Bella v. La Bella.

• Decision Date: 29 January 1948
• Citation: 57 A.2d 627,134 Conn. 312
• Court: Connecticut Supreme Court
• Parties: LA BELLA v. LA BELLA.

134 Conn. 312

57 A.2d 627

LA BELLA v. LA BELLA.

Supreme Court of Errors of Connecticut.

Jan. 29, 1948.

Appeal from Superior Court, Middlesex County; Murphy, Judge.

Action for divorce by Louis O. LaBella against Evelyn S. LaBella brought to Superior Court where defendant filed a cross-complaint and the issues were tried to the court. From judgment granting defendant a divorce and awarding her alimony but refusing to take jurisdiction over the custody of a child, defendant appeals. No error.

The appellant filed a motion for reargument which was denied.

MALTBIE, C. J., and BROWN, J., dissenting.

Wallace W. Brown, of Hartford, for appellant.

James M. Kelly, of Middletown, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

JENNINGS, Judge.

The defendant was awarded a decree of divorce on a cross-complaint alleging adultery. She has appealed fom the judgment on the principal grounds that the court erred in refusing to take jurisdiction over the custody of a child and in its award of alimony.

The plaintiff is a successful surgeon in Middletown and at the time of trial was 49 years of age. The defendant was 43. They married in 1928 and lived together in apparent harmony until March, 1943. There are no children of the marriage and they had discussed the desirability of adopting a child. In August, 1942, the plaintiff was attending a professional meeting in Minneapolis. He wrote the defendant that he had found a beautiful baby boy they could adopt. She asked him to bring the baby home and suggested that he bring a girl too. He brought the baby home. His name was Michael. The plaintiff did not give the defendant any information about the child's parentage at this time.

In March, 1943, the plaintiff went to Chicago to study. He telephoned the defendant and told her to look in the top drawer of his desk, as there was a paper there she would be interested in seeing. The paper was a copy of Michael's birth certificate. It indicated that the plaintiff was his father and a former Middletown nurse his mother and that the plaintiff had committed adultery in 1941. The parties continued to occupy the same house until August, 1945, but did not live as man and wife after March, 1943. At that time the plaintiff left to obtain a Reno divorce but did not prosecute the action as the parties could not agree on terms. In October of the same year he brought this suit, alleging intolerable cruelty.

It will be necessary to go into some detail with regard to the parties' respective financial conditions because of the claim that the award of alimony in a lump sum was erroneous. The net income of the plaintiff after income taxes rose from about $13,600 in 1940 to $20,000 in 1945. His gross income for the first nine months of 1946 was $39,000. In 1943, after the disclosure of Michael's paternity, the plaintiff's total personal property, amounting to $34,000, was divided equally between the parties.

At the time of trial the defendant's assets included the furnished house, given to the defendant by the plaintiff and assessed at $12,910 but worth more; a $10,000 annuity policy payable to her at the rate of $50 per month starting at age 55; four endowment policies maturing in 1955 for $2,000 each; four was bonds maturing in 1955 for $1,000 each; an automobile and $500 in cash. She is also the irrevocable beneficiary of an $18,000 life insurance policy of the plaintiff. She has no separate income.

The plaintiff had his practice and professional equipment and war bonds worth $40,000 at the time of trial, standing in his and Michael's names. He maintained three insurance policies, of which Michael is the beneficiary, aggregating $25,000, and a savings bank account for Michael of $1,000, of which he is trustee. He is the sole support of his father, aged 78.

Both parties are attached to Michael. He has lived with the defendant and she has been a fond and attentive mother to him, devoting herself to his well being, training and rearing.

The evidence supports these findings. The 43 paragraphs of the draft finding, with one exception, add nothing material thereto and are not in substantial conflict therewith. They are rather an elaboration thereof. The exception referred to is the fact that shortly after the principal trial the plaintiff and the mother of the child started proceedings for the adoption of Michael by the plaintiff in the Probate Court of which his then counsel was judge.

The trial court held that it had no jurisdiction of the defendant's prayer for the custody and support of the child. Divorce, in this state, is the special creature of statute. Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504. The applicablestatutes, General Statutes, §§ 5184, 5186, 5187, refer to children of the marriage in terms or by implication. They can be read in their context in no other sense. Michael is not a child of this marriage.

‘The superior court of this state, as a court of law, is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it, and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the superior court jurisdiction over that matter.’ State ex rel. Morris v. Bulkeley, 61 Conn. 287, 374, 23 A. 186, 192, 14 L.R.A. 657. That the English courts of equity had plenary jurisdiction over the persons of children there can be no question, and, in the absence of state, as successor to all the equitable any statute, the Superior Court of this powers vested in the high courts of England, would have a like jurisdiction. The reason why the Superior Court cannot, except in the cases where it has exercised the power from time immemorial (habeas corpus; Dunham v. Dunham, supra) or by specific grant (divorce, or separation under § 5185; ibid.), determine the custody of children is that jurisdiction over that matter has in general been by statute vested in the Probate Court. In the case of an illegitimate child, the mother is the guardian of the person, but the Probate Court is given specific power to remove her and appoint some one else. General Statutes, § 4794; Lewis v. Klingberg, 100 Conn. 201, 205, 123 A. 4. The guardian of the person of a child is entitled to his custody. 39 C.J.S., Guardian and Ward, § 56, page 86. The Superior Court has no jurisdiction over matters which are specifically placed within the jurisdiction of the Probate Court. First National Bank & Trust Co. v. McCoy, 124 Conn. 111, 115, 198 A. 183. It follows that the trial court was right in refusing to take jurisdiction of the prayer for custody of Michael and in refusing to interfere with the petition for adoption apparently filed in accordance with the provisions of chapter 251 of the 1943 Supplement to the General Statutes. This conclusion is not to be taken as tacit approval of the action of former counsel for the plaintiff in filing the petition in the Probate Court of which he is judge without notice to the defendant. The matter is not before this court.

The judgment awarded the defendant lump sum alimony of $18,000 and further ordered the plaintiff to deliver the $18,000 life insurance policy to her and to pay her the amount of the premiums. The defendant claims that on the facts she is entitled to periodic payments in substantial amount as a matter of law, and possibly to a principal payment. It is true that the primary basis for an award of alimony is to provide that support for the wife which the husband, by entering into the marriage, agreed to furnish. Cary v. Cary, 112 Conn. 256, 260, 152 A. 302; Christiano v. Christiano, 131 Conn. 589, 593, 41 A.2d 779. This fact probably underlies the preference generally expressed for periodic rather than lump sum payments. Schouler, Divorce Manual, § 260. General Statutes, Rev. 1902, § 4556, limited an award of alimony to one-third of the husband's estate, but it was amended, and General Statutes, Rev. 1930, § 5182, is very broad. It provides: ‘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. * * * whenever an order shall be made for the payment, at stated periods, of alimony from the income of the husband, the court may, at the time of issuing such order, fix a definite amount which may, at any time, be paid by the husband in lieu of all periodical payments which would otherwise accrue after the payment of such amount.’ It has been uniformly interpreted as giving the court a wide discretion. Felton v. Felton, 123 Conn. 564, 567, 196 A. 791, and cases cited; see Keezer,...