18 A.2d 353 | Conn. | 1941
The finding of the court discloses these facts: The parties in this case were husband and wife. On November 17, 1936, the plaintiff commenced an action against the defendant for divorce, alleging intolerable cruelty and adultery. In his answer, the defendant denied the allegations of the complaint and in a cross-complaint alleged that the plaintiff had been guilty of intolerable cruelty. On the day of the trial, the parties and their attorneys met and conferred with reference to a settlement of their property rights and the matter of a portion of the defendant's estate being assigned to the plaintiff in the event that it should be adjudged that the plaintiff be divorced from the defendant. The plaintiff demanded a stated sum of money in addition to other property. The defendant agreed to the amount of money and other property demanded by the plaintiff, but stated that it was impossible for him to pay the money in one payment and agreed to pay it over a period of six years in weekly *512 payments of $25 each. At this conference, the plaintiff agreed that the payment of the money should be made over such a period, and the parties executed a written agreement set forth in the footnote.1 On April 12, 1938, the court, having heard the parties, found the issues for the plaintiff and entered judgment of divorce, the judgment file embodying the provisions of the written agreement between the parties, although the agreement itself was not incorporated or referred to in it. Among other provisions of the judgment was *513 one requiring the defendant to pay to the plaintiff, by way of alimony, $25 per week for a period of six years. The defendant made the weekly payments up to November 10, 1938, since which time he has made no weekly payments and has also neglected to pay one-half of one year's tax on the real estate in accordance with the provisions of the "Stipulation" between the parties and the judgment file. On November 12, 1938, the plaintiff married John Scarpone and they are living together as husband and wife. Thereafter, on July 11, 1939, the defendant moved the court that the judgment of divorce be modified by revoking the order requiring the defendant to pay the plaintiff $25 per week, and that such order of revocation be dated as of the date of the plaintiff's remarriage. The defendant's motion to modify the judgment was denied by the court and he has appealed. While under the terms of the decree the defendant was in contempt when his motion was made, since the motion sought relief as of the date of the plaintiff's remarriage, was filed within a reasonable time thereafter, and involved a question upon which the law of this jurisdiction was uncertain, the court was warranted in entertaining it.
The trial court took the view that the document signed by the parties at the time of the divorce trial, although called a stipulation, was in fact a contract and that this agreement having been approved by the court and its provisions embodied in the judgment, it was binding on the parties and not subject to modification by the court without the consent of the parties. It is unnecessary for us to determine on this appeal whether the document signed by the parties was in fact a contract or, as its name seems to suggest, a mere stipulation intended by the parties as a suggestion to the court as to the provisions which should be inserted in the judgment file. In Maisch v. Maisch,
General Statutes, 5182, provides: "Any order for the payment of alimony from income may, at any time thereafter, be set aside or altered by such court." The great weight of authority seems to uphold the principle that where a court has general power to modify a decree for alimony or support, the exercise of that power is not affected by the fact that the decree is based on an agreement entered into by the parties to the action. Notes, 58 A. L. R. 639; 109 A. L. R. 1068. In Goldman v. Goldman,
In a divorce action judgment for alimony should not incorporate a prior agreement of the parties but if they make an agreement, the terms of which appear to the trial court to be fair and proper, those terms may be included in the decree without incorporating therein the agreement, as such, or referring to it. The form of the original judgment in this case was correct in that respect.
There is error, and the case is remanded to the Superior Court for further proceedings in accordance with law.
In this opinion the other judges concurred.