Christiano v. Christiano.

Decision Date21 February 1945
Citation41 A.2d 779,131 Conn. 589
PartiesCHRISTIANO v. CHRISTIANO.
CourtConnecticut Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Fairfield County; O'Sullivan, Judge.

Action by Louise A. Christiano against Dominic H. Christiano for divorce. A judgment modifying a judgment granting plaintiff a divorce and ordering payment of alimony to her was modified on defendant's motion by striking out the alimony order, and, from a judgment denying plaintiff's motion for reinstatement of alimony, plaintiff appeals.

Error, judgment set aside, and new trial ordered.

Frederick Miles, of Stamford (Mark W. Norman, of Stamford, on the brief), for appellant (plaintiff).

Leo Nevas, of Westport (Rocco R. P. Perna, of South Norwalk, on the brief), for appellee (defendant).

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

MALTBIE, Chief Justice.

On December 15, 1939, the plaintiff was granted a divorce from the defendant on the ground of intolerable cruelty. The judgment found, in a paragraph numbered 4, that the defendant ought to pay her alimony of $15 a week, and it was so ordered. On December 3, 1940, the defendant made a motion for a modification of the order as to alimony on the grounds that there had been a substantial change in his financial situation and that she had been guilty of improper conduct. The trial court, in a memorandum granting the motion, stated: ‘The annexed transcript of evidence shows that this motion ought to be and it is granted. Order for payment of alimony revoked.’ A supplement judgment was rendered which modified the original judgment by striking out paragraph 4 and the order for the payment of alimony. On November 10, 1943, a Motion for Reinstatement of Alimony’ was filed in the name of the plaintiff. This recited that the cause for the previous revocation of the order no longer existed and asked an order that the defendant pay the plaintiff alimony pursuant to the original judgment. From the denial of that motion, this appeal is taken.

The trial court has found these additional facts: The transcript of the evidence before the court when the motion to modify the order as to alimony was made shows that there was evidence that the plaintiff had frequently been seen intoxicated on the streets of the town where she lived, both in the daytime and in the evening, that she had been arrested on several occasions and that she was a frequenter of taverns. From April, 1942, until November, 1943, the town of Darien had paid her weekly sums of money because she was poor and unable to support herself. The welfare officer of the town made these payments to her personally, going on different days of the week and at different hours; but in a year and a half he had not seen anything to indicate that she was using alcohol or otherwise misconducting herself. He also arranged with a minister to visit her and report to him, but the minister did not appear as a witness.

The Motion for Reinstatement of Alimony’ was signed ‘The plaintiff, Louise A. Christiano,’ by a firm of attorneys who filed it. The attorneys are counsel for the town of Darien and at the commencement of the hearing they stated that the proceeding was brought in the interests of the town, as the plaintiff was a welfare client. During the pendency of the matter they filed with the clerk of the court a written ‘Authorization,’ which was signed by the plaintiff and which stated that they were authorized to prosecute the motion for her and in her name. The finding states that the trial court could not accept her statement that she was requesting the restoration of alimony in her own behalf, but that the influence seeking it came solely from the town. The court concluded that, as the real party in interest which pressed the motion was the town and not the plaintiff, it should not be granted, and that too short a time had elapsed since the revocation of the order of alimony to make reasonably certain that the plaintiff's good conduct was characteristic of her future life and not merely indicative of a tempotary status; and the court declined to decide whether an order for alimony from income, entirely revoked, could be restored in whole or in part.

The statute authorizing the award of alimony in divorce actions contains this provision: ‘Any order for the payment of alimony from income may, at any time thereafter, be set aside or altered’ by the court in which the judgment was rendered. General Statutes, § 5182. At least when the original judgment contains such an award, this provision has, so far as we know, without exception been treated by our trial courts as giving them a continuing jurisdiction under which the allowance may be changed from time to time as the circumstances of the parties require. A court acts within the scope of such a continuing jurisdiction when, having altered the original decree so tht the husband is freed from his obligation, it later orders the resumption of payments upon finding that circumstances have so changed that justice requires this to be done.

It is true that in this case the terms of the supplemental judgment would be capable of an interpretation that it modified the original judgment as of the time it was rendered by the elimination of any provision for alimony. That obviously was not the intended result. To give to it such a construction would mean that payments of alimony previously made had had no proper foundation. We must read it ‘in connection with its context and the judgment as a whole, and the circumstances surrounding the making of the judgment-the condition of the cause in which it was rendered.’ 1 Freeman, Judgments, 5th Ed., p. 133. The motion before the court at that time was for a ‘modification’ of the order, and its memorandum the trial court specifically stated that the ‘motion’ was granted. Moreover, the court attaches to its memorandum a transcript of the proceedings at the hearing and this shows that at its close the court made this statement: ‘If she is simply spending this money for liquor,-if she had no money, she couldn't buy liquor. It might be a good idea to not give her anything for a while, and then, if she wants to behave herself, she could come in and ask for money.’ The effect of the supplemental judgment was not to blot out from the original judgment as of the time it was rendered any provision for alimony, so that the motion now before us would amount to an original application for alimony where none had been awarded, but its effect was to provide that, after the granting of the motion, the defendant was freed from his obligation to make payments, leaving it within the power of the court, should it find that circumstances have so chaged as to justify such action, to grant such a motion as the one now before us and order resumption of the payments.

As a basis for a consideration of the two conclusions upon which the trial court grounded its decision, we quote from Scott v. Scott, 83 Conn. 634, 639, 78 A. 314, 316, 21 Ann.Cas. 965, where, speaking of alimony, we said: ‘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.’ In Wright v. Wright, 93 Conn. 296, 300, 105 A. 684, 686, we said of certain...

To continue reading

Request your trial
36 cases
  • Breen v. Phelps
    • United States
    • Connecticut Supreme Court
    • January 26, 1982
    ...(1948); Dawson v. Orange, 78 Conn. 96, 129, 61 A. 101 (1905). It has also been followed in other contexts. See Christiano v. Christiano, 131 Conn. 589, 596, 41 A.2d 779 (1945); Santoro v. Kleinberger, supra. "According to the generally accepted view, one judge may, in a proper case, vacate,......
  • Krasnow v. Krasnow
    • United States
    • Connecticut Supreme Court
    • August 4, 1953
    ...the husband's income which it has the continuing power to enforce and modify. General Statutes § 7335; Christiano v. Christiano, 131 Conn. 589, 592, 596, 41 A.2d 779, 6 A.L.R.2d 853. The same holds true as to the award of the custody of a child during his minority. General Statutes §§ 7337,......
  • Alibrando v. Alibrando, 10987.
    • United States
    • D.C. Court of Appeals
    • April 11, 1977
    ...v. Daniels, 82 Idaho 201, 351 P.2d 236 (1960); Bowman v. Bowman, 163 Neb. 336, 79 N.W.2d 554 (1956); Christiano v. Christiano, 131 Conn. 589, 41 A.2d 779 (Sup.Ct. Err., 1945); Pauley v. Pauley, 280 Ky. 66, 132 S.W.2d 512 (Ct.App., 1939); Suozzo v. Suozzo, 16 N.J.Misc. 475, 1 A.2d 930 (Ct.Ch......
  • Lashgari v. Lashgari
    • United States
    • Connecticut Supreme Court
    • August 13, 1985
    ...supra. "The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. Christiano v. Christiano, 131 Conn. 589, 592, 41 A.2d 779 [1945]." Garguilo v. Moore, 156 Conn. 359, 365, 242 A.2d 716 (1968); Nauss v. Pinkes, 2 Conn.App. 400, 411, 480 A.2d 568 (......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT