Troncale v. Troncale

WOOD, P. J. Plaintiff appeals (1) from an order which vacated an order modifying a portion of an interlocutory judgment of divorce relating to support of minor children; and (2) from an order thereafter made which modified portions of the interlocutory and final judgments relating to such support.

Appellant contends that the court did not have jurisdiction to vacate the first order above-mentioned, and that the court abused its discretion in vacating the order; and that the court abused its discretion in determining the amount to be paid under the second order.

Plaintiff obtained an interlocutory judgment of divorce on July 2, 1953. The judgment awarded custody of the two children (Dawn and Angela) to plaintiff, and ordered that defendant pay $20 a week for their support. The final judgment, which was entered on July 26, 1954, stated that the provisions of the interlocutory judgment, with respect to support of children, were “made binding on the parties” the same as if the provisions were set forth in full in the final judgment.

[88]On August 9,1957, pursuant to request of plaintiff, an order was made requiring defendant to show cause on September 3, 1957, why the interlocutory judgment (designated by plaintiff as “the order of July 1, 1953”) should not be modified to require defendant to pay: $175 a month for support of Dawn (aged 6 years) ; $10 a week for Angela (.aged 5 years) ; and attorneys’ fees. The order was not served on defendant personally, but a copy of the order was sent by mail to his attorneys of record.

Defendant was not present, nor represented by counsel, at the hearing of the order to show cause on said September 3. An order, made at said hearing, stated that the “order of July 1, 1953 [presumably the interlocutory judgment which bears that date but was entered on July 2, 1953],” was modified, and defendant was ordered to pay $175 a month for; Dawn, $10 a week for Angela, $100 attorneys’ fees, and $25 costs. Notice of entry of the modified judgment was served on defendant’s attorneys of record.

On February 21, 1958, defendant was adjudged guilty of contempt of court in that he wilfully failed to comply with said order of court made on September 3. He was sentenced to imprisonment in the county jail for five days and to pay a fine of $250. The sentence was suspended upon condition that defendant pay $250 to plaintiff to be applied on “the arrearage of child support” and attorneys’ fees. He paid said amount to plaintiff.