Fowler v. Fowler
| Decision Date | 25 June 1968 |
| Citation | 156 Conn. 569,244 A.2d 375 |
| Court | Connecticut Supreme Court |
| Parties | Evelyn FOWLER v. Kenneth F. FOWLER. |
John W. Kline, New Haven, for appellant (defendant).
William M. Vishno, New Haven, for appellee (plaintiff).
Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.
On December 13, 1959, the Superior Court in New Haven rendered a decree of divorce for the plaintiff and ordered the defendant to pay the sum of $2.50 per week for the support of each of the two minor children of the marriage. Custody of the minor children was awarded to the plaintiff, and no change has been made with respect to that order. On February 8, 1967, on motion of the plaintiff, the defendant was ordered by the court to appear to show cause why he should not be found in contempt for failure to comply with the court's order for the support of the minor children. Upon the hearing on the motion, the trial court found that the defendant was in arrears in his support payments and adjudged him in contempt. An order was entered that the defendant might purge himself of contempt by the payment of $1 per week on the amount found in arrears and by the payment of $5 per week in fulfilment of the current order of court. From this judgment the defendant has appealed.
The finding of subordinate facts, which is not attacked, recites the following: The defendant never made any of the support payments ordered by the court from his personal funds from the date of the divorce judgment to the date of the hearing on the contempt citation on March 29, 1967. Effective January, 1965, the defendant qualified for a disability award from the Social Security Administration. As a result of this award to the defendant, the plaintiff, in her capacity as guardian of the minor children, received monthly payments of $105 for their support. At the time of the contempt hearing, these payments aggregated $2835. As of that time, the defendant, in pursuance of the court's order, should have paid to the plaintiff for the support of the minor children the sum of $1895. The total of the social security payments received by the plaintiff for the support of the minor children exceeded the amount of the support payments due from the defendant under the support order. The judgment in the divorce action made no provision for the substitution of a social security award payable to the plaintiff as guardian of the minor children in place of the support payments ordered, and the defendant has never moved to modify the order of support in view of the social security award. The defendant has been receiving the sum of $66.15 a month from the Veterans Administration during the entire period following the divorce and, since January, 1965, the sum of $105 per month from the Social Security Administration for his own support.
The trial court concluded that the Social Security Administration payments to the plaintiff were not allowable as a credit against the defendant's arrearage and found the defendant in contempt of court. The defendant has assigned error in the conclusions of the trial court.
Under § 46-26 of the General Statutes, after divorce the obligation to support a minor child or children of the marriage rests upon both parents according to their respective abilities. Yates v. Yates, 155 Conn. 544, 547, 235 A.2d 656; White v. White, 138 Conn. 1, 5, 81 A.2d 450. The amount of an award for the support of children incident to a divorce is a matter within the sound discretion of the court and will not be disturbed unless the discretion appears to have been abused. Riccio v. Riccio, 153 Conn. 317, 319, 216 A.2d 431; Shrager v. Shrager, 144 Conn. 483, 486, 134 A.2d 69. An order for the support of minor children is not based solely on the needs of the children but takes into account what the parent can afford to pay. In consequence of this, a child support order may not accurately reflect what the children actually required but only what the parent can reasonably be expected to pay. Delevett v. Delevett, 156 Conn. 1, 4, 238 A.2d 402. The amount of the support order in the instant case was minimal and indicates clearly that the trial court in rendering the divorce decree and the support order was cognizant of these considerations. That the trial court in the contempt proceeding was aware of the same considerations is evidenced by the order requiring the payment of only $1 a week on the arrearage, while continuing the existing order of $5 per week.
The defendant claims that payments to the plaintiff for the support of the minor children...
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