Carrara v. Carrara

BRAY, J.

Defendant appeals from an order setting aside an order modifying a final decree of divorce.

Question Presented

Did the irregularity in substitution of plaintiff’s attorney deprive the court of jurisdiction to hear plaintiff’s motion?

Record

In a final decree of divorce, the joint custody of their minor child was awarded the parties. In May, 1952, the decree was modified to define defendant’s right of visitation. In that proceeding plaintiff was represented by Attorney Murray. August 15th, defendant mailed to the latter a notice that on August 22d he would move to modify the final decree to give defendant exclusive custody of the child. August 16th, Attorney Murray wrote defendant’s attorney to the effect that his services for plaintiff were concluded with the filing of the previous modification order; that he had never been formally substituted for plaintiff’s attorney of record who represented her at the time of the final decree; that plaintiff had disregarded his advice, had not paid his fee, had not given him her address nor communicated with him; and that “in the absence of judicial compulsion my legal counsel and representation are no longer available to plaintiff. ... In the circumstances I think service should properly be made on the plaintiff. You can probably obtain plaintiff’s address from Mrs. Carrara [defendant’s new wife] who is more familiar with the plaintiff’s location and address than I am. Thank you for giving me this opportunity to set the record straight, and conclude the matter in this office.” No effort was made to notify plaintiff. August 22d, defendant appeared and stated that Attorney Murray had written that he did not know where plaintiff was. On defendant’s testimony the court, made an order modifying the decree and giving defendant sole custody of the child subject to plaintiff’s right of visitation.

September 4th, Attorney Hirschberg, as attorney for plaintiff, served upon defendant’s attorney a notice of motion to set aside the order modifying the final decree of divorce, to be heard the next day. The grounds of the motion were “no proper service of the notice of motion to modify was served on the plaintiff herein; that

plaintiff was not represented at

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