Howarth v. Northcott

• Decision Date: 04 March 1965
• Citation: 152 Conn. 460,208 A.2d 540
• Parties: , 17 A.L.R.3d 758 Phyllis E. HOWARTH v. Thomas G. NORTHCOTT. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 540

208 A.2d 540

152 Conn. 460, 17 A.L.R.3d 758

Phyllis E. HOWARTH v. Thomas G. NORTHCOTT.

Supreme Court of Errors of Connecticut.

March 4, 1965.

C. Driscoll Grimes, Greenwich, for appellant (defendant).

E. Gaynor Brennan, Sr., Stamford, for appellee (plaintiff).

Before KING. C. J., and MURPHY, ALCORN, HOUSE and SHAPIRO, JJ.

ALCORN, Associate Justice.

In December, 1960, the plaintiff applied for a writ of habeas corpus to determine the custody of her two minor children, who, she alleged, were then being unlawfully held by the defendant, their father, the plaintiff's divorced husband. The writ of habeas corpus has long been used and approved to test the right to custody of a minor child. Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504. Indeed, it is the only procedure, other than actions for divorce or legal separation, by which the Superior Court has original jurisdiction over custody of minor children. Adamsen v. Adamsen, 151 Conn. 172, 178, 195 A.2d 418. No order for support of the children was sought incident to the custody. Following a hearing, the court rendered judgment on January 16, 1961, awarding custody of one of the children to the plaintiff and the custody of the other child to the defendant. The judgment also ordered the defendant to pay $200 per month for the support of the child whose custody was awarded to the plaintiff. No appeal was taken from that judgment. In 1963, on the defendant's motion, the order of support was modified. In February, 1964, the defendant moved for modification of the judgment, alleging a change of circumstances and that the support order of 1961 was void for lack of jurisdiction. The specific relief sought was visitation rights and the reduction or elimination of the support order. Following a hearing on the motion, the court filed a memorandum of decision in which it concluded that the court which, in 1961, had rendered the order for support had jurisdiction to do so. None of the prayers for relief sought by the motion were adjudicated, however, and no formal judgment was rendered. This appeal is 'from the judgment rendered therein on March 10, 1964.' Assigned as error is the conclusion 'that the Superior Court had jurisdiction to enter an order for support of the minor child of the parties in the habeas corpus proceeding before it'. In his brief, the defendant states that the appeal is taken from the memorandum of decision. That, actually, is what the proceeding amounts to if we confine ourselves to the printed record.

The right of appeal is purely statutory and is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met. Kennedy v. Walker, 135 Conn. 262, 266, 63 A.2d 589. The appeal lies only from a final judgment. General Statutes § 52-263; Levay v. Levay, 137 Conn. 92, 95, 75 A.2d 400. The test of a final judgment lies, not in the nature of the ruling, but in its effect in concluding the rights of the party appealing; if his rights are concluded so that further proceedings after the ruling cannot affect them, there is a final judgment. State v. Fahey, 146 Conn. 55, 57, 147 A.2d 476, 75 A.L.R.2d 1002; Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173. While a memorandum of decision cannot be considered a record judgment, a formal judgment file is not essential for an appeal if, in fact, the court's ruling constitutes a final adjudication of the rights of a party. Harris v. First National Bank & Trust Co., 139 Conn. 749, 752, 97 A.2d 260; Hiss v. Hiss, supra, 135 Conn. 338, 64 A.2d 173.

On the printed record, the action of the trial court from which the appeal is taken did not specifically affirm, revoke or modify the support order which had been rendered in 1961. Because of the fundamental importance of a jurisdictional question and because the plaintiff does not contest the validity of the appeal, we judicially notice the Superior Court file for further enlightenment. Hirsch v. Braceland, 144 Conn. 464, 469, 133 A.2d 898. Therein we find a docket entry reciting that the motion for modification of the judgment was 'denied as per memo filed'. The only meaning to be ascribed to that docket entry is that the court, in 1964, refused to revoke the order of support because the court, in 1961, had jurisdiction to make it. There was no determination of the request for visitation rights or for modification or termination of the support order on the merits. The effect of the decision is that, if and until the original judgment could be revoked or modified because of a change of circumstances, the defendant is required to make payments for the support of the child whose custody was awarded to the plaintiff. We conclude that the denial of the modification motion on the jurisdictional ground stated was a final judgment within the appeal statute. Hiss v. Hiss, supra, 135 Conn. 336, 64 A.2d 173; Hein v. Hein, 127 Conn. 503, 504, 18 A.2d 374.

We turn then to the question of the correctness of the court's ruling. The question is: Did the court, in the habeas corpus proceeding, have jurisdiction to render an order of support? We have never been asked to rule on the question. Courts in other jurisdictions take opposing views. Cases such as Buchanan v. Buchanan, 170 Va. 458, 197 S.E. 426, 116 A.L.R. 688 and Pugh v. Pugh, 133 W.Va. 501, 56 S.E.2d 901, 15 A.L.R.2d 424 hold that, in habeas corpus proceedings to determine the custody of a child, there is no jurisdiction to award support for the child principally because the speedy remedy of habeas corpus should not be delayed by the injection of a collateral issue and because statutes authorizing the use of the writ do not provide for support orders. See also note, 116 A.L.R. 699. A minority of the courts take the view that a support order in such a proceeding is proper, reasoning that, since a habeas corpus proceeding for the custody of a child is, by its nature, an equitable proceeding, the principle that equity, having assumed jurisdiction, will do complete justice applies. See cases such as Bartlett v. Bartlett, 175 Or. 215, 152 P.2d 402, and Waller v. Waller, 220 Ark. 19, 245 S.W.2d 814.

We are in accord with the latter view. The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common-law writ, or by statute. See General Statutes § 52-466; Wojculewicz v. Cummings, 143 Conn. 624, 627, 124 A.2d 886. The primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child. Baram v. Schwartz, 151 Conn. 315, 318, 197 A.2d 334; Adamsen v. Adamsen, 151 Conn. 172, 178, 195 A.2d 418; Scott v. Furrow, 141 Conn. 113, 120, 104 A.2d 224. The decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate. Mullins...