Hiss v. Hiss.

• Decision Date: 01 February 1949
• Court: Connecticut Supreme Court
• Parties: HISS v. HISS.

135 Conn. 333

64 A.2d 173

HISS

v.HISS.

Supreme Court of Errors of Connecticut.

Feb. 1, 1949.

Appeal from Superior Court, Fairfield County; Roberts, Judge.

Action in equity by Marjorie B. Hiss against her husband, Philip H. Hiss, for support of plaintiff and the parties' minor children. From an order for plaintiff's support pendente lite, defendant appeals. On plaintiff's motion to erase the appeal from the docket, and defendant's motion for an order that the clerk prepare a judgment file.

Motions denied.

J. Kenneth Bradley, of Bridgeport, and William H. Makepeace, of New Canaan, for plaintiff.

Max Spelke and Frank Rich, both of Stamford, for defendant.

Before MALTBIE, C. J., and BROWN, JENNINGS and ELLS, JJ.

MALTBIE, Chief Justice.

In this action in equity brought by a wife separated from her husband for her support and that of the minor children of the parties, the plaintiff made a motion that the court order that she be furnished temporary support during the pendency of the action. The trial court granted the motion and ordered the defendant to pay the plaintiff $600 a month. The defendant filed an appeal from the order. The plaintiff now moves to have the appeal erased from the docket. The question is: Was the order such a final judgment as to be the basis of an appeal?

We have never been called upon to consider that question. The situtation is analogous to that which obtains in divorce actions. In Morgan v. Morgan, 103 Conn. 189, 197, 130 A. 254, we sustained the trial court in making an additional allowance to defend, but that ruling was a part of the judgment finally dismissing the complaint and cross-complaint in the action; 289 Rec. & Briefs 852; and it was properly assigned as error in the appeal from that judgment. In Valluzzo v. Valluzzo, 103 Conn. 265, at page 266, 130 A. 126, the court, after judgment upon the main issue was rendered, denied motions for an allowance to prosecute an appeal and for temporary alimony, and we said that the denial of the motions would not constitute such final judgments as would be the basis of an appeal, pointing out that the ruling of the court, though made after the judgment, might be brought within the scope of an appeal from it. As appears from Morgan v. Morgan, supra, the court may, in the judgment finally disposing of the case, make an allowance to the wife for the expenses of the litigation, and consequently a denial of a motion for an allowance before trial may properly be regarded as not finally disposing of the question; and we have no occasion now to consider whether a denial of alimony pendente lite before trial would present a like situation. In Steinmann v. Steinmann, 121 Conn. 498, 504, 186 A. 501, A-91 Rec. & Briefs, back of page 265, Schilcher v. Schilcher, 124 Conn. 445, 448, 200 A. 351, A-121 Rec. § Briefs 507, and Dochelli v. Dochelli, 125 Conn. 465, 3 A.2d 666, A-128 Rec. & Briefs, back of page 68, after judgment was rendered motions were made for allowances for the expenses of appeal, alimony pendente lite or support of a minor child, and additional appeals from the rulings of the court on the motions were taken and considered by us; but in none of these cases were we called upon to consider the question whether such appeals were proper. In LaBella v. LaBella, 134 Conn. 312, 319, 57 A.2d 627, A-239 Rec. & Briefs, back of p. 303, similar motions were made after judgment upon the main issue, and the rulings of the trial court on them were included in the assignments of error. In Bielan v. Bielan, 135 Conn. 163, 165, 62 A.2d 664, in a similar situation the plaintiff wife amended her appeal from the judgment finally disposing of the case to include the denial of the motions, and we pointed out that this was unnecessary and that all she needed to have done was to include the ruling in her assignments of error from that judgment. Where such motions are made after the judgment upon the main issue has been rendered, rulings upon them fall within the scope of the appeal from that judgment; simplicity and expedition justifies that procedure whether or not such rulings would themselves constitute final judgments which would be the basis of an appeal; and this method of bringing them before us for consideration is not of significance upon the issue now before us.

We have said that the test for determining whether a judgment is final ‘lies, not in the nature of the judgment, but in its effect as concluding the rights of some or all of the parties. If such rights are concluded, so that further proceedings after the entry of the order or decree of the court cannot affect them, then the judgment is a final judgment’. Banca Commerciale Italiana Trust Co. v. Westchester Artistic Works, Inc., 108 Conn. 304, 307, 142 A. 838, 839; Felletter v. Thompson, 133 Conn. 277, 278, 50 A.2d 81. Apt illustrations of the application of the test are orders made in receivership proceedings, which, while not determinative of the action as a whole, conclude the rights of parties so that further proceedings in the case cannot affect them. Guarantee Trust & Safe Deposit Co. v. Philadelphia, R & N. E. R. Co., 69 Conn. 709, 714, 38 A. 792, 38 A.L.R. 804; Barber v. International Co., 74 Conn. 652, 657, 51 A. 857, 92 Am.St.Rep. 246; and cf. More v. Western Connecticut Title & Mortgage Co., 129 Conn. 464, 467, 29 A.2d 450. The purpose of an order that a husband make payments for the support of his wife pendente lite is to afford her a means of livelihood while she is living apart from him pending the determination of the question whether she has the right to separate maintenance; Harding v. Harding, 144 Ill. 588, 595, 32 N.E. 206, 21 L.R.A. 310; Westerfield v. Westerfield, 36 N.J.Eq. 195, 197; Collins v Collins, 80 N.Y. 1, 12; as expressed in Johnson v. Johnson, Tenn.Ch.App., 49 S.W. 305, 307, such payments are ‘a fund for the current support of the wife.’ Even should judgment ultimately be rendered against her, the husband would have no right to be reimbursed. See Lishey v. Lishey, 74 Tenn. 418, 426. Our conclusion is that the order for the payment of support pendente lite in this case was a final judgment within the appeal statute. The power of the court to modify an order for the payment of temporary alimony would not destroy the right of appeal any more than does the power of a court to open a judgment during the term prevent an appeal from it, unless such action is in fact taken. Clover Farms, Inc. v. Kielwasser, 134 Conn. 622, 59 A.2d 550.

We conclude that the order for temporary support in this case was a final judgment from which an appeal lies. This conclusion and the reasons we have given have direct support in the following cases; Hecht v. Hecht, 28 Ark. 92, 93; Sharon v. Sharon, 67 Cal. 185, 195, 7 P. 456, 635, 8 P. 709; Daniels v. Daniels, 9 Colo. 133, 139, 10 P. 657; Lesh v. Lesh, 21 App.D.C. 475, 484; Blake v. Blake, 80 Ill....