Dion v. Dion
| Decision Date | 17 December 1941 |
| Citation | 23 A.2d 314,128 Conn. 416 |
| Court | Connecticut Supreme Court |
| Parties | DION v. DION. |
Appeal from Superior Court, Hartford County; Dickenson, Judge.
Action by Henry C. Dion against Isabelle C. Dion for a divorce, brought to the Superior Court in Hartford County and referred to Honorable Frederick M. Peasley, State Referee. Judgment for defendant, and plaintiff appeals.
Error and case remanded.
Argued before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.
William M. Harney, of Hartford, for appellant (plaintiff).
A. A. Lawler, of Hartford (William J, Mulligan, of Hartford, on the brief), for appellee (defendant).
The plaintiff brought an action for divorce on the grounds of intolerable cruelty and desertion, to which the defendant pleaded a denial, and recrimination. The case was referred to a state referee to hear the evidence and report the facts to the court. He held hearings and rendered a detailed report finding the issue of intolerable cruelty in favor of the plaintiff. On the day the report was filed the defendant had secured permission from the court to amend her defense and plead condonation, as there had been evidence at the hearing tending to support such a defense. The court recommitted the report to the referee with direction to find the subordinate facts as to the amended claim of condonation, and the conclusions reached thereon. The referee filed an amended report finding the issue of condonation in favor of the plaintiff, but failed to state the subordinate facts. The court again recommitted it, and the referee filed a memorandum stating that the file did not disclose that the parties had stipulated that he might act without further evidence, and that if there was to be another hearing he could not hold it until considerably later. In this situation, the parties stipulated that in accordance with the provisions of § 172, Connecticut Practice Book, 1934, p. 62, the court might correct the referee's report and determine whether, when so corrected, it supported the conclusions of the referee, including the conclusion that the defendant had failed to sustain the burden of proof as to condonation. The court made a finding containing the same subordinate facts as were stated in the report, as to cruelty, and also certain other facts as undisputed or admitted, and concluded that the latter established condonation.
As the trial court heard no evidence, there was no basis upon which it could make a finding, Luth v. Butwill, 119 Conn. 697, 698, 176 A. 552; Dime Savings Bank of Hartford v. Bragaw, 125 Conn. 281, 283, 4 A.2d 924; the facts contained in the report were already a matter of record and the court could only correct the report by striking out findings made without evidence or adding findings which stated facts which were admitted or undisputed, Practice Book, § 172. The defendant filed a counterfinding, and to give that effect we would have to treat it as a remonstrance seeking certain corrections in the facts contained in the referee's report; but...
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