Heard v. Heard

• Decision Date: 09 May 1933
• Citation: 116 Conn. 632,166 A. 67
• Court: Connecticut Supreme Court
• Parties: HEARD v. HEARD.

166 A. 67

116 Conn. 632

HEARD v. HEARD.

Supreme Court of Errors of Connecticut.

May 9, 1933

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

Divorce suit by Mabel H. Heard against Reginald E. Heard. Application by defendant for modification of a judgment of divorce in respect of the amount of alimony to be paid, brought to the superior court and tried to the court. From a judgment for plaintiff dismissing the application, defendant appealed, and plaintiff filed a plea in abatement, and a motion to dismiss the appeal.

No error. Plea in abatement overruled, and motion to dismiss denied.

Clifton F. Weidlich, of New York City, for appellant.

William A. Kelly, of Stamford, for appellee.

AVERY Justice.

The parties to this appeal were married April 19, 1906, and lived together until some time in 1928. No issue was born of the marriage, and in October of that year they separated. December 18, 1928, they entered into an agreement adjusting their financial relations and property rights, wherein, among other things, the defendant undertook to pay his wife $285 a month, and pay the premium to maintain insurance upon his life for her benefit in the amount of $2,500. June 20, 1929 a judgment of divorce in favor of the plaintiff was rendered by the superior court for Fairfield county, awarding to her $285 a month alimony. In September, 1932, the defendant brought an application for modification of the judgment in respect of the amount of alimony to be paid. The application was heard by the court, and on October 31, 1932; denied, and the defendant has appealed.

From the finding, it appears that in August, 1929, shortly after the judgment of divorce had been entered, the defendant remarried. The plaintiff has not done so, and the alimony received by her constitutes the only income and means of support available to her. She resides with her aged mother and a sister in an apartment at Yonkers, N.Y. The defendant resides in the state of New Jersey, and for the past twenty-seven years has been employed by a firm of brokers, having offices in New York City. His net income for the years 1928 to 1931, inclusive, averaged approximately $10,000 per year. At the time of the application for modification of the judgment, his salary had been reduced to $7,000 a year. He had no other real or personal property from which income could be derived, except an agreement with his firm by the terms of which he was entitled to receive one-quarter of one per cent of the net profits. He is fifty-one years of age, in good health, intelligent, highly trained and experienced in the work in which he is engaged. No issue was born of his second marriage. He lives with his present wife in a nine-room house, of which the rental is $125 per month. They employ a servant and maintain an automobile. During the years 1931 and 1932, he took out insurance on his life for the benefit of his present wife, and the annual premium on which is $1,600. In addition to the alimony payable to the plaintiff, amounting to $3,420, his expenses for the year 1932 were $7,538. Included therein are items of: $1,600 for premiums on life insurance in favor of his present wife; $1,500 for rent of nine-room house; $360 for support of his mother; $300 for allowance to present wife; $1,800 for operating expenses of his home; $324 for interest on indebtedness; and certain other items unnecessary to mention.

The court has further found that no evidence was offered at the hearing as to financial responsibility of the defendant's present wife, or as to her requirements or needs for living and household expenses, or as to her ability to support herself or contribute to the support of the household of which she is now a member; nor was any evidence offered which would show the profits received by the defendant from the firm in any of the former years or for the year 1932. The defendant, in his appeal, has asked certain corrections in the finding, but no correction is permissible which would materially affect his position.

The trial court reached the conclusion that, on the facts, the defendant had failed to establish any reason sufficient to justify the court in modifying the judgment. In reaching this conclusion, the court was influenced by the failure of the defendant to show the value of his share in the profits of the firm or the financial position of his present wife, and also his failure to reduce his own living expenses.

The contention of the appellant, in brief, is that because he has married again and his salary has been reduced to $7,000 a year, and the payment of $285 per month alimony requires more than 50 per cent. of his present income, the judgment of the court in refusing to modify the decree is unreasonable as a matter of law. As we have stated, it was not shown what sum the defendant's interest in the profits of the firm would amount to. If we take the view most favorable to the defendant and assume that it would be nothing, still his claim cannot be sustained. Defendant's income at the time the divorce was granted, as appears from the finding, was between $16,000 and $17,000 a year; in 1930 it was approximately $17,000; and in 1931 approximately $15,000. The fact that his income fell, in 1932, to the neighborhood of $7,000 of itself, when standing alone, does not, as a matter of law, entitle him to a modification of the judgment. The regulation of the amount of alimony payable under a decree of divorce rests within the sound discretion of the trial court which will not be interfered with unless it clearly appears that it has been abused. In determining the amount, regard should be had to a number of circumstances. Among these are the amount of the estate of the husband, his income, his age, health, and earning...