Hatch v. Hatch

• Decision Date: 23 October 1968
• Citation: 157 Conn. 85,249 A.2d 241
• Court: Connecticut Supreme Court
• Parties: Julia M. HATCH v. Thomas E. HATCH.

Page 241

249 A.2d 241

157 Conn. 85

Julia M. HATCH v. Thomas E. HATCH.

Supreme Court of Connecticut.

Oct. 23, 1968.

John J. Sullivan, Greenwich, for appellant (plaintiff).

Milton I. Caplan, New Haven, with whom, on the brief, was Bernard J. Virshup, New Haven, for appellee (defendant).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

RYAN, Justice.

In 1961, the plaintiff instituted an action against the defendant, alleging intolerable cruelty by the defendant and seeking a divorce, alimony, custody and support of the minor children. The plaintiff then amended her complaint, claiming a decree of legal separation pursuant to § 46-29 of the General Statutes instead of a divorce. In his answer, the defendant denied the allegation of intolerable cruelty and filed a counterclaim alleging intolerable cruelty on the part of the plaintiff and claiming a divorce from the plaintiff. The matter was referred to a state referee for a hearing. On May 24, 1963, upon acceptance of the referee's report, the court rendered judgment for the plaintiff, granting her a legal separation from the defendant on the ground of intolerable cruelty. The court entered an order awarding the plaintiff custody and support of the minor child, alimony and counsel fees. On January 18, 1966, the defendant filed a petition for a decree finally dissolving and terminating the marriage under § 46-30 of the General Statutes. The plaintiff answered, admitting the allegations of the petition and setting forth two special defenses. In the first special defense, the plaintiff alleged that the defendant had failed to comply with the court's orders concerning alimony, support and counsel fees. In the second special defense, she pleaded res judicata by virtue of the judgment in the divorce action wherein the issue of intolerable cruelty was decided adversely to the defendant on the complaint and on the counterclaim. The trial court rendered judgment finally dissolving and terminating the marriage, and the plaintiff has appealed to this court.

The finding of the trial court is not subject to any material change and discloses the following facts: At the time of the rendition of the original judgment on May 24, 1963, the defendant was in arrears on payments of pendente lite orders for alimony and support of a minor child in the sum of $2325. The court ordered this amount to be paid as a lump sum, together with support in the amount of $400 a month ($200 for the child and $200 for the wife), plus counsel fees of $2000. The arrearage accrued because the defendant had been unemployed for a period of six months in 1962, during which time he lost $12,000 in earnings. In December, 1962, the defendant was transferred in his job to Chicago, where he lived with his mother until his return to the New York area about April, 1965. While in Chicago he was heavily in debt, in arrears on his payments of alimony and support, and had difficulty with the Internal Revenue Service. During this time, the plaintiff engaged counsel to collect the sum due her. Both parties were represented by counsel. An agreement was entered into between the parties, and the proceedings were terminated. Since that time and particularly since April, 1965, the defendant made alimony and support payments regularly although a few of them were slightly tardy. The defendant was financially unable to pay the arrearages. He did not refuse to make the payments.

On February 25, 1966, when the defendant appeared in court on his petition for a decree finally dissolving and terminating the marriage, he was in arrears on payments of alimony, support and counsel fees in the approximate sum of $4000. At this time, the court had before it a motion of the plaintiff for modification of support and a motion that the defendant be held in contempt for his failure to make payments in accordance with the court's order. Because the defendant was in arrears, the court refused to hear his petition and granted the defendant permission to withdraw it without prejudice. In March, 1966, the defendant paid all arrearages in full. The defendant's petition for a decree finally dissolving and terminating the marriage was never withdrawn, and no other petition was filed. At the hearing on the petition on October 7, 1966, the plaintiff offered no objection, nor did she claim that the defendant's petition had been withdrawn. This claim was made by the plaintiff for the first time in her request for a finding and a draft finding. At the time of the hearing in October, 1966, the defendant was not in arrears on his payments under the court order. Since the legal separation, the parties have not resumed marital relations, nor have they lived together since May, 1960. Neither party has any love for the other, nor has either of them attempted to bring about a reconciliation. There is no possibility of a reconciliation. Since the decree of separation, the defendant has been keeping company with a single woman, but no illegal or immoral relationship has existed between them, and the defendant does not presently contemplate marriage with her. The plaintiff believes that the defendant intends to marry this woman and wants to prevent it.

The trial court reached the following conclusions: (1) The parties have not resumed marital relations since the decree of legal separation was entered. (2) The fact that the defendant was denied a divorce in his counterclaim is not res judicata of the present...