Felton v. Felton

• Decision Date: 05 January 1938
• Citation: 123 Conn. 564,196 A. 791
• Court: Connecticut Supreme Court
• Parties: FELTON v. FELTON.

196 A. 791

123 Conn. 564

FELTON v. FELTON.

Supreme Court of Errors of Connecticut.

January 5, 1938

Rehearing Denied Feb. 3, 1938.

Appeal from Superior Court, New Haven County; John Rufus Booth Judge.

Action by Anna M. Felton against George H. Felton for a divorce. Judgment for plaintiff, after which her motion to reopen and modify to the extent of granting her a nominal amount by way of alimony was denied, and plaintiff appeals in so far as judgment failed to grant alimony.

No error.

David R. Lessler, of Bridgeport, for appellant.

Harry H. Kleinman, of Hartford, for appellee.

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

AVERY Judge.

The plaintiff brought her action for a divorce on the ground of desertion. The case came on to be heard as an uncontested case and, after a hearing, the court entered judgment for a divorce but refused to award alimony. Thereafter the plaintiff moved to reopen the decree for an allowance of alimony. This motion was denied and the plaintiff appealed from the judgment. It is a contention of the plaintiff that the court erred in refusing to allow her alimony from her husband's income at least in a nominal amount. The facts of the case as found by the court are as follows: The plaintiff and defendant married in 1913. About June 1, 1930 the defendant willfully deserted the plaintiff and has since continued such desertion. During their marriage and before their separation, the defendant acquired three pieces of real estate in Milford, consisting of houses and land. None of these acquisitions were due to any financial assistance of the plaintiff. Before 1930, the defendant voluntarily and without any monetary consideration conveyed an undivided half interest in the properties to the plaintiff. Shortly after the separation in June, 1930, he conveyed to her his remaining interest, subject to a night of occupancy of his mother in a part of one of the houses; and, in consideration of this last transfer, the plaintiff agreed to waive all future claims against him for her personal support. The value of the properties, in 1930, was $5,400, subject to mortgages of $4,450.

Since the defendant's half interest in the properties was acquired, the plaintiff has occupied a part of one of the houses, the defendant's mother part of the same house, and the plaintiff has rented some of the other rooms therein. She has also rented the other two properties. She has been continuously in the possession of all three properties and has reduced the mortgage by about $1,550. The present value of all the properties is $4,900 and the total mortgages thereon amount to $2,900; and, aside from the building in which she lives, the income at present amounts approximately to $300 annually. The plaintiff is apparently between 45 and 50 years of age, in good health, has been employed for some years, and is still employed and earning $20 per week. There were two children of the marriage, both daughters, married, and the plaintiff has no one dependent upon her for support. The defendant is apparently about 50 years of age, in good health. His sole estate consists of a secondhand 1924 Ford truck. He earns $28 per week. The trial court concluded that the plaintiff was entitled to a divorce but that the age, health, station, earning capacity, and estate of the plaintiff, when compared with similar features concerning the defendant, did not justify an award of alimony, particularly in view of her agreement in 1930 to release the defendant of all claims of future support.

Our statute, General Statutes, § 5182, provides that the court may assign to any woman divorced by it a part of the estate of her husband and, in addition thereto or in lieu thereof may order alimony to be paid from the husband's income, and among other things provides that ‘ any order for the payment of alimony from income may, at any time thereafter, be set aside or altered by such court.’ The claim of the plaintiff is that, in a case of this character, the court should have made an order for the payment of some alimony from income even if a nominal amount, so that there would be some basis to apply to the court thereafter for a modification of the judgment and an increase or change in the amount in case the circumstances of the plaintiff thereafter justified such a change. The plaintiff contends that, inasmuch as the case was made ex parte by reason of the defendant's default, the plaintiff is entitled to at least some alimony. As a general proposition, a default admits the truth of the facts alleged, but not that the plaintiff is entitled to the relief asked for. People v. Rust, 292 Ill. 412, 415, 127 N.E. 69, 71; 3 Freeman, Judgments, 5th Ed., § 1282; 34 C.J. 174. ‘ A default in an action at law is somewhat similar to the entry of a decree in equity that the bill be taken for confessed. Neither is a final disposition.’ Hooton v. G. F. Redmond & Co., Inc., 237 Mass. 508, 513, 130 N.E. 107. In a divorce case, even though the defendant does not appear or...