Burke v. Burke

Decision Date03 July 1950
Citation137 Conn. 74,75 A.2d 42
PartiesBURKE et al. v. BURKE. Supreme Court of Errors of Connecticut
CourtConnecticut Supreme Court

Charles G. Albom, New Haven, with whom, on the brief, was Nelson Harris, New Haven, for the appellant (defendant).

I. Gordon Colby, Jr., New Haven, for the appellees (plaintiffs).

Before BROWN, C. J., JENNINGS, BALDWIN, O'SULLIVAN, JJ., and MURPHY, Superior Court Judge.

BROWN, Chief Justice.

The plaintiffs are Nettie R. Burke, individually, and Barbara and Eileen Burke, the minor children of herself and the defendant, suing by her as natural guardian and next friend. The action is for reimbursement of expenditures made by Mrs. Burke for the support of herself and the children, and for future support. The court rendered judgment that Mrs. Burke recover $7112.25 damages of the defendant and that he pay her from August 1, 1949, until further order of the court $250 per month for the support of herself and the children. The defendant has appealed.

We summarize the material facts set forth in the finding, which is not subject to correction. Nettie Burke, referred to hereinafter as the plaintiff, and the defendant were married in Lawrence, Massachusetts, on July 14, 1934. The two minor children are the issue of the marriage, Barbara, born March 23, 1935, and Eileen, born August 24, 1936. From their marriage until early September, 1938, the couple lived in Elizabeth, New Jersey. Because of lack of employment, the defendant then took his wife and children to Somerville, Massachusetts, where he left them with his wife's aunt and returned to Elizabeth. He has not set up a home for the plaintiff since then, nor offered to do so, and has not lived with her since sometime prior to November, 1939. In that month he wrote that he no longer wanted to live with her, that he was going to St. Louis and that he wished that she would get a divorce. In 1940 he started a divorce action in St. Louis but withdrew it when the plaintiff entered an appearance to contest it. On December 20, 1940, upon her petition for a separation, the Probate Court in Massachusetts entered judgment finding that the 'petitioner for justifiable cause is actually living apart from her said husband' and decreed that she have the care and custody of their two minor children until further order of court, but there was no order for support.

The plaintiff at no time after the defendant left her requested him to resume marital relations with her, nor has he ever asked her to live with him again. From the time of the defendant's removal to St. Louis in 1940 until June, 1946, the defendant neither visited the plaintiff or their children nor requested them to come to see him. The defendant is now a resident of Connecticut. During the period 1940 through 1948, his annual income steadily increased from $220 to $7350, and from January 1, 1949, to May 21, 1949, just prior to the trial, his income totaled $3450. From April, 1947, through February, 1949, his gross salary was $600 per month plus $150 extra in December of 1947 and 1948, and at the time of trial his pay was $125 per week. His contribution for the support of the plaintiffs from 1940 to the time of the trial varied from $101 to $1800 per year. The plaintiff's annual earnings for the same period varied from nothing in 1940 and 1941 to a maximum of $1860 in 1948. In 1949, she was earning $165 per month.

On November 6, 1946, the plaintiff and defendant, together with a trustee, executed an agreement whereby the defendant waived all claim to the plaintiff's property and agreed to pay her $150 per month for the support of their minor children. It provided that 'said monthly payment may be revised at any time depending upon the financial position of the said Henry Burke, but it is the intent of this agreement that such payment shall always represent approximately three-eights (3/8 ths) of his net income.' The duration of the agreement was not specified. From its execution until the time of trial, the defendant substantially complied with its terms. His capital assets are negligible. A few hundred dollars which the plaintiff inherited some years ago has practically all been spent for support. Barbara is in high school and Eileen has just granduated from grammar school. Further facts material to the amount expended by the plaintiff for support are referred to below.

The gist of the court's essential conclusions is: (1) The separation of the family has been without fault by the plaintiffs. (2) In violation of his continuing duty to support the plaintiffs reasonably, the defendant failed to furnish such support from January 1, 1942, to December 1, 1946. (3) The plaintiff is entitled under § 7308 of the General Statutes to recover $6525, the amount she expended during that period for reasonable necessaries for herself and the children under standard of living in accord with the defendant's resources, plus $587.25 interest accrued since the institution of this action, a total of $7112.25. (4) The purported agreement of November 6, 1946, is not enforceable. (5) It did not provide for the plaintiff's support, and her execution of it did not waive or release her claim to reimbursement for the expenditures above stated. (6) Its execution did estop her from recovering for expenditures of the same nature so long as the defendant complied with its terms, until the institution of this action on March 2, 1948, gave notice of her repudiation of it. (7) A reasonable amount for the defendant to contribute for the plaintiffs' support under his duty to provide them with reasonable support for the future is $250 per month.

Three of the four contentions relied upon by the defendant in his brief which call for consideration relate to the judgment for money damages for expenditures made by the plaintiff prior to the institution of this action. One of these attacks the court's finding that the plaintiff expended $9687.96 for necessaries from 1942 until December 1, 1946, when the agreement became operative. The defendant's claim is that the evidence did not 'support a finding that she had laid out and expended money in any amount so as to support a money judgment.' The court's findings showing the annual totals earned by the plaintiff and the annual amounts contributed to her by the defendant during this period are not attacked. These facts, in connection with the plaintiff's testimony, unassailed on...

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19 cases
  • Bruce R., In re
    • United States
    • Connecticut Supreme Court
    • July 11, 1995
    ...at 266, 492 A.2d 175 (parent cannot, without court approval, contract away obligation of support for minor children); Burke v. Burke, 137 Conn. 74, 79, 75 A.2d 42 (1950) (common law prohibited parents from contractually restricting or defeating their children's right to support); see also I......
  • Maturo v. Maturo
    • United States
    • Connecticut Supreme Court
    • May 4, 2010
    ...("our courts have also considered the parties' standard of living in determining child support payments"), citing Burke v. Burke, 137 Conn. 74, 76-81, 75 A.2d 42 (1950); Morris v. Morris, 132 Conn. 188, 193-94, 43 A.2d 463 (1945) ("we cannot hold that the trial court, taking into considerat......
  • Blake v. Blake
    • United States
    • Connecticut Supreme Court
    • April 26, 1988
    ...43 A.2d 463. Our courts have also considered the parties' standard of living in determining child support payments. Burke v. Burke, 137 Conn. 74, 76-81, 75 A.2d 42 (1950); Morris v. Morris, In determining the assignment of marital property under § 46b-81 or alimony under § 46b-82, a trial c......
  • Kirwan v. Kirwan
    • United States
    • Connecticut Court of Appeals
    • October 23, 2018
    ...long before that right was codified in our statutes." Id. As an example, the court in Guille cited to its decision in Burke v. Burke , 137 Conn. 74, 80, 75 A.2d 42 (1950), in which it stated: "A husband and wife cannot make a contract with each other regarding the maintenance or custody of ......
  • Request a trial to view additional results

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