Bielan v. Bielan.

• Decision Date: 18 November 1948
• Citation: 62 A.2d 664,135 Conn. 163
• Court: Connecticut Supreme Court
• Parties: BIELAN v. BIELAN.

135 Conn. 163

62 A.2d 664

BIELAN v. BIELAN.

Supreme Court of Errors of Connecticut.

Nov. 18, 1948.

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

Action for a divorce, by Bozena Bielan against John Bielan brought to the Superior Court in Fairfield County and tried to the court, Murphy, J.; judgment for the plaintiff and appeal by her in so far as the judgment failed to award her permanent alimony and from the denial of her subsequent application for alimony pending the determination of the appeal and for counsel fees and disbursements thereon.

No error.

The appellant filed an application to rectify the appeal ¹ and a motion for reargument which were denied.

David R. Lessler, of Bridgeport, for appellant (plaintiff).

William Cohn, of Bridgeport, for appellee (defendant).

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

DICKENSON, Judge.

The plaintiff was granted a divorce and custody of the sole child of the marriage with $10 a week for the child's support. She was denied an award of alimony. She appealed from the judgment as it related to the denial of alimony. She made application for an allowance for counsel fees and disbursements to prosecute the appeal, and for temporary alimony. When this application was denied, she filed an amended appeal which included that denial. In passing, we point out that a ruling on such an application is within the scope of the appeal from the judgment, Conn.App.Proc. § 4, p. 7; and it is not necessary to amend the appeal but only to include the ruling in the assignments of error or, if they have been filed, to amend them to include it. First National Bank v. Ferguson, 129 Conn. 374, 376, 28 A.2d 87.

The established facts necessary for the determination of the issue presented by the appeal from the original judgment are as follows: The parties were married December 10, 1941. Their child was born July 8, 1942. The parties were of different religious faiths and had trouble over the christening of the child. Their relations were strained from this date. After refusal by the plaintiff to have sexual intercourse with the defendant he made no further attempt to accomplish it. In November, 1944, the plaintiff left the defendant, taking the child with her. Before that time the quarrels were minor ones. The defendant's attempts at reconciliation were fruitless. In February, 1945, the plaintiff caused the arrest of the defendant for nonsupport. He was ordered by the City Court of Bridgeport to pay $18 a week for the support of his wife and child. Thereafter the defendant called the plaintiff vile names and accused her of adultery without cause. The defendant was a shipping clerk and truck driver. His average weekly earnings were $42 to $44. The plaintiff's average weekly earnings were $26 a week. When working, she paid a woman $8 a week for care of the child. She worked in a mercantile establishment although she was a registered nurse. Nurses are in great demand and on private duty can earn $7 a day. The trial court found that, while the plaintiff had abandoned the defendant without legal justification, he had resorted to conduct thereafter that was ‘intolerably cruel in calling the plaintiff vile and indecent names and accusing her of lewdness.’ It concluded that the plaintiff was entitled to a decree of divorce but was not entitled to alimony.

General Statutes, § 5182, provides as follows: ‘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 * * *. In fixing the amount which shall be allowed, the court shall take into consideration the amount of the husband's income, whether the same is derived from property already acquired or from his personal daily exertions or from both * * *.’ The fact that the award is for periodic payments rather than out of the husband's estate does not change its character as alimony. German v. German, 122 Conn. 155, 161, 188 A. 429.

The plaintiff claims that the trial court, having found cause for and decreed a divorce, had, under the circumstances, no discretion to refuse to grant alimony. She contends that the refusal was based upon the fact that she had abandoned the defendant prior to the performance of the acts which were the ground for divorce and that this was error. While the trial court included the abandonment in its finding, it also found the facts as to the respective incomes of the parties. Its conclusion was that the plaintiff was not entitled to alimony. We cannot say that the trial court based this conclusion on the abandonment alone. ‘* * * conclusions * * * will be regarded as deductions from the facts found.’ Conn. App. Proc. § 82, p. 112. If there are facts stated in the finding which support the conclusion, the judgment should not be disturbed. See Thompson v. Coe, 96 Conn. 644, 652, 115 A. 219, 17 A.L.R. 1233. Whether or not the abandonment of the defendant by the plaintiff would in itselfjustify a denial of alimony we are not required to decide. It was a proper matter to take into consideration with the other facts in the case. The plaintiff had chosen to leave her husband without justifiable cause and for the time had forfeited her right to support. Martin v. Martin, 134 Conn. 354, 357, 57 A.2d 622. His attempts at reconciliation were unavailing. She had caused his arrest and he was required by the City Court of Bridgeport to pay her $18 a week for the support of herself and the child although the trial court has found she left him without legal justification. The payment of $10 a week for the support of the child reduced his net earnings to $32 or $34.

Alimony is not a debt in the sense that a decree granting it establishes it as an antecedent liability. Wright v. Wright, 93 Conn. 296, 300, 105 A. 684. Trial courts have a wide discretion as to judgments for alimony. Stapleberg v. Stapleberg, 77 Conn. 31, 38, 58 A. 233; LaBella v. LaBella, 134 Conn. 312, 318, 57 A.2d 627. In Felton v. Felton, 123 Conn. 564, 568, 196 A. 791, 793, we said: ‘It is the duty of the trial court to determine from the evidence in regard to these matters whether alimony shall be paid and, if so, the amount thereof * * *.’ That, indeed, was a case where the husband had conveyed properties to his wife, but we pointed out (123 Conn. 564, at page 567, 196 A. 791) that the provision for allowance from income in the statute ‘is permissive,’ not mandatory, and that the award rests within the sound discretion of the court and will not be interfered with unless it appears that it has been abused.

We held in Christiano v. Christiano, 131 Conn. 589, 596, 41 A.2d 779, that misconduct of a wife after her divorce is ordinarily no ground for depriving her of alimony already granted, for the obvious reason that such misconduct does not affect the matter litigated. Misconduct prior to judgment, affecting the marital relation, stands upon a different footing and has frequently been held in other jurisdictions to be a proper matter to consider in...