DocketNumber： 793
Judges： Cercone, Wieand, Hoffman
Filed Date： 1/4/1980
Status： Precedential
Modified Date： 10/19/2024
Helene E. Hutchison appeals from an order which opened two judgments entered for arrearages accumulated under an order entered against Robert D. Hutchison for the support of two children. We affirm.
The parties were married on December 8,1956 and divorced by a Nevada decree entered on December 19, 1972. Subsequently, they entered a property settlement agreement which required, inter alia, that appellee pay monthly the sum of $250.00 for the support of two children born of the marriage. In an action instituted by appellant in Washington County, the Court of Common Pleas there entered an order on June 7, 1973 which required appellant to comply with the agreement of January 15, 1973. This Court affirmed the order per curiam on January 3, 1974. Hutchison v. Hutchison, 228 Pa.Super. 793, 315 A.2d 283 (1974).
Meanwhile, on July 11, 1973, appellant caused an action for the support of the children to be instituted in Allegheny County. That Court, on August 21, 1973, entered an ex parte order directing appellee to pay support for his two children at the rate of $500.00 per month. On August 28, 1973, however, the Court granted appellee’s petition to vacate the order and scheduled a “rehearing” for September 5, 1973. On his petition, appellee specifically referred to the order which had been entered in Washington County and the appeal which was then pending in the Superior Court. On August 31, 1973, the rehearing was continued “until such time as is mutually convenient for the above captioned parties”.
On September 14, 1973, appellee moved to Las Vegas, Nevada, where he has continued to reside until the present time. On November 21, 1973, after appellee had left the state of Pennsylvania and before determination of the appeal from the Washington County order, appellant was able to obtain from the Family Court in Allegheny County another ex parte order which retroactively reinstated the earlier order directing appellee to pay the sum of $500.00 per month. The order of November 21, 1973 was entered with
On February 9, 1976, appellant filed in Allegheny County a petition for rule to show cause why judgment should not be entered against appellee for arrearages which had accumulated under that Court’s order. Appellee’s counsel of record was permitted to withdraw his appearance after he told the Court that he did not have appellee’s address and had not represented appellee for two years. Appellant was directed by the Court to effect service on appellee, but appellant did no more than send a copy of the petition and rule to appellee’s last address in Pennsylvania where she knew appellee had not lived for more than two years. Nevertheless, on March 22, 1976, the Allegheny County Court entered judgment against appellee for $15,500.00. Notice of this order was not given to appellee until November 8, 1976, when appellant's counsel sent a form letter demanding payment of the judgment in full within ten days. The letter was sent to appellee at his correct address in Nevada. However, it did not recite the basis for the judgment. When appellee did not respond, appellant commenced an action in Nevada to enforce her Pennsylvania judgment. A complaint was served on appellee in Nevada on February 23, 1977. He immediately employed counsel who took steps to resist appellant’s claim. Nevertheless, on August 10, 1977, the Nevada Court gave full faith and credit to the Pennsylvania judgment and declined to review the circumstances which had produced it. Thereupon, appellee took leave from his employment and returned to Pennsylvania, where he obtained counsel and moved to open the judgment entered in Allegheny County. His petition was filed September 23, 1977. At the same time, he moved to open a second judgment which had been entered against him for arrearages of $21,750.00 on April 5, 1977. This order had also been entered ex parte and without notice. The lower court’s order opened both judgments.
It is clear in the instant case that appellee has a partial, if not a full, defense to appellant’s claim, for he has made payments of approximately $7,836.00 under and pursuant to the order entered against him in Washington County. Cf. Silverstein v. Silverstein, 246 Pa. Super. 503, 371 A.2d 948 (1977). In addition, the repeatedly ex parte nature of the proceedings in Allegheny County raises sufficient issues pertaining to the validity of appellant’s judgments, as well as the initial support order, to suggest the presence of a meritorious defense.
Appellant’s failure to give notice to appellee of her several petitions to reduce arrearages to judgment also serves to explain appellee’s failure to appear and defend against the same. Indeed, even the original support order was entered without notice to appellee and at a time when an appeal from the Washington County order was unresolved.
Appellant argues, however, that appellee failed to act promptly to open the judgments entered against him. This requires that we focus on (1) the length of the delay between discovery of the judgment and filing the petition to
Initially, it must be recalled that appellee received no actual notice that an order of $500.00 per month had been entered against him until after a judgment had been entered against him for accumulated arrearages. The first judgment for $15,500.00 was entered on March 22, 1976, but appellee received no notice thereof until sometime after November 8,1976. This first notice, moreover, was merely a form letter demanding payment of a judgment. It did not inform appellee of the basis for the judgment or instruct him that a support order had been entered against him in Allegheny County. After he became aware of the nature of the judgment, he acted immediately to obtain relief. It is suggested that appellee erred by resisting appellant’s action to enforce the judgment in Nevada and that he should be charged with delay because he failed to proceed to open the judgment in Pennsylvania immediately and simultaneously. In retrospect, perhaps such a course may have been preferable. It is apparent, however, that after appellee became aware of the judgment he reacted promptly and reasonably. He engaged counsel and proceeded to resist the judgment which he then understood fully for the first time and which he considered, with some reason, to be inequitable and unfair. In the same manner, he resisted the judgment entered in Pennsylvania on April 5,1977. The delay, attributable to the course of action selected by counsel, did not represent an affirmative decision by appellee to sleep on his rights, and he should not be charged with intentional delay as a result thereof.
Within forty-four days of an unfavorable decision in Nevada, appellee arranged for a leave of absence from his job, returned to Pennsylvania, and filed a petition to open the judgments entered against him in Allegheny County. Under the circumstances of this case, which are exceptional and
Certainly, the court did not abuse its discretion in permitting the judgments to be opened. Simple justice demands that at long last appellee be given an opportunity to be heard.
The order is affirmed.