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09/05/84 ERIKA D. FINCK v. ROBERT W. FINCK

September 5, 1984

ERIKA D. FINCK, PLAINTIFF AND APPELLEE,
v.
ROBERT W. FINCK, DEFENDANT AND APPELLANT, AND THE UNITED STATES OF AMERICA ACTING BY AND THROUGH THE NAVY FAMILY ALLOWANCE ACTIVITY, GARNISHEE.



APPEALS FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, BROWN COUNTY, SOUTH DAKOTA. THE HONORABLE PHILO HALL, THE HONORABLE EUGENE E. DOBBERPUHL, Judges

Henderson, Justice. wrote the opinion. Dunn and Morgan, Justices, concur. Fosheim, Chief Justice, and Wollman, Justice, concur in part and Dissent in part.

The opinion of the court was delivered by: Henderson

HENDERSON, Justice. This appeal stems from a garnishment judgment filed May 31, 1983, and an order dated September 9, 1983, modifying and conditioning the bond for appeal. We reverse.

The parties herein were granted a divorce on May 10, 1982. Per the decree, appellant, Robert W. Finck, was ordered to pay appellee, Erika Finck, $600 a month as alimony, commencing April 1, 1982. Appellant made payments in accordance with the decree for the months of April, May, and June 1982. No payments have been received since. Sometime during this period, appellant left the State of South Dakota under dubious circumstances. It appears from the record that appellant is a fugitive from Justice. His whereabouts are unknown to appellee at this time.

On January 13, 1983, delinquent alimony payments were reduced to a money judgment of $4,200 plus attorney's fees and costs, all for a total judgment of $5,700 against appellant. Appellee began garnishment proceedings in aid of execution against appellant's United States Navy retirement benefits. Since late 1982, appellee has instituted these proceedings on a monthly basis. As each month's garnishment is reduced to judgment, summons for the next month's proceedings are issued, whereupon the process is repeated. Appellee receives $436.35 in garnished retirement pay in this manner.

As the whereabouts of appellant are unknown, appellee is only able to accomplish garnishment through service on appellant's attorney, George J. Rice. With each proceeding, appellant's attorney has filed a motion to withdraw as attorney of record, each motion accompanied by an affidavit stating that appellant cannot be contacted and therefore cannot be adequately represented as to his wishes in disposing of these matters. George Rice has filed these motions on September 22, 1982, December 17, 1982, January 13, 1983, March 22, 1983, and April 12, 1983.

The affidavit filed in support of the April 12, 1983 motion claimed that withdrawal should be granted as nothing was pending before the court which would prejudice appellant in any way and notice had been served by United States mail to appellant's last known address. A garnishment judgment had been issued March 28, 1983, and the next proceeding had not yet been commenced.

The court issued findings of fact and Conclusions of law and granted a judgment in garnishment on May 31, 1983. This judgment also denied appellant's attorney's motion to withdraw, subject to reconsideration only if appellant "shall first duly and properly appoint a new agent who is a resident of Brown County, South Dakota, to officially receive service of process for any and all matters related to said [Robert W. Finck]."

George Rice filed a "notice of Appearance as Attorney" for purposes of appeal on behalf of Robert Finck, July 28, 1983. Notice of appeal from the garnishment judgment was filed on that same date.

Pursuant to a motion of appellee, an order modifying and conditioning bond on appeal was issued September 9, 1983. The order required that appellant either post an undertaking in the amount of $20,000 by corporate surety bond to guarantee the payment of all arrearages and judgments previously entered or, alternatively, appear personally in open court and present a cash bond in the amount of $500. Notice of appeal from this order was filed on September 23, 1983.

We are presented with two basic issues: (1) Was it an abuse of discretion for the trial court to refuse the request for withdrawal by appellant's attorney, and (2) was it an abuse of discretion to modify the undertaking on appeal? We separately treat these issues.

ISSUE I.

We hold that it was an abuse of discretion for the trial court to refuse withdrawal of appellant's attorney under these circumstances. In previous affidavits, appellant's attorney repeatedly stated that he was unsuccessful in securing cooperation from his client, that he had written his client innumerable times, but that his letters were never returned. He urged the court that he could not continue to represent ...


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