Pittsburgh Tribune Review for February 4, 1998

By Robert Baird
TRIBUNE-REVIEW

From the smoke and ashes of a fire, Ann D. Todd has finally found justice in an Allegheny County child support case after a 39-year delay. Common Pleas Judge Donald E. Machen last week ordered that Todd's ex-husband, Frank A. Todd Jr., of Nevada, Mo., must pay $22,896 in back support payments and interest, plus attorney fees of $2,419.

Carrying a scrap of paper with a few cryptic notes, Ann Todd, of McKeesport, had contacted Dravosburg attorney William J. Helzlsouer seeking help in collecting support payments ordered by an Allegheny County judge in 1958. The note contained the date, Dec. 9, 1958, and the case caption, Ann Todd vs. Frank A. Todd Jr., along with the case number, 2058 of 1958.

But a search in the county Prothonotary's Office revealed that the records of the case had been destroyed in a basement fire in the City-County Building on May 10, 1985. Todd, 64, of Romine Avenue, told Helzlsouer that she recalled a support hearing at which the late Judge Lois McBride ordered her former husband to pay $12.50 per week to support their 4-year-old son, Frank A. Todd III. But she never received a cent. Her son reached 18 on May 23, 1972, when the support order would have expired.

On Feb. 28, 1997, Common Pleas Judge Joseph A. Jaffe ordered a search of the records in the office of Prothonotary Michael F. Coyne, but it turned up nothing. Then Machen, who was assigned the case, ordered another search that again came up empty, except for a docket entry made the day of the Dec. 9, 1958, hearing, which said both parties appeared and the case was continued indefinitely.

When Machen set a hearing, the father, who never appeared in court, sent an affidavit that stated he was ill and couldn't attend. Testifying by phone, the father alleged the case was thrown out by McBride several weeks after the December 1958 hearing when his wife didn't appear in court on a visitation matter.

But Helzlsouer said a search of the Pittsburgh Legal Journal revealed no other hearings in the case. Relying on the testimony of the ex-wife, Machen decided any other hearing would have been invalid because it was ex parte, or without both sides being present. He ruled the order from the first hearing required Todd to pay the support.

Machen's ruling referred to a Cambria County case in which a woman sought child support issued in an order nearly 50 years earlier. In 1996, the state Superior Court found that a six-year statute of limitations didn't apply in the case, and the mother could pursue the claim. In the Todd case, Helzlsouer said Machen "believed the testimony of the wife. There was no written documentation of the (1958) proceedings."

Helzlsouer said the father left town six months after McBride's order in 1958, and his whereabouts were unknown until 1972, when he appeared at his son's workplace and said, "I'm your father."

Ann Todd, who has been divorced 40 years, had little to say about her victory. "It was nice," she said. "I'm not surprised. I felt positive it would go through. The world of justice grinds slowly."

Machen's order set the back payments at $9,050, plus interest of $13,846 at 6 percent. "I don't know if we'll ever collect it," Helzlsouer said. "It certainly sends a message."

Attempts to reach the ex-husband in Missouri were unsuccessful. Attorney Karen Myers represented him at the time of the phone conference and her associate, David Spurgeon, came in the day of trial. Myers had no comment, yielding to Spurgeon, who was unavailable.

Todd's new attorney, Robert J. Fall, promised an appeal. One issue, he said, would be that the ex-wife failed to exercise due diligence in the case and the defendant was prejudiced by the delay.

Another would be that "there simply was no written order of court. As far as the court docket shows, the hearing was postponed or continued generally." "My client never knew there was an order of court," Fall said. "In fact, the docket shows there was no order. To me, I don't know of another case like it."

Fall also said they will appeal the awarding of counsel fees to Helzlsouer because the ex-husband had presented a legitimate defense, and there is no justification for making him pay the other side's counsel fee.