Dochelli v. Dochelli

• Decision Date: 05 January 1939
• Citation: 125 Conn. 465,3 A.2d 666
• Court: Connecticut Supreme Court
• Parties: DOCHELLI v. DOCHELLI.

3 A.2d 666

125 Conn. 465

DOCHELLI v. DOCHELLI.

Supreme Court of Errors of Connecticut.

January 5, 1939

Appeal from Superior Court, Litchfield County; Frank P. McEvoy and Kenneth Wynne, Judges.

Action for divorce by Harry A. Dochelli, Sr., against Pauline Vita Dochelli, brought to the superior court and tried to the court. From a judgment for the plaintiff, defendant appealed and the court subsequently ordered the plaintiff to pay defendant $500 for counsel fees and expenses by way of alimony pendente lite, from which order plaintiff appeals. On motion to erase appeal^[1]. Motion denied.

No error.

Per Curiam.

The plaintiff secured a judgment of divorce in the trial court and the defendant appealed. After the trial court had made its finding and the defendant had filed an assignment of error she renewed a motion previously made but not determined for alimony pendente lite and an allowance for fees and expenses to the appeal to this court, including the fees and expenses of her counsel. The trial court made an order that the plaintiff pay the defendant the sum of $500 ‘ for counsel fees and expenses by way of alimony pendente lite.’ From that order the plaintiff took an appeal and filed assignments of error. The motion to erase states that testimony was taken at the hearing upon the motion for allowances and that the trial court also had before it a transcript of the evidence at the trial of the divorce action. No request for a finding was filed and the trial court has made none. The defendant has moved to erase the appeal because of the lack of a finding to support it.

The defendant's motion for alimony and an allowance alleged that she was without any adequate means of support and without means to prosecute the appeal. As far as the record discloses these allegations were not contested and we may assume that they are correct. The printing of the record for this court necessarily involves, in order to present the many assignments of error in the defendant's appeal which attack the finding, the printing of much testimony. It would plainly be unjust to require the defendant to undertake the expense of this until the allowance made to her by the trial court is paid, if she is entitled to it. The plaintiff's appeal from the order making that allowance should be first disposed of. To do that the plaintiff must present to us a record adequate to determine some claims he makes of errors committed by the trial court.

Whether or not an appeal is meritorious is a consideration important and perhaps controlling in passing upon such a motion as that of the defendant for allowances. Valluzzo v Valluzzo, 104 Conn. 152, 156, 132 A. 406. The trial court in its memorandum of decision stated that the appeal had ‘ legal merit,’ basing that conclusion upon ‘ an examination of the file and the record coupled with some degree of knowledge’ regarding such cases. One of the plaintiff's reasons of appeal, the only one sufficiently specific to comply with our rules, is that the trial court erred in failing to hold that on the face of the record the appeal of the defendant was without merit. Claims of error apparent on the record may be presented without a finding. Practice Book 1934, p. 99, § 336. The appeal without a finding, presents the single question whether the trial court upon the face of the record was in error in granting the...