Baram v. Schwartz
| Decision Date | 21 January 1964 |
| Citation | 197 A.2d 334,151 Conn. 315 |
| Court | Connecticut Supreme Court |
| Parties | Harry BARAM v. Murray I. SCHWARTZ. Supreme Court of Errors of Connecticut |
Robert Y. Pelgrift, Hartford, for appellant (plaintiff).
Richard S. Levin, Hartford, with whom was Donald J. Cantor, Hartford, for appellee (defendant).
Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.
The plaintiff, father of a ten-year-old boy, brought this habeas corpus action requesting the Superior Court to make such order concerning his son's custody as would best serve the boy's welfare. After a full hearing, the court decided that the best interest of the boy would be served by awarding custody to the defendant, his maternal uncle, and rendered judgment accordingly. The plaintiff has appealed, claiming only that the court failed to give full faith and credit to a Rhode Island Family Court custody decree rendered after the present action was commenced and that no change of circumstances subsequent to that decree justified a modification of it in Connecticut.
The plaintiff married Arlene Schwartz in Hartford, Connecticut, on February 5, 1952. The couple moved to Rhode Island where David, their only child and the subject of this action, was born on February 17, 1953. When David was less than a year and a half old, his mother, on July 22, 1954, was granted a divorce from the plaintiff by the Rhode Island Superior Court on the ground of extreme cruelty, and custody of David was awarded to her. Shortly after the divorce, Arlene and David, with the court's permission, moved to Connecticut where they lived continuously until Arlene's death on April 11, 1962. The plaintiff continued to live in Rhode Island. Although the plaintiff had been granted visitation rights, he did not visit David for three or four years, and thereafter, visited him about once every three months. Immediately after Arlene's death the defendant took David into his home to live and on April 17, 1962, petitioned the Probate Court in Hartford for the plaintiff's removal as guardian of the person on the ground of unfitness. So far as appears, that proceeding is still pending. Although the Rhode Island court had, in connection with its divorce decree, ordered the plaintiff to pay a weekly sum for David's support, the plaintiff was in arrears on that order although he had financial resources with which to pay it, and Arlene had borne the expense of David's schooling, medical attention and summer camps.
On June 20, 1962, the plaintiff, still a resident of Rhode Island, brought this action. Two days later, on June 22, 1962, he obtained, ex parte, from the Rhode Island Family Court, a purported modification of the custody order made in connection with the 1954 divorce decree. The modification purported to award David's custody to the plaintiff. It is conceded in argument that the plaintiff sought and obtained this modification as the surviving parent, solely on a disclosure that his wife, Arlene, had died, and without a determination as to what David's welfare dictated. He then proceeded to a hearing in the present action.
The Superior Court correctly refused to recognize the Rhode Island modification order, but for a wrong reason. The plaintiff gains nothing, however, from the court's faulty reasoning so long as the decision is properly supported on other grounds. Waicunas v. Macari, 151 Conn. 134, 138, 193 A.2d 709. The court concluded that David's Connecticut domicil, derived through his mother survived her death so that, since David was not a resident of, nor domiciled in, Rhode Island at the time of the Family Court modification order, that court lacked jurisdiction. On this appeal, however, the parties correctly agree that David, on the death of his mother, took the plaintiff's domicil. See Pfeiffer v. Pfeiffer, 99 Conn. 154, 157, 121 A. 174; Dunham v. Dunham, 97 Conn. 440, 442, 117 A. 504; Kelsey v. Green, 69 Conn. 291, 297, 37 A. 679, 38 L.R.A. 471; Mowry v. Smith, 82 R.I. 82, 85, 105 A.2d 815; 17A Am.Jur., Domicil, § 70; 28 C.J.S. Domicile § 12b(3). Although the reason advanced by the Superior Court was incorrect, the Rhode Island Family Court modification order was nevertheless a nullity for lack of jurisdiction. It is the law of Rhode Island that, in a divorce proceeding, an order of custody ceases to operate on the death of the parent having custody and the court making the order loses its jurisdiction over the surviving parent and the child....
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