Cantiello v. Cantiello

• Citation: 74 A.2d 199,136 Conn. 685
• Court: Supreme Court of Connecticut
• Decision Date: 31 May 1950
• Parties: CANTIELLO v. CANTIELLO. Supreme Court of Errors of Connecticut

Page 199

74 A.2d 199

136 Conn. 685

CANTIELLO v. CANTIELLO.

Supreme Court of Errors of Connecticut.

May 31, 1950.

Edward J. Lang, Bridgeport, Helen F. Krause and Kenneth J. Zarrilli, Bridgeport, for appellant.

Alvin W. Peck, Bridgeport, David Goldstein, Bridgeport, for appellee.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS, and O'SULLIVAN, JJ.

BALDWIN, Judge.

The plaintiff brought suit under § 7308 of the General Statutes for reimbursement of sums which she alleges she expended to support herself during the period of separation from her husband, the defendant. These facts appear from the finding, including the corrections to which the plaintiff is entitled: The parties were married in Bridgeport on February 28, 1939. There are no children of their marriage. The plaintiff had seven children by a previous marriage and the defendant four. During the time they were living together trouble developed and they separated several times, but each time they composed their differences. On November 11, 1941, they separated and have not occupied the same house since. The plaintiff lived with her children in a house on Newfield Avenue which she had purchased and subsequently transferred to her children. In January, 1944, she moved, with her children, into a house on Seaview Avenue purchased by the children. Five of the children were gainfully employed. They gave the plaintiff over $300 a week during the war years, so that she received, on an average, at least $100 a week from them during the entire period from 1941 to 1946.

The defendant has been employed by the post office department as a janitor for almost fourteen years. His pay in 1941 was approximately $30 a week and it had gradually been increased to $47 in 1946. In addition, he received a pension from the government of $10 a month for a service-connected disability incurred in World War I. Living with the defendant, and dependent upon him for full or partial support, were his own minor children, a married daughter with an infant child and a son who had joined the army in 1940 at the age of eighteen and was rendered totally disabled in 1943 when a ship on which he was a passenger was torpedoed. In May, 1945, the defendant instituted divorce proceedings on the ground of desertion against the plaintiff, who filed a cross complaint on the same ground. In June, 1946, when the action was still pending, Mrs. Cantiello made application for alimony pendente lite, and an order was entered for $12 a week. The complaint of divorce was dismissed in October, 1946, and the cross complaint was withdrawn. The defendant, however, continued to pay $12 a week up to the date of the trial of this case. At the time of the separation the plaintiff did not claim support, nor did the defendant refuse to furnish it. They remained friendly and occasionally went out together. The defendant bought the plaintiff a fur coat, dresses, slips and hosiery. She never requested her husband to return to her, although on a number of occasions he asked her to live with him and she refused. She apparently had no intention of demanding any support, for she was adequately taken care of by her children. The plaintiff preferred to live with her own children apart from the defendant and to support herself out of the substantial sums she was receiving from them. The court concluded that the plaintiff was not justified in living apart from the defendant and denied recovery.

The plaintiff bases her action on that part of § 7308 ¹ which provides that 'the wife shall be entitled to an indemnity from the property of the husband for any property of her own that shall have been taken, or for any money that she shall have been compelled to pay, for the satisfaction of any such claim.' By this language the General Assembly did not intend to modify the common law so far as the substantive rights and duties of a husband with relation to his wife are concerned. The purpose of the whole sentence of which the portion quoted is a part is to make it clear that, although the preceding part of the section makes the wife jointly liable with her husband to third parties for necessaries furnished the family, it is the husband who is primarily liable. See Bohun v. Kinasz, 124 Conn. 543, 546, 200 A. 1015. Under the statute, the wife is entitled to be indemnified by her husband for creditors' claims either when her property has been levied upon or when she has been compelled to pay 'for the satisfaction of any such claim.' The words 'such claim' refer to a claim for necessaries for which, under the provisions of the first part of the statute, she and the husband are jointly liable. None of these provisions makes the husband liable to the wife when the parties are living apart except the phrase 'or for her reasonable support while abandoned by her husband.' At common law a husband could not, by abandoning his wife, obtain release from the obligation which the marriage had imposed upon him to supply her with necessaries. Pierpont v. Wilson, 49 Conn. 450, 451. The words 'such claim' do not refer to any claim except one for which the husband is liable, and he is not liable under the statute to his wife for a claim for necessaries supplied by her while they are living apart unless the separation is caused by his abandonment, either actual or constructive. The court has not found that the defendant abandoned the plaintiff. Rather it found that, while the defendant had asked the plaintiff to live with him, she had refused, preferring to live with her own children and to support herself out of the substantial sums she was receiving from them, and it concluded that she was not justified in living apart from her husband. Under such circumstances, there could be no liability upon the defendant to reimburse the plaintiff. Boushay v. Boushay, 129 Conn. 347, 349, 27 A.2d 800; Alexander v. Alexander, 107 Conn. 101, 108, 139 A. 685.

It is the primary...