Hendrix v. Hendrix
| Decision Date | 01 December 1970 |
| Citation | 160 Conn. 98,273 A.2d 890 |
| Court | Connecticut Supreme Court |
| Parties | Louise R. HENDRIX et al. v. Clifford R. HENDRIX, Jr. |
Peter M. Ryan, Darien, with whom, on the brief, was Paul D. Cullen, Darien, for the appellant (defendant).
P. Hurley Bogardus, Jr., Stamford, for the appellees (plaintiffs).
Before ALCORN, C.J., and HOUSE, COTTER, THIM and RYAN, JJ.
This action was brought by the named plaintiff individually and on behalf of her two daughters, all residents of the state of Pennsylvania, against the defendant, a resident of Connecticut, seeking a modification of orders of support in a California divorce decree, past support, counsel fees and other equitable relief. The action was returnable on the first Tuesday of November, 1966. In addition to admissions and denials of the allegations of the complaint, the defendant pleaded both payment and estoppel as defenses to the claim for past support and, by way of counterclaim, sought custody of the children on the ground that the named plaintiff was an unfit person. The court found the issues for the plaintiffs; increased, effective from the return day of the action, the support ordered in the California decree; and awarded counsel fees to the plaintiffs' attorneys. The defendant has appealed from that judgment.
The facts as found by the trial court are not subject to correction in any material respect. The named plaintiff, hereinafter called the plaintiff, married the defendant in Bryn Mawr, Pennsylvania, in 1951. There are two daughters of the marriage, born, respectively, in 1952 and 1955. While domiciled in California, the plaintiff and the defendant, in contemplation of a pending divorce action made a written agreement dated August 15, 1956. The agreement recited, in substance, that their purpose was to settle permanently their property rights and their rights and obligations concerning the support of the plaintiff and their children and to effect a full and complete settlement 'for all time as between them' of all claims and demands against each other. The defendant agreed to pay the plaintiff $750 a month for a period of ten years and one month unless she sooner died or remarried; and to pay her $125 a month for the support of each of the daughters so long as each resided with the plaintiff and until each reached the age of twenty-one, died or was married. After provisions as to custody of the children, they agreed that if a divorce should be granted neither party would ask or accept any financial provision varying from the amounts agreed to and that the court might order the agreed payments and retain jurisdiction to enforce them. The agreement recited that it should be construed according to California law and it contained mutual releases of all liabilities and obligations, past and future, other than those expressed therein.
At the time of the agreement the defendant's adjusted gross income was $53,946. The two daughters were, respectively, five and two years old. On August 27, 1956, a California court granted the plaintiff an interlocutory judgment of divorce from the defendant, and, on October 4, 1957, the judgment was made final. The final judgment incorporated the agreement of August 15, 1956, in full and ordered the parties 'to fulfill and perform all of the terms and obligations of said agreement, the same being merged into this judgment'.
The plaintiff has not remarried and now lives with her two daughters in a home which she owns in Villanova, Pennsylvania. The defendant has remarried and has two minor children, issue of that marriage. At the time the present case was tried, the two daughters of the parties were fifteen and twelve years old, respectively. Since the date of the divorce, there has been a substantial change in their financial, social, medical, recreational, educational and cultural needs as well as a general increase in the cost of living. During the same period, the plaintiff's financial position has worsened because the alimony payments ordered by the California judgment terminated in September, 1966. On the other hand, the defendant's adjusted gross income had increased to $74,713 in 1966. The judgment from which the present appeal is taken was rendered on February 9, 1968, and at the time of the trial the defendant's income was approximately $80,000 per year. The plaintiff is able to support herself with earnings from her employment supplemented by a variable monthly allowance from her mother.
The plaintiff made no serious demand on the defendant for any increase for support for their two daughters until 1966. After negotiations which began in February, 1966, the present action was started, and, in January, 1967, the defendant voluntarily agreed to pay all medical, dental and educational bills incurred for the benefit of the two daughters in 1967 as well as the cost of sending one girl to camp in the summer of 1967, and these bills have been paid by him. Both of the girls have attended private school and, during the years 1965, 1966 and 1967, the defendant paid various amounts for their education, medical attention, vacations clothing, summer camps, amusements and the cost of trips to visit him in California. At the time of the trial one daughter was enrolled in a private school at a cost of over $3700 for the academic year. The other daughter was enrolled in a private school at which the tuition was $1125. The trial court has found that the plaintiff 'has done an excellent job of raising' the girls, who have made a satisfactory adjustment in their school and home environment, and it is to their best interest that they continue to live in their present home. Since September, 1966, the plaintiff has been unable to meet the expense of supporting her daughters in this home, as submitted to and found by the court, with the moneys provided by the 1957 California support order. She was in debt at the time of trial in the amount of $25,842.71.
The trial court found that between August, 1966, and January 2, 1968, the plaintiff's attorney had devoted at least 400 hours to legal services on behalf of the two daughters, seeking a modification of the California support order, and that he could reasonably be expected to devote an additional fifty to seventy-five hours before the case ended. The court found it necessary to award attorney's fees for those services because neither the plaintiff nor the daughters are able to pay them.
The court concluded that the plaintiff is not entitled to reimbursement for expenses incurred for the support of the children prior to the commencement of the action in excess of the amounts paid by the defendant pursuant to the California judgment; that when unusual expenses had arisen, the defendant had contributed toward them as requested; that since the rendition of the California judgment there has been a substantial change of circumstances sufficient to justify modification of the provision for support of the two daughters; that the defendant's financial income and net worth have increased substantially; that the financial situation of the plaintiff has worsened; that there has been a general increase in the cost of living; and that the needs of the two daughters have greatly increased as they have grown older. The court further concluded that the defendant is a man of considerable wealth, well able to meet the reasonable needs of the daughters, and that he is in fact willing to pay all expenses directly related to them but he objects to paying any expense related to maintaining and supporting them in their present home. The court concluded, however, that it would be detrimental to the girls to require a change in their home environment and that it is reasonable to require the defendant to pay an amount adequate to support them in their present home and to pay a reasonable fee to their attorney. Consequently, the court rendered judgment that the defendant pay the plaintiff $850 per month for the support of both daughters effective from the return day of this action and that he pay an attorney's fee in the amount of $8000. The judgment further allowed the defendant a credit, pro rata, for all amounts paid by him in satisfaction of the obligations imposed by the judgment since the return day.
In his appeal from the judgment the defendant's principal claim is that the court erred in rendering a judgment for the support of his daughters effective from the return day of the action rather than from the date of the judgment.
He also assigns error in the award of counsel fees but his claim with respect to this is that the evidence failed to support the court's determination of the amount of time his daughters' attorney had devoted to their aspect of the case as distinguished from what the plaintiff sought to recover individually. This claim is without merit.
The remaining assignments of error relate to the court's exercise of its discretion in allowing an amendment to the plaintiff's complaint during the trial and in allowing testimony concerning the tuition rate charged by a school attended by one of the girls during the 1966-67 school year. The objection to the evidence was that 'that element of damage isn't included in the Complaint'. Thereafter, the court allowed an amendment to the complaint to claim past support for the daughters from and after October 13, 1966. The court's exercise of discretion in both instances requires no discussion because the court denied the plaintiff's claim for reimbursement of past expenditures for the support of the daughters.
We return then to the question whether the court could properly increase the...
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