152 A. 302 | Conn. | 1930
The trial court concluded that the remarriage of Mrs. Cary did not, upon the facts as found, constitute ground for vacating or modifying the judgment of the Superior Court awarding her alimony. The appeal is predicated upon the claimed error in this conclusion as well as upon the overruling of the petitioner's claim that the proof of the remarriage of Mrs. Cary was prima facie cause for the court to revoke the award of alimony to her. *258
Alimony is the creature of statute. General Statutes, § 5182, in force at the time this petition was brought and judgment rendered thereon, provided: "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," etc. In a strongly argued memorandum of decision the court denied the petition to vacate or modify the judgment for alimony upon the ground that under our statute alimony is not awarded the wife as support of which she is deprived by the acts of a husband, but is assigned as a part of the estate of her husband and in addition thereto, or in lieu thereof, the court may order alimony to be paid from her husband's estate. The judgment which the petitioner seeks to modify was the award as alimony of a specific sum to be paid from the husband's income, specified to be a reasonable portion of the petitioner's estate.
In Scott v. Scott,
We quote a part of a sentence in Wright v. Wright,
The trial court also relied upon the terms of the statute that in lieu of the assignment of a part of the estate of the husband the court may order alimony to be paid from his income. Since the assignment of a part of the estate of the husband as alimony became the absolute property of the wife the court held that the payment from the income of a specific amount per month in lieu of the part of the estate in like manner became the absolute property of the wife. "Why," the court says, "should she not have in toto that which was awarded to her `in lieu thereof'?" If the alimony decreed was in lieu of dower, or in settlement of property rights acquired by her the authorities hold that the alimony is not affected by the wife's remarriage. Annotations in 30 A. L. R. 89, and 64 A. L. R. 1277.
But alimony of a sum to be paid periodically in lieu *260 of the assignment of a part of the estate of the husband does not fall within this rule and the reasons which support the rule do not apply. Alimony of a specific part of the estate, or of a specific sum of money, when transferred to the wife passes out of the control of the court making the award. It would have no power of control over the estate or funds so transferred which would enable it to order their retransfer in the absence of statutory authority. It would have no power to control the payment which had been made to the wife from the income. Whether the court, in the reasonable exercise of its equitable powers, would have authority to vacate or modify the alimony awarded the wife because the decree is a continuing one we need not determine. Our statute, General Statutes, § 5182, specifically authorizes the court rendering the judgment to at any time thereafter set aside or alter "any order for the payment of alimony from income." The power of the trial court to vacate or modify the judgment of alimony from the income of the petitioner in a proper case is fully authorized by this statute.
Alimony is awarded the wife divorced for the fault of her husband that he may continue to fulfil the obligation for her support which the law imposed upon him in virtue of the marriage contract. By her remarriage she obtains from the second husband a like legal obligation to support her. Nelson on Divorce
Separation, § 933, points out that there are two theories, the first holding that where the alimony becomes her absolute property she may continue to hold this after her second marriage. But where the alimony is from the income of the husband at stated periods it is regarded "as a continuance of the obligation to support" and the remarriage will furnish the basis for vacating the award, or, as some authorities hold, for *261
vacating or modifying it. Reason requires us to hold that the remarriage of the wife should relieve the husband from the obligation of supporting the wife of another man. To permit her to have alimony from the first husband as an equivalent for her support after she had secured the legal obligation from the second husband to support her would give her support from her present and her former husband, and for each subsequent divorce for the husband's fault she might again be awarded alimony for her support. The legislative intent never could have contemplated such a situation. It would offend public policy and good morals. It is so illogical and unreasonable that a court of equity should not tolerate it. Well has it been characterized as legally and socially unseemly. Two husbands should not be liable for the obligation of support for a woman who is the divorced spouse of one and the wife of the other. Emerson v. Emerson,
The majority of the cases support the rule that the alimony may continue provided the support furnished the wife by her second husband is inadequate. These cases will be found in the Annotations in 30 A. L. R. 89 and 64 A. L. R. 1277. This rule imposes upon the court the difficult decision of ascertaining the actual financial standing of the second husband and balancing this in connection with the wife's income and the first husband's financial standing — a decision which it should not be required to make.
The better rule which we adopt, save in the most exceptional circumstances, draws from the voluntary action of the wife in remarrying the inference that she has elected to obtain her support from her second husband and has thereby abandoned the provision *262
made for her support by the court in its award of alimony. In Stillman v. Stillman,
There is error, the judgment is reversed and the cause remanded to the Superior Court with direction to enter its judgment in favor of the petitioner.
In this opinion the other judges concurred.