Casanova v. Casanova

Apr 30, 1974
Reporters:
, ,
Before:
House
Per Curiam.

The plaintiff instituted a divorce action against the defendant who moved for an order for temporary alimony and support for the minor children of whom she had custody. At ‍‌‌​‌​​‌‌​​​‌‌‌‌​‌‌​​‌​​​‌‌‌‌​​​‌‌‌‌‌‌​‌‌​‌​​‌‌​‌​​​​‌​​​‌‌​​‌​‌​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌‌​‌‌‌‌‌‌‌‌​​‍the hearing on the defendant’s motion, the plaintiff, in accordance with the provisions of § 380 of the Practice Book, submitted a financial affidavit which purported to set forth his assets, liabilities, income and expenses. The affidavit contained false information. It indicated that the plaintiff’s annual income was approximately $13,000. In subsequent deposition proceedings, it was determined that in ‍‌‌​‌​​‌‌​​​‌‌‌‌​‌‌​​‌​​​‌‌‌‌​​​‌‌‌‌‌‌​‌‌​‌​​‌‌​‌​​​​‌​​​‌‌​​‌​‌​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌‌​‌‌‌‌‌‌‌‌​​‍fact his income for the period reported was, in fact, in excess of $24,000, and that he had not disclosed as an asset a $5000 interest in a limited partnership.

What a husband can afford to pay for support and alimony pendente lite is a material considera tion in the court’s determination as to what is a proper order. England v. England, 138 ‍‌‌​‌​​‌‌​​​‌‌‌‌​‌‌​​‌​​​‌‌‌‌​​​‌‌‌‌‌‌​‌‌​‌​​‌‌​‌​​​​‌​​​‌‌​​‌​‌​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌‌​‌‌‌‌‌‌‌‌​​‍Conn. 410, 415, 85 A.2d 483. A court is entitled to rely upon the truth and accuracy of sworn statements required by § 380 of the Practice Book, and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding.

While the present appeal ‍‌‌​‌​​‌‌​​​‌‌‌‌​‌‌​​‌​​​‌‌‌‌​​​‌‌‌‌‌‌​‌‌​‌​​‌‌​‌​​​​‌​​​‌‌​​‌​‌​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌‌​‌‌‌‌‌‌‌‌​​‍arises from a ruling on a motion to modify the original order which was predicated upon the false information contained in the plaintiff’s affidavit, justice to the defendant requires that she have a new and full hearing on her original motion for alimony and support, untainted by the plaintiff’s misrepresentation.

There is error, the ruling on the defendant’s motion ‍‌‌​‌​​‌‌​​​‌‌‌‌​‌‌​​‌​​​‌‌‌‌​​​‌‌‌‌‌‌​‌‌​‌​​‌‌​‌​​​​‌​​​‌‌​​‌​‌​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌‌​‌‌‌‌‌‌‌‌​​‍to modify the order of temporary alimony and support is set aside, and the case is remanded for a new and full hearing on the merits of the motion.