62 A.2d 664 | Conn. | 1948
The plaintiff was granted a divorce and custody of the sole child of the marriage with $10 a week for the child's support. She was denied an award of alimony. She appealed from the judgment as it related to the denial of alimony. She made application for an allowance for counsel fees and disbursements to prosecute the appeal, and for temporary alimony. When this application was denied, she filed an amended appeal which included that denial. In passing, we point out that a ruling on such an application is within the scope of the appeal from the judgment; Conn. App. Proc. 4, p. 7; and it is not necessary to amend the appeal but only to include the ruling in the assignments of error or, if they have been filed, to amend them to include it. First National Bank v. Ferguson,
The established facts necessary for the determination *166 of the issue presented by the appeal from the original judgment are as follows: The parties were married December 10, 1941. Their child was born July 8, 1942. The parties were of different religious faiths and had trouble over the christening of the child. Their relations were strained from this date. After refusal by the plaintiff to have sexual intercourse with the defendant he made no further attempt to accomplish it. In November, 1944, the plaintiff left the defendant, taking the child with her. Before that time the quarrels were minor ones. The defendant's attempts at reconciliation were fruitless. In February, 1945, the plaintiff caused the arrest of the defendant for nonsupport. He was ordered by the City Court of Bridgeport to pay $18 a week for the support of his wife and child. Thereafter the defendant called the plaintiff vile names and accused her of adultery without cause. The defendant was a shipping clerk and truck driver. His average weekly earnings were $42 to $44. The plaintiff's average weekly earnings were $26 a week. When working, she paid a woman $8 a week for care of the child. She worked in a mercantile establishment although she was a registered nurse. Nurses are in great demand and on private duty can earn $7 a day. The trial court found that, while the plaintiff had abandoned the defendant without legal justification, he had resorted to conduct thereafter that was "intolerably cruel in calling the plaintiff vile and indecent names and accusing her of lewdness." It concluded that the plaintiff was entitled to a decree of divorce but was not entitled to alimony.
General Statutes, 5182, provides as follows: "The superior court may assign to any woman divorced by such court a part of the estate of her husband and, in addition thereto or in lieu thereof, may order alimony to be paid from the husband's income. . . . In fixing *167
the amount which shall be allowed, the court shall take into consideration the amount of the husband's income, whether the same is derived from property already acquired or from his personal daily exertions or from both. . . ." The fact that the award is for periodic payments rather than out of the husband's estate does not change its character as alimony. German v. German,
The plaintiff claims that the trial court, having found cause for and decreed a divorce, had, under the circumstances, no discretion to refuse to grant alimony. She contends that the refusal was based upon the fact that she had abandoned the defendant prior to the performance of the acts which were the ground for divorce and that this was error. While the trial court included the abandonment in its finding, it also found the facts as to the respective incomes of the parties. Its conclusion was that the plaintiff was not entitled to alimony. We cannot say that the trial court based this conclusion on the abandonment alone. ". . . conclusions . . . will be regarded as deductions from the facts found." Conn. App. Proc. 82, p. 112. If there are facts stated in the finding which support the conclusion, the judgment should not be disturbed. See Thompson v. Coe,
Alimony is not a debt in the sense that a decree granting it establishes it as an antecedent liability. Wright v. Wright,
We held in Christiano v. Christiano,
In the denial of the application for temporary alimony and for an allowance for counsel fees and disbursements pending appeal, the trial court found as additional facts that the defendant was in debt and that his earnings were just about sufficient to cover his living expenses. It might well have concluded that his primary duty was to support the child and that to require the payment of any further amount would imperil his ability to do this. Its judgment in denying temporary alimony finds sufficient support in these facts alone. As to the denial of an allowance for counsel fees and disbursements arising out of the appeal, "The basis of the allowance [to defend] is that she [the wife] should not be deprived of her rights because she lacks funds which may be supplied from property in which as a wife she has a real interest but which 15 usually within the control of the husband." Steinmann v. Steinmann,
There is no error.
In this opinion the other judges concurred.