Harrison v. Union & New Haven Trust Co.

• Citation: 162 A.2d 182,147 Conn. 435
• Court: Supreme Court of Connecticut
• Decision Date: 14 June 1960
• Parties: Fannie K. HARRISON v. UNION AND NEW HAVEN TRUST COMPANY, Executor (ESTATE of Charles W. HARRISON). Supreme Court of Errors of Connecticut

Page 182

162 A.2d 182

147 Conn. 435

Fannie K. HARRISON v. UNION AND NEW HAVEN TRUST COMPANY, Executor (ESTATE of

Charles W. HARRISON).

Supreme Court of Errors of Connecticut.

June 14, 1960.

Ellsworth B. Foote and Richard C. Hannan, New Haven, for appellant (plaintiff).

John H. Weir, New Haven, with whom was William M. Mack, New Haven, for appellee (defendant).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ. KING, Associate Justice.

On December 8, 1916, the plaintiff was granted a divorce from her husband, the defendant's decedent. ¹ In its decree, the court awarded custody of the minor child to the plaintiff, together with alimony and support in the amount of $6,000 of which $2,000 was to be paid March 1, 1917, and $1,000 annually thereafter until the entire sum was paid. It was further provided that the decedent 'pay to the plaintiff from his income the sum of $15 per week during her life, as alimony for the plaintiff and support income the sum of $15 per week during her in 1933 to reduce the weekly payment to for the child.' The decree was modified the terms of the decree except for two weekly instalments immediately prior to his death. These the defendant quite properly allowed to the plaintiff, as in effect a debt, under the rule of cases such as German v. German, 122 Conn. 155, 158, 188 A. 429. See Smith v. Smith, 1 Root 349.

The plaintiff, after the proper presentation of a claim and its disallowance, brought this action for danages or, in the alternative, an order directing the defendant to set up a fund sufficient to assure the continuance of the weekly payments during the plaintiff's life. In other words, the basic claim of the plaintiff is that the award of periodic alimony ran for her entire lifetime, continuing, after the decedent's death, as an obligation of his estate. In a counterclaim, the defendant asked for a decree invalidating and setting aside so much of the original decree, as modified in 1933, 'as purports to obligate this defendant [executor] to pay periodic alimony to the plaintiff.' The court rendered judgment for the defendant on the complaint and the counterclaim, and from that judgment the plaintiff has appealed.

Parenthetically, we point out that it is the better practice to provide a separate allowance for alimony from income, as authorized by § 46-21 of the General Statutes, and for support of each minor child, as authorized by § 46-26, rather than to combine them in a single allowance as was done here. See cases such as Lilley v. Lilley, 125 Conn. 339, 342, 5 A.2d 849. Neither party, however, makes any claim that the allowance, at least subsequent to the modification in 1933, purported to be, in whole or in part, for the support of the child, who necessarily has long since attained her majority. We treat the present controvery, as did the parties, as one involving alimony, only, as distinguished from support of a child. Whether the distinction is important we have no present occasion to inquire. We merely point out that here no question is involved as to the survival, after the death of a father, of an order for periodic payments for the support of his child. See note, 18 A.L.R.2d 1126.

As specifically provided in § 46-21, which differs in no respect material to this case from chapter 190 of the Public Acts of 1911, which was in effect at the time of the rendition of the original decree, '[a]ny order for the payment of alimony from income may, at any time thereafter be set aside or altered by [the superior] court.' Necessarily, the power of modification given by this provision has been construed to be limited to situations where there is proof of a material change in circumstance subsequent to the date of rendition of the original decree. Heard v. Heard, 116 Conn. 632, 637, 166 A. 67; Lilley v. Lilley, supra, 125 Conn. at page 341, 5 A.2d at page 850. For some reason not entirely clear, the defendant made no attempt to obtain relief under this provision, although it could hardly be claimed that the death of the decedent did not constitute a material charge of circumstance, especially as to his income. See Cary v. Cary, 112 Conn. 256, 260, 152 A. 302.

Under the provisions of § 46-21 an award of alimony may take the form of (a) an assignment of a part of the husband's estate, now commonly accomplished by an award of a sum of money, or (b) an award of periodic payments from income, or (c) an award of both types of relief, as in effect was the case here. German v. German, 122 Conn. 155, 161, 188 A. 429. We are not concerned with the $6,000 award, which was obviously not intended to be, nor was it by its terms, an award from income. See note, 39 A.L.R.2d 1406, 1413. That portion of the decree was long ago satisfied. See Cary v. Cary, supra.

The decision of this appeal requires, first of all, a construction of the language of the decree itself, considered as a whole. See Sturtevant v. Sturtevant, 146 Conn. 644, 647, 153 A.2d 828. Only if the decree, properly construed, actually ordered payments of periodic alimony after the decedent's death, might we have to consider whether the court had the power to make such an order under § 46-21. Where, as here, an...