Clancy v. Clancy

• Decision Date: 15 June 1965
• Docket Number: No. 90719,90719
• Citation: 26 Conn.Supp. 46,212 A.2d 79
• Court: Connecticut Superior Court
• Parties: Jane CLANCY v. James M. CLANCY.

Page 79

212 A.2d 79

26 Conn.Supp. 46

Jane CLANCY v. James M. CLANCY.

No. 90719.

Superior Court of Connecticut, New Haven County at New Haven.

June 15, 1965.

James O'Connor Shea, New Haven, for plaintiff.

William L. Hadden, Sr., New Haven, for Frank M. Clancy, trustee.

MacDONALD, Judge.

The principal question to be determined here is whether this court can hold in contempt Frank M. Clancy, as trustee for the defendant, James Michael Clancy, and admittedly not a party to this action, for failing and refusing to comply with a judgment of this court entered June 14, 1960, and modified March 18, 1965, ordering the payment of certain sums to plaintiff as alimony and support for the five minor children of the parties out of assets of the defendant held in trust from him by said Frank M. Clancy as trustee.

It appears from the stipulation of facts dated May 26, 1965, from an examination of the trust agreement dated August 13, 1958, as amended, attached thereto, and from the judgment entered herein June 14, 1960, as modified March 18, 1965, that the facts are as follows:

1. Under a trust agreement dated August 13, 1958, and amended June 13, 1960, the defendant, James Michael Clancy, transferred all or most of his assets, including his interest in the partnership known as Edward Clancy Insurance Company and his interest in a six-family tenement block located at 29-31 Burke Street in Ansonia, to Frank M. Clancy, in trust for the payment of support to defendant's wife and five children.

2. On June 21, 1960, a judgment of legal separation was entered by this court in favor of the plaintiff, awarding her custody of the five minor children of the parties and ordering said Frank M. Clancy, as trustee, to pay in behalf of the defendant, James Michael Clancy, out of the trust, 'reasonable alimony and support to the plaintiff, Jane M. Clancy, in accordance with the terms of said trust agreement, but not less than $30 a month as support for each of the five minor children and $50 a month plus the net rentals from property at 29-31 Burke Street, Ansonia, as alimony until further order of this Court.'

3. A copy of this judgment and order was served upon said Frank M. Clancy, trustee, and he had notice and knowledge of said decree and order.

4. From the entry of said judgment until November, 1964, said trustee made the regular payments of $200 per month, plus net rentals from the Burke Street property, to plaintiff for alimony and support, as ordered.

5. By order entered by this court on March 18, 1965, so much of the order as read 'plus the net rentals from property at 29-31 Burke Street, Ansonia,' was modified to read 'plus $125.00 a month from the proceeds received from the sale of the property at 29-31 Burke Street, Ansonia.' Otherwise, said order has remained in full force and effect.

6. Since November, 1964, neither the defendant, James Michael Clancy, nor his trustee, Frank M. Clancy, has paid the monthly sums so ordered and they have neglected and refused to make such payments.

Upon the motion of the plaintiff, the defendant, James Michael Clancy, and Frank M. Clancy, trustee as aforesaid, were summoned to appear before this court to show cause why they should not be adjudged in contempt. On the appointed day, Frank M. Clancy, trustee, appeared by his counsel and, by agreement, the question of law as to whether or not he could be held in contempt was submitted to the court upon a stipulation of facts and briefs.

It is the contention of his counsel that Frank M. Clancy, trustee, was not and is not a party to this action, that his only notice of the proceedings was of the court's order, that his rights, duties and obligations as trustee are expressed in the written trust agreement, as amended, and that this court has no jurisdiction over him and, in effect, no power to interfere with or modify the terms of agreement.

Of course, it is true, as pointed out in plaintiff's brief, that under § 46-21 of the General Statutes this court 'may assign to any woman divorced by such court a part of the estate of her husband and * * * may order alimony to be paid from the husband's income'; under § 46-26 it may 'make and enforce such decree against either or both of them [parents] for the maintenance of such child as it considers just'; and, under § 46-29, in the case of legal separations the court 'shall have the same power in all matters relating to temporary and permanent orders for alimony, custody and support of children.' Unquestionably, the court had jurisdiction over the assets and income of the defendant, James Michael Clancy, and it had the power to make orders with respect thereto, regardless of whether or not it had jurisdiction over the individual administering these assets as trusts for the defendant. As stated in Restatement, 1 Trusts 2d § 199, comment f: 'if the proceeding is a proceeding quasi in rem, the court must have jurisdiction over the trust property to be affected by its judgment, but there need be no jurisdiction over the trustee personally, although he must be given reasonable notice and an opportunity to be heard.' See also Restatement, Judgments §§ 3, 32, 75. Here, Frank M. Clancy, trustee under a voluntary inter vivos declaration of trust, was placed in charge of most of the defendant's assets less than a year before plaintiff's action for a legal separation was instituted against the defendant. He admittedly had notice and knowledge of the decree ordering payments to plaintiff and, in fact, made payments, as ordered, through November, 1964. He had actual notice of the hearing on these proceedings to hold him in contempt and was well represented by counsel, so that he 'had an opportunity to be...