Dadio v. Dadio

• Decision Date: 02 June 1937
• Citation: Dadio v. Dadio, 123 Conn. 88, 192 A. 557 (Conn. 1937)
• Court: Connecticut Supreme Court
• Parties: DADIO v. DADIO.

192 A. 557

123 Conn. 88

DADIO v. DADIO.

Supreme Court of Errors of Connecticut.

June 2, 1937

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action by Rosina Dadio against Gabriel Dadio for damages for breach of an agreement for support and maintenance which was tried to the court.Judgment for the defendant, and the plaintiff appeals.

No error.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

Ellsworth B. Foote, John Clark FitzGerald, and David E. FitzGerald, all of New Haven, for appellant.

Herbert L. Emanuelson and Arthur T. Gorman, both of New Haven, for appellee.

AVERY Judge.

The parties to this case are husband and wife, and the present action was brought by the wife against the husband to recover certain payments claimed to have been due under the terms of a written contract between the parties.The case was tried to the court and judgment entered for the defendant, from which the plaintiff has appealed.The issue between the parties at the trial was which one breached the contract.On this appeal, the plaintiff seeks corrections of the finding for the purpose of showing that the contract was breached by the defendant, and the principal question raised is whether the finding is susceptible of such corrections as will necessitate a change in the conclusion of the trial court that the plaintiff failed to perform the contract upon her part and is, therefore, not entitled to recover thereunder.

The facts appearing in the finding so far as they are material may be stated as follows: The defendant is a man sixty-one years of age, living at 466 Putnam avenue in the town of Hamden.For thirty-five years he had been a farmer and truck gardener, and by industry and thrift had accumulated a substantial property.On February 17, 1921, he married the plaintiff.He had been previously married, his first wife having died, and he had two adult children by that marriage.The plaintiff was a widow and had ten living children by her first marriage.Upon the marriage of the parties, she took with her to defendant's home three of her minor children ranging in age from four to twelve years; her other children remained at her former home at 107 Starr street, Hamden.From the time of the marriage until April, 1928, the plaintiff lived at Putnam avenue with the defendant, during which period he supported her three minor children.On April 15, 1928, she instituted an action of divorce against him alleging intolerable cruelty.On October 8, 1929, the parties, each being represented by experienced and competent counsel, entered into a written agreement settling the divorce action and all property matters in dispute between them.By the terms of his agreement it was provided, among other things, that the defendant should convey to the plaintiff a tract of land, then valued at $25,000 or more, subject to his use for five years; and, thereafter, for his life unless the plaintiff should make a bona fide sale thereof.The agreement further provided that she would live a portion of the time with him, giving him reasonable assistance and comfort and her society, and that she should be permitted without objection upon his part to live a portion of the time as she might reasonably desire with her children; and, further, he agreed to pay her $20 a week toward her maintenance, she" keeping all the terms of this agreement upon her part to be performed."

Pursuant to this contract, the defendant paid her $20 a week until shortly before Thanksgiving Day, 1934.From April 8, 1929 until December 12, 1933, the plaintiff spent two or sometimes three days and nights a week at his home and the remainder of the week at her own home and that of her children.During a part of this period, the defendant joined her after his work was done, furnished a room in her house for their occupancy, and otherwise sought to co-operate, and also paid the agreed $20 a week for her maintenance while maintaining his own home and farm.On December 12, 1933, the plaintiff was at defendant's home and, as the culmination of a period of indifference, neglect, and fault-finding in a moment of irritation, but with no deliberate intent, the defendant roughly and forcibly threw her aside, in consequence of which she was caused to fall and sustained injuries to three of her ribs and to her teeth and gums.Thereafter, she wholly abandoned the defendant and has never resided with him since or in any wise performed her obligations under the contract.The trial court further found that the plaintiff appeared to be a self-seeking, neurotic woman only interested in herself and her children and in the defendant for what she could get out of him; that she failed without just cause to fulfill her contract; and concluded that she was not entitled to recover.The plaintiff sought to change the finding of the trial court by striking out various paragraphs thereof and asking the...