11 Conn. Supp. 391 | Conn. Super. Ct. | 1942
The remonstrance is addressed, not only to the content of the referee's report, but also to the recommendations and expressions of opinions in it as these are explained in a "Memorandum Supplementing Report of State Referee" submitted following the filing of the report. Such recommendations and opinions form no part of the report and hence, are not proper subjects of remonstrance. Hegel vs. Hegel, *394
In the part of the remonstrance which may be considered, the contention advanced is that the facts recited in paragraphs 6, 7, 8 and 11 of the original report, as well as those stated in the memorandum supplementing it, are found without evidence. In such supplemental statement, only one material fact, additional to those appearing in the original report, is exposed, viz., "that the relative financial resources and abilities of the parties .... prevailed substantially during all the period covered by the arrearages", in payments for the support of the children which plaintiff was required to make. This is, itself, an ultimate fact drawn from the subordinate facts recited in the paragraphs in the original report at which the remonstrance is leveled. The validity of its content is hence dependent upon whether the attack upon such subordinate facts is successful. The entire transcript has been examined and the conclusion is that the facts recited in the named paragraphs (i.e. 6, 7, 8 and 11 of the original report) are amply supported in the evidence. In consequence, the remonstrance is overruled in all of its aspects; the report is accepted and judgment must enter as the court may determine from the facts found.
On June 30, 1939, the defendant was granted a decree of divorce upon a cross complaint filed by her. There were then living — and still are — three minor children, issue of the marriage, the care, custody and education of whom was committed to the defendant. In addition to a lump sum of $750 awarded to defendant as alimony, the plaintiff was ordered to pay her "$50. monthly for the support of each child" while in her custody. Unquestioned findings in the referee's report show that ever since the decree of divorce was entered, one of the daughters has remained with the plaintiff and that the other two children stayed with him, also, until June 20, 1940, since which latter date, and at the time of the hearing before the referee, they have been with the defendant. In consequence, the plaintiff has been under the obligation of paying to the defendant in accordance with such order the sum of $50 per month for the support of each of such children since the day mentioned. This, however, he has wholly failed to do.
In the original motion filed by him on September 11, 1940, *395 plaintiff, in substance, alleges that prior to the filing of the decree of divorce, the parties had entered into a stipulation governing the subjects of custody of the children, and allowance for their support and maintenance, according to which the custody of the children was to be divided between the parents. However, it is stated that through error the court was not fully informed of the alleged agreement and as a result, the judgment in awarding sole custody to the defendant was "contrary to the intentions of the parties as expressed in said stipulation." The court is urged to "re-open said decree of divorce, and after hearing the parties, modify said decree in such manner that it shall accord with the agreements and stipulations of the parties...." However, in so far as the alleged nonconformance of the decree with the asserted stipulation relates to the matter of custody of the children it is no longer of any consequence in view of the fact that, as hereinafter appears, the court adopts the referee's recommendation that the custody be henceforth divided — a solution in which the parties evidently concur. A question seems to have arisen, whether under this motion, the relief sought included that of modifying the judgment to conform to the stipulation of the parties as respects the sums to be paid by the plaintiff toward the support of the children while they might be in defendant's custody. In this situation, the plaintiff, on June 25, 1941, filed an amendment to his then pending original motion.
In this, the plaintiff asks specifically "that the order for support payments be modified, retroactively." Irrespective of whether there is any substantial difference between the provisions of the stipulation and the order in the decree of divorce as respects the plaintiff's duty to support the children while they might be in defendant's custody, it is evident that plaintiff's major purpose is to be relieved from the obligation, not only of contributing to the support and maintenance of his children in the future, while they may be with the defendant, but also to be absolved from paying the arrearages which have accrued under the order contained in the decree of divorce. This, he would accomplish under the original motion by inducing the court to correct the judgment to conform to the stipulation of the parties, which involves the premise that the judgment does not speak the truth and implies that if it be made to do so he would owe nothing under the order for support and maintenance of the children contained in it. quite to the contrary under the amendment, however, he *396
assumes the validity of the order as stated in the decree, but asks that he be freed from paying the arrearages which have accumulated by reason of his default because, as he alleges: "Since the entry of the decree .... the plaintiff's income has been materially reduced." Both species of relief, he apparently conceives to be within the conception of section 5184 of the General Statutes, Revision of 1930, which provides that: "On any complaint for a divorce, the court may, at any time, make any proper order as to the custody, care and education of the children and may, at any time thereafter, annul or vary such order." Whatever the applicability of this section to the relief asked in the amendment referred to, that sought in the original motion is not within its purview. For the cause there stated is one for the modification of a judgment on the ground of mistake or accident, which can be effectuated only by an independent action in equity. Crane vs. Loomis,
Moreover, in assuming that it was the prerogative of the parties, in event of a decree of divorce being granted to one of them, to formulate by stipulation the provisions of the judgment with respect to the custody of their children, the relief asked for depends upon an erroneous premise. The determination of such questions is for the court, which cannot abdicate its duty to the compact of the parents. Lilley vs.Lilley,
This conclusion also disposes of plaintiff's contention that in view of the facts stated, he is entitled to have a nunc protunc order entered to cause the order for support and maintenance in the decree of divorce to conform to the stipulation. "The function of a nunc pro tunc order in general is to put upon the record and to render efficacious some finding, direction or adjudication of the court made actually or inferentially
at an earlier time, which by accident, mistake or oversight was not made matter of record, or to validate some proceedingactually taken but by oversight or mistake not authorized, or to prevent a failure of justice resulting, directly or indirectly from delay in court proceedings subsequently to a time when a judgment, order or decree ought to and would have been entered, save that the cause was pending under advisement." (Italics added.) Perkins vs. Perkins,
Concerning the demand for a modification of the order in question in so for as it relates to payments for the support *398
and maintenance of the children as contained in the amendment to the original motion, it can hardly be conceded that section 5184 of the General Statutes, Revision of 1930 (quotedsupra) alone, confers on the court a continuing control over payments ordered by it to be made by either parent. That statute relates only to the matter of custody of minor children. However, read together with sections 5186 and 5187, it would seem that such a power is implicit in the composite provisions of these statutes and in analogy to that provision contained in section 5182 relative to alimony payable from income or earnings which reads as follows: "Any order for the payment of alimony from income may, at any time thereafter, be set aside or altered by such court." The power to amend any of its orders providing for the support, maintenance and education of children is complementary to that of awarding custody of them in such manner as seems best adapted to protecting them. The theme of the opinion in Lyon vs. Lyon,
The claim advanced in the amendment to the motion (i.e. that due to changes in the plaintiff's financial status, the order for the support of the children while in defendant's custody, be modified to operate retroactively and thus to excuse plaintiff from the obligation to pay accrued arrearages) must, also, *399
be denied. The authorities are divided on the question whether courts have power even under statutes of like purport as section 5182, supra, to make such an order nullifying or modifying one previously entered for the payment of alimony from income or earnings operative retrospectively where installments have become due and remain unpaid. It is affirmed in the courts of a minority of the states of which the following cases are fairly representative: Kirkbride vs. VanNote,
But a decisive majority holds otherwise, upon the theory that such payments become vested as they become due. The view expressed in these is summarized as follows: "Statutes authorizing the alteration and modification of judgments or decrees allowing alimony have no retrospective effect, but the statutory power to modify extends only to future installments and not to alimony already accrued, unless there is clear language manifesting a contrary intent." 27 C.J.S. Divorce
§ 276, p. 1089. To the same effect, see 17 Am. Jur. Divorceand Separation § 648, p. 494; Anno. 94 A.L.R. 331. Among the more recent cases which hold to this view are: Biewendvs. Biewend,
In his original motion the plaintiff also asks that a revision of the order in question be made, "in such manner as shall accord with the best interests and welfare of said minor children." This must be read in connection with the allegations contained in the amendment later filed in which it is asserted that "plaintiff's income has been materially reduced" since the decree containing the order for the support and maintenance of the minor children was entered. "Although there is some authority to the contrary, [in] a proceeding to modify an alimony decree .... in the absence of fraud or mistake, or want of jurisdiction, the decree cannot be altered unless it is shown that the conditions and circumstances of the parties have changed substantially since the decree was rendered." 27 C.J.S. Divorce, § 239, p. 989. Substantially the same rule applies to an order for the support, maintenance and education of children, but to the other considerations mentioned, are to be added the death of any of them or a material change in their needs, or as their welfare may be otherwise affected.Lilley vs. Lilley,
Under the circumstances detailed, no substantial reason can be discovered which would justify amending the order for the support and maintenance of the children, as contained in the decree of divorce, especially in view of the condition that such provision is one that incorporates a precise obligation which plaintiff voluntarily undertook in a written stipulation executed by him with defendant on the eve of the hearing in the action of divorce in which defendant prevailed and but 43 days before he contracted his present marriage. The effect of reducing the payments for support specified therein, under the conditions exposed in the referee's report, would not only not constitute a modification sanctioned by the statute (Gen. Stat. [1930] § 5182) but would, in effect and in result, amount to a new and different decision on substantially the same state *402
of material facts as obtained at the time the decree was granted containing an order which had not only the effect of a final judgment on the facts as they then were (and still are) but, also, the approval of the plaintiff. That sort of procedure is not to be countenanced. Hein vs. Hein,
On June 28, 1941, the defendant filed a "Motion for Judgment for Contempt of Court" because of plaintiff's default in making the payments for the support of the children during the period while two of them have been in defendant's custody, viz., since June 20, 1941. It does not seem that any order to appear and show cause why he should not be adjudged in contempt was ever issued. Neither is there anything in the report to indicate that the plaintiff waived these prerequisites to the infliction of any restraint or penalty to enforce compliance with the court's order. What is clear is that plaintiff hoped to avoid performing the duty imposed upon him in the decree by being relieved of such duty and has offered nothing cognizable by the court as a valid excuse for his disobedience of the order if it survived his attack upon it. On the facts found, in the light of the conclusions reached here, he is in contempt of court. No order of commitment can be entered, however, unless and until a new motion is filed showing in terms of dollars the amount he shall be in arrears up to the time of the filing of such motion, accompanied with an order to show cause and citation, followed by a hearing before the court at which he shall have opportunity to present any reasons which he may believe he has to influence the court not to commit him until he has purged himself.
The conclusions are: (1) That the decree in so far as it relates to the custody of the children be so amended that the plaintiff shall have the care and custody of Edward and Ann from one week after the close of school to one week before the opening of school in each year and that the defendant shall have such care and custody during the remaining time, the other parent in each instance to have reasonable right of visitation; (2) The motion for modification of the order contained *403 in the decree of divorce in so far as it seeks the elimination or amendment of the provisions requiring the plaintiff to make the payments specified therein for or toward the support and maintenance of each child while such child may be in the custody of the defendant, is denied; (3) The plaintiff is in contempt of court for failure to comply with the order contained in the decree of divorce requiring him to make the payments specified, for or toward the support of each child while in defendant's custody, from June 20, 1941, to the date of the last hearing before the referee, viz., November 13, 1941.
Judgment accordingly.