England v. England
| Decision Date | 18 December 1951 |
| Citation | 85 A.2d 483,138 Conn. 410 |
| Court | Connecticut Supreme Court |
| Parties | ENGLAND v. ENGLAND. Supreme Court of Errors of Connecticut |
Jay E. Rubinow, Manchester, Jacob Schwolsky, Hartford, for appellant.
Louis M. Schatz, Arthur H. Schatz and Nathan A. Schatz, all of Hartford, for appellee.
Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.
Under the first count of her complaint as amended the plaintiff claims a divorce on the ground of intolerable cruelty, and under the second she asks that conveyances of property made without consideration by the defendant to his sister to defeat the plaintiff's claim for alimony be set aside. The court by interlocutory orders awarded alimony pendente lite to the plaintiff, ordered payment of counsel fees and expenses, and prescribed the periods for visitation of the children by the defendant and that only then was he to go upon the property comprising the family home, which, pursuant to his agreement, the children and the plaintiff were occupying during the pendency of the action. The defendant has appealed from these orders.
We summarize the material facts found by the court which are not subject to correction. The parties were married July 3, 1925. Six of the eight children of the marriage are minors. Five of them, together with one adult daughter who is gainfully employed, live with the plaintiff in the defendant's house in Manchester, where the family has lived for about eighteen years. It is an eleven-room single dwelling with three bathrooms and is considerably out of repair. The household furnishings and equipment are much the worse for wear, and, though needed, there have been no replacements in the past five years. The plaintiff has suffered for the past sixteen years from varicose veins and needs treatment. She has had no domestic help and has done all of the cooking, laundry and other work in keeping house for the family, ordinarily working from 6 a. m. to 10 p. m. daily. She is unable to continue to care for her home and family properly without domestic help. She is in need of dental work and surgery, which she has foregone because it was too humiliating to ask the defendant for money. Two of the minor sons are also in need of surgical or medical treatment.
The plaintiff has no money or assets of any kind and is wholly dependent upon the defendant for her living and support and for that of the children who are living with her. The defendant has given no allowance to either the plaintiff or the children, and the total amount given her annually for her clothes has averaged less than $80 during the last three years. Contributions from her two oldest daughters have taken care of what little recreation she has had and of her personal expenses and those of the younger children. When this action was brought on March 20, 1950, the defendant had real estate holdings in Manchester of a total reasonable value of $218,430, free from mortgage. He also owned certain real estate mortgages. Shortly thereafter, he recorded assignments of sixteen of these, in the total amount of $140,600, to his sister, who lives in Florida. At this time he further transferred to her and to others substantial blocks of securities. He is engaged in the lumber and building businesses.
At the hearing, the defendant, who had left the home, agreed that during the pendency of the action he would allow the plaintiff and the children to remain in the house rent free and that he would pay for electricity, telephone, gas and fuel. He has failed to support the plaintiff and the children in accordance with his ability. The sum of $500 per month is a reasonable allowance to the plaintiff for her support and for that of her minor dependent children during the pendency of the action, in addition to the provision for the use of the home with the necessary services. The court concluded that the plaintiff was entitled to alimony pendente lite on this basis and entered its order accordingly.
The court's authority to award alimony pendente lite is expressly provided for in § 7335 of the General Statutes. Payments pursuant to such an award constitute 'a found for the current support of the wife.' Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173, 174. Its purpose is to provide for her and her dependent children while she is living apart from her husband pending a determination of the issues in the case. It is within the sound discretion of the trial court whether such an allowance should be made and, if so, in what amount. Its decision will not be disturbed unless it clearly appears that it involves an abuse of discretion. See Heard v. Heard, 116 Conn. 632, 635, 166 A. 67; Steinmann v. Steinmann, 121 Conn. 498, 503, 186 A. 501. It is incumbent upon the court, in reaching its conclusion, to consider the relevant circumstances, including the amount of the estate of the husband, his income, age, health and earning capacity, and the age, health, station and separate estate of the wife. Felton v. Felton, 123 Conn. 564, 567, 196 A. 791; see Olmstead v. Olmstead, 85 Conn. 478, 480, 83 A. 628. That the court followed this course is apparent from its conclusion that the It is manifest that upon the facts found this conclusion cannot be disturbed and that there was no abuse of discretion in the court's award of alimony pendente lite.
The defendant's principal contention is that regardless of his ability to pay the court, instead of awarding support to the plaintiff and her minor children 'in accordance with their needs,' could only order such payment by the defendant as would provide that 'standard of living to which the plaintiff has been accustomed.' No authority is cited in support of this claim. If this were the law, in an action for divorce on the ground of intolerable cruelty consisting in part of a wilful total refusal and failure by an affluent husband to make any provision at all for his destitute wife and children over an extended period prior to the ultimate bringing of the action, the court would be foreclosed from according her any relief by way of alimony pendente lite. To state such a proposition is to refute it. The standard of living properly to be provided by alimony is that which the husband can afford. A further contention of the defendant is that because of his offer to permit the plaintiff to purchase for her needs on store accounts charged to...
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