Castagnola v. Fatool

Decision Date28 February 1950
Citation72 A.2d 479,136 Conn. 462
CourtConnecticut Supreme Court
PartiesCASTAGNOLA v. FATOOL. Supreme Court of Errors of Connecticut

Louis Stein, Bridgeport, for appellant.

Herbert B. Wanderer, Danbury, for appellee.

Before MALTBIE, C. J., and BROWN, DICKENSON, BALDWIN and ALCORN, 1 JJ.

MALTBIE, Chief Justice.

The plaintiff, former wife of the defendant but divorced from him and remarried, brought this action to recover for the support of a minor child of the parties custody of whom was awarded to her in the divorce decree but without any provision for his support. From a judgment for the defendant she has appealed.

The trial court concluded in effect that the plaintiff's right to recover was controlled by General Statutes, § 7340, which requires the divorced parents of a child to maintain him 'according to their respective abilities,' and that as there was no evidence of the ability of the defendant to furnish support there was no basis upon which judgment could be rendered in favor of the plaintiff. In Stanton v. Willson, 3 Day 37, 3 Am.Dec. 255, we had two cases before us. In one, the plaintiff presented a claim against the estate of her former husband to recover moneys expended for and support furnished to certain children of the marriage after she had secured a divorce from him and been appointed their guardian by act of the General Assembly. The trial court, 3 Day at page 40, directed the jury to find for the plaintiff to recover 'such part of the account as was just and reasonable, taking into their consideration the situation and circumstances of the respective parties.' We sustained the judgment. In the course of the opinion, we said, 3 Day at page 56, that as guardian of the children the plaintiff had the same right to recover from their father as would a stranger under a like appointment. That statement went beyond the actual issue in the case and would seem to lead to the conclusion that the mother could recover for all the support she had furnished them. In Finch v. Finch, 22 Conn. 411, the plaintiff, the mother of a minor child, made a claim upon the estate of her former husband for the entire cost of the support of a child who had been born to them and whose custody had been awarded to her in the divorce action. We held, 22 Conn. at page 416, that the legal liability of each parent necessarily depended upon his or her ability to furnish maintenance, and we said, 22 Conn. at pages 417, 421: 'At least, the equal obligation of these parties, as parents, by the dissolution of the marriage, yet exists. We have, therefore, a case, in which one of the parties, whose duty it is to maintain these children, and to contribute equally, so far as we know, to this object, is seeking to recover the whole expense of such maintenance, from the other. * * * It seems to a majority of the court, that the sole obligation of supporting the children, which was thrown upon the husband and father, by the state of coverture, is essentially charged, or modified, by the dissolution of the marriage. And now, their pecuniary condition and ability may be equal, or otherwise. The mother may have ample means, and the father none, and in such case, surely, it would be inequitable, to charge the father with the entire maintenance of the children, while they remain in their mother's service, and under her exclusive control; and we do not believe the common law imposes any such obligation.' We referred, 22 Conn. at page 420, to the statement in the opinion in Stanton v. Willson, supra, that as guardian of the children the mother had the right to charge the support of the children to the father, and disapproved it. Two of the judges dissented, substantially on the ground that at common law the primary duty to support children rested upon the father and that the divorce did not change that obligation; and the dissenting opinion closes with a suggestion that it was for the legislature rather than the court to alter that rule.

That decision was made in 1853. At the session of the General Assembly in 1854 an act was passed which is quoted in the footnote. Public Acts, 1854, c. 38. 2 The first section was a legislative adoption of the rule of liability announced in the majority opinion in the Finch case and would apply to a recovery of past support; and it made the basis of that liability 'the abilities of such parents respectively.' The second section authorized an order either in divorce proceedings or by a petition subsequent to the granting of a divorce for the support of minor children of the marriage, in such a sum as the court should find to be 'just and equitable'; the terms of this section are closely analogous to those of the statute then in existence concerning orders for support of poor persons by their relatives; Statutes, 1849, p. 540, § 31; that statute had already been construed not to be applicable to a recovery of past support; Newtown v. Danbury, 3 Conn. 553, 559; and there can be no question that the second section of the 1854 act was intended to operate prospectively.

In 1876, Welch's Appeal, 43 Conn. 342, came before us. Again the question presented was whether a mother who had been awarded a divorce and the custody of a minor child of the marriage had a valid claim against the estate of the deceased father for the support of the child. The matter was referred to a committee, which found, 43 Conn. at page 343, that, if the father 'was liable to pay the appellant a fair proportion of the necessary expense of such support according to his pecuniary ability,' a certain amount would be 'a just and fair proportion of such expense for his estate to pay.' The case was reserved to us and one of the questions asked was whether the mother was entitled to recover 'the expense of supporting the child referred to in the report.' Counsel for the estate, 43 Conn. at page 347, proceeding upon the assumption that the act of 1854 was merely declaratory of pre-existing law, claimed that the divorce terminated all claims which the mother had upon the father by virtue of their having been married and that, as no order of support had been sought in the divorce action, the mother must be deemed to have...

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  • State v. Hughes
    • United States
    • Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
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    ...v. City Bank & Trust Co., 115 Conn. 393, 401, 161 A. 852.' 'Wilson v. Miller, 144 Conn. 212, 216, 128 A.2d 894, 896; Castagnola v. Fatool, 136 Conn. 462, 468, 72 A.2d 479; Miller v. Phoenix State Bank & Trust Co., 138 Conn. 12, 16, 81 A.2d 444; State v. DeGennaro, 147 Conn. 296, 303, 160 A.......
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    ...revision are not intended to alter its meaning and effect, and this is particularly true of the Revision of 1875.' Castagnola v. Fatool, 136 Conn. 462, 468, 72 A.2d 479, 482, and cases cited. It is therefore to be assumed that the revisers in 1875 considered that the word 'injure' conveyed ......
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  • White v. White
    • United States
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    • May 22, 1951
    ...the pecuniary ability of each and make such decree against either or both for such maintenance as it considers just. Castagnola v. Fatool, 136 Conn. 462, 465, 72 A.2d 479. Correlative to the duty of the father to support is the right to the custody and companionship of the child. Ordinarily......
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