Brief for the Respondent in Opposition — Ghioto v. Hampton

tm

: Ocroner Tero, 1962

“ No. 423 |

Joux D. Giyrx,| : re

e . Appellant,

ae 2

. Mansorrz Docrormax a a ny ea

and: Demme Pesci. Gavines ano Loan ASssociaTION, - ~

- Respondents.

ath Jonny D. Quran.

Beverly Hills, California;

9171 Wilshire Boulevard,

a cc in Pro. Se.

ARTHUR H. NIELSEN and

DEAN CONDER

Newhouse Building

Salt Lake City, Utah

BERNARD L. ROSE

_ §3 East Fourth South

- Salt Lake City, Utah .

Appearing for the .

Respondents

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: . INDEX

ee 2 a Si

_. Page

Opinions a csceeendesccandnnnnnneesnscseeeees oo ' Saher ce ees 1

Jurisdiction ‘a oa isis onatusensbesrbiancsinas A Ronn Ne 1

Questions Presented .........--.------s-esecereneetens e ee 2

1s acne ven mee Nea er re sepresstiathbats 2

_ Argument coveeenseouterevesetennestnnecagenneessnsnernneanccnseennnneecnnnecetnaeeeentees 5

Conclusion Say raion ET Wc iiciicaicssiaaliegiiabbcdinbitis 8

y see ae Cases Cited

Bottone vs, Lindsley, 170 Fed. sa) 706; 69 S. Ct. 810;

ak:

836 U'S. 914; 98 L. Ed. 1101.

_ Forbes vs. Virginia State Council, 30 S. Ct. 205 #216

US, 396; 54°L: Ed. } BBA tet eres 6

6 Louis. & San Francisco Railroad Co. vs. H.B.Shep-

herd, 136 S. Ct. 274; 240 U.S. 240; 60 L. Ed. 622... 5

United States Bell Telephone Co. of Penn. vs.” Penn.

- Public: Utilities Comm., 60 S. Ct. 411; 309 U.S. 30;

' ‘Joun D. Gryss,

" Brief for all above named Respondents in opposition

| A ppendix.A.

IN THE

‘Supe Court of the United Sates,

OcToBER Tenn, 1962 ©

) No. 423

A ppellant,

vs. Pc cAS

Marsortr. DocrorMman Dvsin,. aka -Marsorte Docrormay

and Desr. RET Feperat Savings anp Loan Pe TR

Respondents.

Petition for a Writ of Certiorari to the District

. of the Third Judicial District in and for

County, State of Utah.

Opinions Below

The opinion of the Supreme Court/of Utah is re-

ported at 13 U tah (2) 163 and 369 Pae./(2) 930. A copy

of such opinion is attache d to patie er’s petition as

Jurisdiction

The ge ese hg) the Supreme Court of Utah was

entered on March 27, 1962. A petition for rehearing filed

by petitioners was: acaied May 14, whereupon judgmeiit.

bec ~ f inal. ° ‘

ff. 1

ite 92.

} I. Did Petitioner properly and” timely raise the

issue of violation of due process?

II. ‘Was Petitioner’s right to due process as enun-

ciated in the Fourteenth Amendment to the Constitution.

of the United States violated by failure .of service of

- process upon him in the Dubin vs, Dub divorce action?

:

Il. Does Petitioner's assertion! that the Third

Judicial District Court of the State of Utah andthe Utah:

Supreme Court erred by. misconstruing and misapplying

the Utah Fraudulent Conveyance Statutes’ (25-1-7, 8, 16,

18, U. C/A. 1953) raise constitutional 6r factual questions

reviewable by this Court?)

ae .. ‘Statement :

> Lot 24, East “Millbrook - No. 2, located in Salt, Lake

; County, State of Utah, was acquired’ by Marjorie Doctor-

‘man (then Dubin), hereinafter. called the Defendant and

Dr. Martin F. Dubin, in joint tenaney on-July 22; 1957.

The down payment, in excess of $10,500, was made out of

- funds accumulated by Defendant prior to marriage to

Dubin.

Defendant Marjorie | Doctorman Dubin sued Dr,

Martin F. Dubin in L separate maintenance in Case No,

2119467 in the District Court of Salt ‘Lake County in.

December, 1948, and recorded a lis pen@ens setting forth

that Marjorie Doctorman Dubin prayed for the property -

in dispute under claim of right. More than three months

after the said filing..namely on ‘the ISth day of: Mareh,

19: 59, an amen.ed complaint in ‘divorce oni the grounds of

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me A quitelait n- ‘deed, dated ‘Decomber:7, 1959, Was re- “i

7.1960, | a

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ernelty was ia neti forth Marjorie kiana

Dubin's principaf oufiay.in the sa property, her right.

to it, and requesting the Court te award her all of Dr...

Martin F.. Dubin’s right, title and interest in and to the_

same, ‘the said property, being: meticalously and partic u: .

larly described. .

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Petitioner Glynn Was, retained as ‘counsel - for Dr.

Martin i. ubipAn ‘that action, entéred his appearance as—

such, ° and anskvered” the amended ,coniplaint. He also J

filed a. Cross complaint for a divoree on behalf of his | eA

Client. Slaps. at 8

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carded the sane day in the office of the County Récorder

in Salt Lake C ounty, with Dr. Martin. F? Dubin as grantor

dnd John D. Glynn as Grantee, : Subsequently in the trial..

“ofthe instant matter, a promissory note dated Decerhber ©.

4.1! m9 Was pr esented as evidence of partial consideration ae

“therefor, Payments on the note were to hegin January

i cee oe

ae ° : > ;

Shortty after : 2 p.m, on Decembe PS, 1959, thé Honor: nae

able A. HH, latett, on hjs own motion, Mismissed Case No, :

Liar, wiffpiat prejudice to the rights of the parties and ee \t

granted leave t 0) proceed in another action, The Court's

reason for\stich dismissal was that it lacked. jur hei

heeause the amended complaint, seeking a. decree ot

A _ _ »dliyoree, related back to the date of original filing of the

separate Maintenance action, at which time neither party.

chad been a bona fide and aetual resident of the® State of

z tah for: } montis: : Py Ve

is ile ‘ wing ?

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Prior, however, to such dismissal, Marjorie Doctor-

man Dubin filed a new’action for divorce against Dr.

Martin F. Dubin (Case No. 123578), and caused to be.

_ issued by the Court an Order to Show Cause at 1:10 p.m.

December 8, 1959, against said Defendant Dubin. The*

Pleading filed by Mrs. Dubin (Defendant herein) specifi-.

cally deseribed the property here involved, claimed her »_

t

right thereto and prayed for distribytion ta-her of any,

’ “ elaimed interest therein by Dr. Martin F. Dubin. Lis

_ pendens was feeotded ‘at’1:45 p.m. . 9

Plaintiff herein, John D. Glynn, admitted he knew

prior to the execution and delivery to him of the deed

dated. December 7, 1959, that the down payment for this

property was made.by Marjorie Doctorman gubin from

her separate estate acquired -pripr to marriage to Dr.

Martin F. Dubin. He ‘admitted he knew that payments -

wert made on the property from the separate’ funds of |

Marjorie Doctorman Dubin: he admitted he knew that.

causes No. 119467 and 123578 were filed, praying. all

interest in the subject property he decreed to her.

Ye All this Glynn admitted in the trial of the instant

cause. He knew prior to the execution and delivery of the

deeds to him.

_ A quit-claim deed dated Giiciabee 8, 1959, with Dr.

Martin F. Dubin as grantor. and John D. Glynn as -

Grantee, conveying the subject property was recorded in

Salt Lake County, at 4:40 p.m. the same day. It states —

for information purposes that a promissory note in the

sum of $5,000 payable in $100 monthly installments ws

delivered by the grantee to the grantor Another nee.

ment was recorded purporting to be for informational

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c. 7

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purposes setting forth the said note.’ The second deed

was mitde hee ause Glynn “wasn't sure of the legality of

“the first document.” The deed and note dated December

8, 1959, were executed and delivered on. the morning of

December r 8, 1959, which was prior to the disinissal

: without prejudice of Case No. 119467.

A decree was made and entered in ( axe No. 123578

on January 20, 1980, as follows: “Plaintiff: be, and she

hereby is, awarded as her sole and separate property,

free and clear of any claims of the Defendant, the follow-

‘ing described property decated in Salt Lake County,

State of Utah, to-wit: Lot /24, East Millbfook ie 2,

aceording to the official —_ of Salt Lake County.’

o ’

ARGUMENT

I. Petitioner neither properly nor timely raised the

issue of violation of due process.

| Petitioner herein. raised or attempted a3 raise a

Federal question for the first time in his petition for

Rehez tring, in the Supreme Court ef Utah after his appeal

from the judgment of the Trial Court had been denied .

and. its decision affirmed. Fhe Utah Supreme Court

denied a petition-for rehearing summarily without: pass-

ing‘on the uestions raised therein.

oo

The course of theinstant matter.through the Courts.

is parallel to that of Sf. Louis and San Franciseo Rail-

road Companij crs. HB: Shephe rd, W368. Ct. 274: 240°

Us. 240: 60.1, Bd. Gad : nan

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The headnote thereto declares: **A Federal question

first set up and asserted ina petition for rehearing after

judgment in, the Trial Court had been affirmed by the

highest court of the state, will not support the jurisdiec-

tior of the. Federal Supreme Court on writ of error,

where the petition was not entertained, but was denied

_ without passing on the Federal question thus tardily —

Taised,”

| To the same effect is: Forbes vs. Virginia State-

_ Council 30'S. Ct. a 216 U:S. _ 54 L. Ed. 534.

Il. Petitioner’s constitutional rights as aot fo

the Fourteenth Amendment to the Constituti ny

United States were not violated by failure 4 Teake e him ~

a party to Dubin vs. Dubin divorce action or serve him

with process:

Had petitioners’ dati ‘heen precluded ‘te the de-

‘eree in the Dubin vs Dubin divorce, then there would not

have been and could not have been a hearing on the

issues, -with testimony taken, in Glynn vs. Marjorie

Doctorman Dubin. It would have been the right of de-.

‘fendant Dubin to have interposed the defense of res

adjudicata. The Dubin vs. Dubin divorce action left open

the matter of petitigners’ rights. Had he, in his partition

action, been able b® direct testimony or other credible

_eyidence to establish that he was an innocent purchaser

in good faith, having no notice of thie rights of Marjorie ~

-Doetérman Dubin in the subject property, and no notice: «

of the fact that the same.had been placed within the

_ jurisdiction of a court, he might have prevailed’ in his -

partition action. However, petitioner as plaintiff in the

- instant matter readily and candidly ‘admitted to know-

ledge of everything ‘whith defendant contended in the.

divorce complaint, but asserted his arbitrary and uni-

i

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lateral right to take one-half of the property out of the

- jurisdiction of the Court by the summary procedure of

conveyance to him. Thé Trial Court properly found that

he was not a bona. fide purchaser, having full and com-

plete knowledge of Mrs. Dubin’s alleged rights. and

; - rejected his contention of being able to deprive the Court

of its. power to act with respect to fhe property by taking

eonvevance under such circumstances,

; oe ee? e °° : ar ae

: The findings of the Trial Court were affirmed on

appeal by the Stijpreme Court pf the State of Utah. —

«

Oh

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III. There is no constitutional of -federal question --,

reviewable by this court. Petitioner attacks interpreta-

tion and application, but not er ‘of state

statutes.

bs constitutional guaranty: “under the XIV Amend-

ment is a matter of substance, not of form. However, it

‘dees not guarantee against judicial error, ‘and it does.

not provide any guaranty against unjust or erroneous

decisions. Nor does'such claimed error present a federal

question. See Wnited.States Bell Telephone Company of

nnsylvania vs. Penn: Public Utilities Commission, 60°

S. Ct. 411, 309 U.S. 30, 84 1. Ed. 563; Botlone vs. Lindsley .

170 F. 2d, 705, Cert. Den, 69S. Ct. 810, 336 U §. 944, 93

‘L. Fd. 1101, Pe ee

Petitioner does not’ contest the cons itutionality of

the Utah Fraudulent Convefance Statutes nor of our

‘Lis Pendéns Statutes. He contests, only the interpreta-

(

we J

tion given thereto and the application made thereof by :

the District Court of Salt Lake County, Utah, and the

Supreme Court of Utah.

sang

; For the reasons herein set forth the petition fr'a writ o

| certiorari should be denied.

Respectfully Submitted

/ ARTHUR 8. NIELSEN and

_DEAN CONDER

- Newhouse .Building

Salt Lake City, Utah -

- BERNARD L. ROSE.

53 East Fourth South

Salt Lake City, Utah

re