer Co. located in Pennsylvania. ' The Florida court purported to make a conveyance of this Pennsylvania property to appellant by the terms of its judgment. This portion of the Florida judgment read as follows:

“4. As and for the remainder of the lump sum alimony the Petitioner is awarded all right title and interest in and to an undivided one-half interest of all assets not referred to in paragraph 3 owned by Respondent in his sole name or jointly with any other person including without limitation the business known as the EDWARD H. WHITMER CO., located in Pennsylvania and any successor thereto formed subsequent to February 6, 1973, whether the business be operated as a sole proprietorship, partnership or corporation together with all of the assets of said business including without limitation the following:
4000 Manitowoc Crane
3900 Model M 100 Ton Manitowoc Crane
3900 Model M 65 Ton Manitowoc Crane
PH 666 Truck Crane
Gallion Truck Crane
Cash
“In the event the business or any part thereof or any of the assets of the business have been sold subsequent to the institution of this course of action on December 11, 1972 and the proceeds from such sale have been used for any other purpose other than to pay the valid debts and operating expenses of the business then in that event the Petitioner is awarded an undivided one-half interest in and to the said proceeds and any security therefore. This judgment shall act as a conveyance to the Petitioner of the property awarded to her in this Paragraph 4.” (Underscoring added)

[468]*468Appellee did not appeal the Florida judgment nor take exceptions to it in the Circuit Court which entered it.

On December 13, 1973, appellant brought this action for the appointment of a trustee to sell the assets of the Edward H. Whitmer Co. and partition the proceeds pursuant to the Act of April 27, 1927, 12 P.S. 1791. That statute is applicable by its terms “whenever personal property is owned jointly, by persons who are not partners, or are hot husband and wife, and any one of such persons desires to dispose of his or her right, title, and interest in said personal property, and cannot arrive at a satisfactory arrangement with the other owner or owners of such personal property for the disposition of such personal property . . .”

Appellee contests such a sale and partition of his Pennsylvania property on two grounds: (1) that the Florida judgment should not be recognized in Pennsylvania because he was denied due process of law in the Florida proceedings; and (2) that the Florida court had no jurisdiction over the Pennsylvania property in which it purported to convey to appellant an undivided one-half interest.

The first contention is without merit. If appellee was denied due process of law in the Florida court, his remedy was in that jurisdiction, either by further proceedings before that court or by appeal. The Florida judgment is not subject to collateral attack in Pennsylvania. The Florida court had jurisdiction over both parties. Appellant initiated the Florida action and resided in that state while appellee entered a personal appearance and contested the litigation.

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Cite This Page — Counsel Stack

Bluebook (online)
365 A.2d 1316, 243 Pa. Super. 462, 1976 Pa. Super. LEXIS 2996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitmer-v-whitmer-pasuperct-1976.