German v. German

• Decision Date: 07 December 1938
• Court: Connecticut Supreme Court
• Parties: GERMAN v. GERMAN.

3 A.2d 849

125 Conn. 84

GERMAN v. GERMAN.

Supreme Court of Errors of Connecticut.

December 7, 1938

Rehearing Denied Feb. 7, 1939.

Appeal from Superior Court, Fairfield County; Frank P. McEvoy Judge.

Action by Lillian M. German against John W. German to enforce the alimony provisions of a New York divorce decree, brought to the superior court and tried to the court. From a judgment for the plaintiff, defendant appeals.

Error and new trial ordered.

In proceeding to enforce alimony provisions of New York divorce decree where judgment directed that if payment was not made an attachment for contempt should issue, contempt proceedings against defendant for failure to obey decree for payment of sum found due should not be instituted until a failure to pay has occurred.

William Hanna and Herbert B. Wanderer, both of Danbury, for appellant.

Sidney Vogel, of South Norwalk, for appellee.

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

MALTBIE, Chief Justice.

In this action the plaintiff, divorced from the defendant by a decree of a New York court in 1916, is seeking equitable relief to compel payment of alimony awarded her in the divorce proceedings. The defendant has appealed from a decision specifically decreeing that he forthwith pay to her the amount of alimony which had become due under the order of the New York court.

An appeal from a judgment entered in this case upon the plaintiff declining to plead over after a demurrer to the complaint had been sustained has been before us, and we held that our courts had equitable jurisdiction to enforce a decree for alimony made by the courts of another state. German v. German, 122 Conn. 155, 188 A. 429. Such a remedy needs no support by proof of an independent equity but the very nature of the proceedings is sufficient to bring it within the proper field of equitable remedies. A decree granting relief would be ‘ none the less equitable because it is sought in the form of a money payment.’ Grand Lodge of Conn. v. Grand Lodge of Mass., 81 Conn. 189, 201, 70 A. 617, 622. Like a decree for alimony awarded in a judgment of divorce rendered in a court of this state, the decree ordinarily would be enforced, if payment were not made, by proceedings in contempt. Lyon v. Lyon, 21 Conn. 185. A court sitting in equity may, however, if the specific remedy claimed is inappropriate, render a judgment simply for damages, enforceable as in an action at law by execution. State v. Sunapee Dam Co., 72 N.H. 114, 55 A. 899; 1 Pomeroy Jurisprudence, 4th Ed., p. 374. One of the reasons which may bring about this result would be the fact that the defendant would not be able to perform the act ordered by the court; County of Mobile v. Kimball, 102 U.S. 691, 707, 26 L.Ed. 238; Pomeroy, Op. Cit.; for a court of equity will not make a decree which it has no power to enforce. Morris v. Peckham, 51 Conn. 128, 133.

The defendant claimed that he had no funds in possession or concealed with which to pay the arrears of alimony which were due. The trial court, however, concluded that the defendant was a man of large means, well able to pay his obligations but having his assets so concealed as to make them unavailable to legal process, and that he possessed assets to the value of at least $15,000 which he had concealed by placing them in his wife's name, in order to put them beyond the reach of legal process and the plaintiff's claim. While there seems to have been some misconception on the trial as to the precise issues determinative of the right of the plaintiff to specific relief, if these conclusions were properly reached the judgment must stand. On the other hand, they clearly were the basis upon which the trial court proceeded in its decision to grant such relief, and if they were not properly reached the judgment cannot be sustained.

Without going into the details of the finding upon which the trial court reached its conclusion and which would require correction in some other respects than those we shall mention, the court has found these essential facts: The defendant had been employed from 1915 to 1931 with one company, receiving from 1915 to 1923 $5000 a year, thereafter $10,000 a year until about 1928, and $15,000 a year until 1931, and in addition bonuses aggregating in all $25,000. Since 1931 he has not been employed except upon his own farm. Between 1917 and 1922 the defendant purchased five parcels of land in Redding, Connecticut, comprising about fifty-six acres, with buildings thereon, and invested about $15,000 in these lands; title to three parcels was taken in the name of the defendant, to one parcel in the name of his present wife, and to the other in the names of both; and in 1922 he quitclaimed all his interest in the lands to his wife. In 1926 the defendant entered into a trust agreement with a New York bank and deposited insurance policies and other things of value with it; through this trust he maintains $125,000 of insurance on his life and he purchased and disposed of more than $102,000 of additional insurance; on February 11, 1929, he made another trust agreement with the same bank, depositing insurance policies with a cash value of $3420 and securities with a value of $2600; in 1931 the cash value of the insurance policies in the trust was $7326.25 and of the securities $3700, and until 1931 he paid $300 monthly into this trust. These two trusts were interrelated and the trustee treated them as one. In 1927 the defendant's present wife also entered into a trust agreement with the same bank and deposited with it more than $20,000 in cash, during the next four years added $10,000, and in 1929 deposited securities costing $3000 or more; this trust is still alive and pays income of not less than $800 which she has never used but allowed to accumulate. She had, before marriage, been employed as a stenographer, earning from $1000 to $5000 a year; she had received $600 on the death of her father but had no property except savings from her salary and this sum; and the trust fund she created consisted of cash and things of value received by her from her husband.

Both the defendant and his present wife testified that the lands were purchased by her and she paid all of the...