Cary v. Cary

Decision Date07 November 1930
Citation112 Conn. 256,152 A. 302
CourtConnecticut Supreme Court
PartiesCARY v. CARY.

Appeal from Superior Court, Hartford County; Carl Foster, Judge.

Petition by George Stone Cary against Margaret Boyee Cary to modify an order in regard to alimony and support of children. The case was tried to the court. From a judgment denying the petition petitioner appeals.

Error judgment reversed and directed.

On October 3, 1928, a decree of divorce was granted to Margaret Boyee Cary from George Stone Cary by the Superior Court for Hartford County. The judgment decreed that Mrs Cary the respondent herein should have the care, custody and education of the three minor children, with the right of the petitioner Mr. Cary to see them on the first Sunday of each month. It decreed that the petitioner pay to Mrs. Cary as alimony two hundred dollars a month as a reasonable portion of the petitioner's estate and to pay Mrs. Cary three hundred dollars a month as a reasonable sum toward the support of the minor children. Mr. Cary fully complied with these provisions of the judgment until March 1, 1930 but thereafter has not paid the two hundred dollars alimony to Mrs. Cary. Shortly after October 3, 1928. Mr. Cary remarried and is now living with his second wife. Mrs. Cary was married to Adolph Marge lot on June 4, 1929. She never informed Mr Cary of her remarriage although she met and spoke with him after the date of her marriage and continued to accept the alimony of two hundred dollars a month from the date of her remarriage until March 1, 1930.

Charles P. Roraback, of Torrington, for appellant.

Frank S. Shea and Vincent W. Dennis, both of Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

WHEELER, C.J.

The trial court concluded that the remarriage of Mrs. Cary did not, upon the facts as found, constitute ground for vacating or modifying the judgment of the superior court awarding her alimony. The appeal is predicated upon the claimed error in this conclusion as well as upon the overruling of the petitioner's claim that the proof of the remarriage of Mrs. Cary was prima facie cause for the court to revoke the award of alimony to her.

Alimony is the creature of statute. General Statutes of 1918, § 5287, in force at the time this petition was brought and judgment rendered thereon, provided: " 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," etc. In a strongly argued memorandum of decision the court denied the petition to vacate or modify the judgment for alimony upon the ground that under our statute alimony is not awarded the wife as support of which she is deprived by the acts of a husband, but is assigned as a part of the estate of her husband and in addition thereto, or in lieu thereof, the court may order alimony to be paid from her husband's estate. The judgment which the petitioner seeks to modify was the award as alimony of a specific sum to be paid from the husband's income, specified to be a reasonable portion of the petitioner's estate.

In Scott v. Scott, 83 Conn. 634, at page 639, 78 A. 314, 316, 21 Ann.Cas. 965, we said: " The court did not under the provisions of this statute [Revision of 1902, § 4556] make an allowance to the plaintiff in this case, as a debt due to the wife, or as damages to be paid to her by her late husband on their divorce, but as a part or proportion of his estate, fixed by the court in its discretion and appropriated to her and to which she thereupon became legally entitled. *** In other words, that which was determined by the judgment in the divorce case was an allowance out of the estate of the husband made for the support to which the wife was entitled, and of which she had been deprived through the husband's default in the performance of the marriage contract."

We quote a part of a sentence in Wright v. Wright, 93 Conn. 296, 105 A. 684, 686, descriptive of alimony when we say of the liability for alimony: " It is based upon the duty of the husband to continue to support a wife whom he has in legal effect abandoned. It defines that duty in terms of money or property, and decrees specific performance of it, and the state itself has a social and financial interest in performance of that duty." These decisions are in conflict with the major premise of the trial court's memorandum of decision. Among the circumstances to be considered in awarding alimony are the estate of the husband, his income, his age, health, and earning capacity; the age, health, station, and separate estate of the wife." Olmstead v. Olmstead, 85 Conn. 478, 480, 83 A. 628; Stapleberg v. Stapleberg, 77 Conn. 31, 38, 58 A. 233. Some of these circumstances clearly point to support as the basis for alimony. The common-law obligation of the husband to give support to his wife is the foundation upon which alimony in this state rests.

The trial court also relied upon the terms of the statute that in lieu of the assignment of a part of the estate of the husband the court may order alimony to be paid from his income. Since the assignment of a part of the estate of the husband as alimony became the absolute property of the wife, the court held that the payment from the income of a specific amount per month in lieu of the part of the estate in like manner became the absolute property of the wife. " Why," the court says, " should she not have in to that which was awarded to her in lieu thereof?" If the alimony decreed was in lieu of dower, or in settlement of property rights acquired by her, the authorities hold that the alimony is not affected by the wife's remarriage. Annotations in 30 A.L.R. 89 and 64 A.L.R. 1277.

But alimony of a sum to be paid periodically in lieu of the assignment of a part of the estate of the husband does not fall within this rule and the husband does not fall within this rule and the reasons which support the rule do not apply. Alimony of a specific part of the estate, or of a specific sum of money, when transferred to the wife passes out of the control of the court making the award. It...

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42 cases
  • Luster v. Luster
    • United States
    • Connecticut Court of Appeals
    • 26 April 2011
    ...with its incident of alimony, is a creature of statute. Ackerman v. Ackerman, 200 N.Y. 72, 76, 93 N.E. 192 [1910]; Cary v. Cary, [112 Conn. 256, 258, 152 A. 302 (1930) ]. It does not, however, follow that an action for divorce is one at law. The [l]egislature can create equitable rights and......
  • Burns v. Burns, 13490
    • United States
    • Connecticut Court of Appeals
    • 18 June 1996
    ...second husband and has thereby abandoned the provision made for her support by the court in its award of alimony." Cary v. Cary, 112 Conn. 256, 261-62, 152 A. 302 (1930); General Statutes § 46b-86(b) (allows modification in the event of remarriage or cohabitation). Furthermore, the defendan......
  • Dimon v. Dimon
    • United States
    • California Supreme Court
    • 17 March 1953
    ...continue to fulfill the obligation for her support which the law imposed upon him in virtue of the marriage contract.' Cary v. Cary, 112 Conn. 256, 260, 152 A. 302, 303. 'It is based upon the duty of the husband to continue to support a wife whom he has in legal effect abandoned.' Wright v.......
  • Baker v. Baker
    • United States
    • Connecticut Supreme Court
    • 25 June 1974
    ...he has abandoned. Stoner v. Stoner, 163 Conn. 345, 354, 307 A.2d 146; Shrager v. Shrager,144 Conn. 483, 487, 134 A.2d 69; Cary v. Cary, 112 Conn. 256, 260, 152 A. 302; Wright v. Wright, 93 Conn. 296, 300, 105 A. 684. The amount of alimony awarded under a decree of divorce is within the soun......
  • Request a trial to view additional results
2 books & journal articles
  • 1995 and 1996 Developments in Connecticut Family Law
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 71, 1996
    • Invalid date
    ...record made clear that he was neither.) 11 41 Conn. App. 716. 12 Both Lasprogato v. Lasprogato, 127 Conn. 510 (1941), and Cary v. Cary~ 112 Conn. 256 (1931), hold that alimony should terminate upon remarriage unless there are exceptional circumstances. Lasprogato and Cary were, however, mod......
  • Survey of 1993 Developments in Connecticut Family Law
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 68, 1993
    • Invalid date
    ...See Mihalyak y. Mihalyak, 30 Conn. App. 516 (1993), discussed infra, for an illustration of the importance of that distinction. 15. 112 Conn. 256 (1930). 16. Id. at 261. 17. Id. at 259. 18. 127 Conn. 510 (1941). 19. Id. at 515, quoting Cary, 112 Conn. at 261. 20. 30 Conn. App. 443 (1993). 2......

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