Beveridge v. Beveridge
| Decision Date | 15 April 1986 |
| Docket Number | No. 3459,3459 |
| Citation | 507 A.2d 502,7 Conn.App. 11 |
| Court | Connecticut Court of Appeals |
| Parties | June H. BEVERIDGE v. Leslie A. BEVERIDGE. |
William C. Galligan, Newington, for appellants (Russell D. Beveridge et al.).
John R. Logan, Hartford, for appellee (defendant).
Before DUPONT, C.J. and SPALLONE and BIELUCH, JJ.
The sureties on a bond on which the defendant was principal are appealing from a decision of the trial court opening and reversing its previous order discharging the sureties from their obligation and reinstating the bond.
On December 9, 1971, judgment was rendered dissolving the marriage of June H. and Leslie A. Beveridge. At that time, the court ordered Leslie Beveridge to pay $1 per year alimony and $40 per week for the support of each of three minor children. He never paid any alimony or support. In addition, he kept his whereabouts secret from the plaintiff.
Early in 1983, the plaintiff learned that her ex-husband was residing in Connecticut. By this time, the arrearage of alimony and support payments exceeded $34,000. On March 8, 1983, the plaintiff filed a motion for contempt of court against her ex-husband for his violation of the court orders. Accompanying the motion was an application for a writ of ne exeat. The plaintiff requested that the writ issue to prevent her ex-husband from leaving the state until the arrearage of alimony and support was paid. The application was granted by the court, Daly, J., ex parte and a writ of ne exeat issued, "conditioned that [Leslie A. Beveridge] shall not depart from this state without permission of the court pending the final decision of the motion [for contempt] referred to in the application...." The writ fixed a penal bond in the amount of $35,000 as surety, which Leslie Beveridge was unable to pay. Consequently, he was taken into custody and incarcerated.
On March 22, 1983, in response to Leslie Beveridge's motion for modification of the bond, the court allowed Russell D. and Ruth S. Beveridge to post a real estate bond in the penal amount, as a result of which Leslie Beveridge was released. The plaintiff and her ex-husband appeared on April 5, 1983, at the contempt hearing. At that time, they entered into a stipulation which provided that Leslie Beveridge make payment of the arrearage of $34,082 in accordance with an agreed schedule. It was also ordered by the court at that time that the surety bond would remain in effect until final payment had been made. The sureties, Russell and Ruth Beveridge, were not parties to the stipulation.
Leslie Beveridge failed to make all payments required by the stipulation, with the result that the plaintiff filed another motion for contempt. On August 30, 1983, these parties again stipulated to a further modification of the earlier order. The stipulation also stated that the plaintiff would not commence suit on the bond against the sureties as long as Leslie Beveridge failed to make payments under this obligation, resulting in the plaintiff's bringing of a separate action on the bond against the sureties, which she subsequently withdrew.
Russell and Ruth Beveridge, claiming that when they agreed to become sureties they understood that the bond by its express terms was to guarantee Leslie Beveridge's appearance in court at the April 5 contempt hearing, filed a motion on December 6, 1983, to be discharged as sureties on the bond. The court, Covello, J., on July 17, 1984, granted the motion releasing Russell and Ruth Beveridge as sureties, but reinstated "the order of March 8, 1983 and direct[ed] that [Leslie Beveridge] be committed to the custody of the Commissioner of Corrections until such time as there is a hearing on the motion for contempt." The next day, at the request of Leslie Beveridge's counsel, a reargument was allowed. Immediately following this hearing, the court granted the motion to open, denied the motion to dissolve the bond, reinstated the bond and ordered Leslie Beveridge released from custody. The sureties have appealed from the order reinstating the bond. They claim as error the court's failure to discharge them as sureties on the bond. We agree.
We first hold that the court order reinstating the bond constitutes an appealable final judgment because it terminates a separate and distinct proceeding. Our Supreme Court recently articulated the test for determining what constitutes a separate and distinct proceeding: "[t]he question to be asked is whether the main action could proceed independent of the ancillary proceeding." State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984). The writ of ne exeat has been held to be an extraordinary ancillary writ. Elkay Steel Co. v. Collins, 392 Pa. 441, 450, 141 A.2d 212 (1958). Applying that standard to the present case, the plaintiff's motion for contempt for nonpayment of support and alimony payments can certainly proceed independent of the ancillary ne exeat proceeding, which tests the legality of the reinstatement of the sureties on the bond on appeal.
In order to assist in understanding the implications of the issuance of a writ of ne exeat and of the obligations of sureties on a bond issued pursuant thereto, we look to the history of this ancient writ. Antedating this writ, in early common law, there existed a writ de securitatem invenienda which was utilized to prevent members of the clergy in England from departing the realm to visit the Papal See. National Automobile & Casualty Ins. Co. v. Queck, 1 Ariz.App. 595, 599, 405 P.2d 905 (1965). Thus, it was limited to restricting the movement only of ecclesiastics. Between the twelfth and fourteenth centuries, the writ evolved into a high prerogative writ, available to and utilized by the king to prevent subjects and foreigners, alike, from leaving the kingdom, which became known as a writ of ne exeat regno. It was predicated on the duty of the subject to defend the king and his realm and was primarily used for political purposes or to secure the safety of the state and the benefit of the realm. Id. How this royal prerogative writ came to private use is uncertain but between the sixteenth and seventeenth centuries the practice had developed of using a writ of ne exeat to enforce a private right. Id. Such use of the writ continues to the present day. The writ came to this country with the body of English common law that we adopted as our own. Some state courts base their authority to issue the writ on their inherent power to apply measures available at common law. Other states have provided for the writ by statute. In many states the writ has been abolished by statute. See 57 Am.Jur.2d, Ne Exeat § 1 et seq.; 65 C.J.S., Ne Exeat § 1 et seq.
In Connecticut, the writ of ne exeat is provided for by General Statutes § 52-489, which provides: "The superior court for any judicial district, and, when such court is not in session, any judge thereof, may grant and enforce writs of ne exeat, according to the course of the common law." By the very language of the statute, we must look to the common law for guidance as to its application and the nature of the obligations and rights of the parties.
The rule adopted generally in the United States is that the writ is no longer to be considered a prerogative writ, but as an ordinary or mesne process in equity, and no writ of ne exeat may be granted unless a suit in equity is commenced. National Automobile & Casualty Ins. Co. v. Queck, supra, 599-600, 405 P.2d 905....
To continue reading
Request your trial
-
Pease v. Charlotte Hungerford Hosp.
...contempt hearing generally has been treated as a separate and distinct proceeding for Curcio purposes. Compare Beveridge v. Beveridge , 7 Conn.App. 11, 14–15, 507 A.2d 502 (1986) (motion for contempt deemed appealable under first prong of Curcio because it can proceed independently), with N......
- State v. Householder
-
Atherton v. Gopin
...use of the writ of ne exeat had evolved to encompass enforcement of private rights. Id. at 910; see also Beveridge v. Beveridge, 507 A.2d 502, 504 (Conn. App. Ct. 1986).{10} As used today, "[t]he writ of ne exeat is an equitable remedy in the nature of bail at common law. It is directed to ......
-
Atherton v. Gopin
...century, use of the writ of ne exeat had evolved to encompass enforcement of private rights. Id. at 910; see also Beveridge v. Beveridge, 507 A.2d 502, 504 (Conn. App. Ct. 1986).Page 8{10} As used today, "[t]he writ of ne exeat is an equitable remedy in the nature of bail at common law. It ......