Krasnow v. Krasnow

• Citation: 99 A.2d 104,140 Conn. 254
• Parties: KRASNOW v. KRASNOW. Supreme Court of Errors of Connecticut
• Decision Date: 04 August 1953
• Court: Supreme Court of Connecticut

Page 104

99 A.2d 104

140 Conn. 254

KRASNOW v. KRASNOW.

Supreme Court of Errors of Connecticut.

Aug. 4, 1953.

Saul Seidman, Hartford, with whom was Richard Levin, Hartford, for appellant (plaintiff).

Jacob Bresnerkoff, Hartford, with whom was Samuel Freed, Hartford, for appellee (defendant).

Before BROWN, C. J., and BALDWIN, O'SULLIVAN, INGLIS and CORNELL, JJ.

BALDWIN, Associate Justice.

This is an action for divorce in which a judgment had been entered granting the divorce to the plaintiff and awarding custody of their minor son to the defendant. The plaintiff filed two motions to modify the award. The court denied both motions and the plaintiff has appealed. The court, upon the defendant's motion, entered an order for an allowance for counsel fees and disbursements on the plaintiff's appeal. The plaintiff has also appealed the granting of this allowance. He alleges that the court erred in making the original award of custody because it lacked jurisdiction, in holding him in contempt for failing to abide by the award, in making the allowance, in rulings on the admission of evidence and in refusing to correct the finding.

The finding, which is not subject to correction, except in one particular, may be stated as follows: The plaintiff, an American citizen, married the defendant, a citizen of Brazil, in Rio de Janeiro in 1944. After residing there a short time, they came to Washington, D. C., where a son, Richard, was born in 1945. They later moved to Hartford where they lived together until August, 1950, when, with the consent of the plaintiff, the defendant, taking Richard with her, went to Brazil for a visit and became domiciled there. In November, 1950, while the defendant and Richard were still in Brazil, the plaintiff wrote her a letter, terminating in practical effect their marriage relationship and suggesting that she stay in Brazil. The plaintiff attempted to have the defendant send Richard back to Hartford but did not ask her to return. In January, 1951, the plaintiff brought an action, returnable to the Superior Court in Hartford County, claiming a divorce and the custody of Richard. Service was made upon the defendant by registered mail. In May, 1951, the defendant appeared in, and submitted to the jurisdiction of, the court.

The parties entered into a stipulation which provided that the defendant should have the custody of their child, with the right in the plaintiff to have Richard visit him at his residence each year during the school vacation. It further stipulated that the plaintiff should pay to the defendant $3100 for the support of their son, $1000 to be paid forthwith and the balance of $2100 when he made his first visit to the plaintiff, with a further sum of $17 a week during his minority. A judgment for a divorce on the ground of intolerable cruelty was entered in favor of the plaintiff on May 25, 1951, and the stipulation concerning custody and support was incorporated in the judgment file. Before the plaintiff signed the stipulation, his counsel explained it to him and he understood the meaning and consequences of it. The trial court, before entering judgment, inquired whether the agreement concerning custody was for the best interest of the child and was assured by counsel that the parties had agreed that it was.

The plaintiff remarried in June, 1951, that being his third marriage, while the defendant has remained unmarried. In December, 1951, the defendant sent Richard from Brazil to visit his father. The boy was to return on March 8, 1952, but the plaintiff decided not to send him back. On March 13, the defendant caused a citation for contempt to be issued against the plaintiff. On March 14, the plaintiff filed a motion for a modification of the judgment pertaining to custody. Richard continued to reside with the plaintiff. While in Brazil, Richard lived with his mother in Rio de Janeiro, in the same apartment which she and the plaintiff had occupied after their marriage. The plaintiff was familiar with what the living conditions and surroundings of the child would be when he entered into the stipulation concerning his custody. Richard attends a private school in Rio de Janeiro at a cost of $170 a month, which is in excess of the support paid by the plaintiff. The defendant has been required to work to support her son. There has been no change in the circumstances of either of the parties warranting a modification of the order of custody. The defendant is without funds to pay counsel on the appeal and the plaintiff is financially able to provide therefor.

The trial court, on April 24, 1952, denied the plaintiff's motion for a modification of the order of custody and held him in contempt for his failure to comply with it. On June 4, 1952, the defendant filed a motion to modify the judgment as to custody, in which she recited that Richard was living with her in Brazil. She asked that the child be permitted to remain with her, with the right in the plaintiff to visit him there. She also moved for an allowance of counsel fees and disbursements on the plaintiff's appeal. The court allowed $500 counsel fees and actual disbursements. On June 20, the plaintiff filed a motion to reopen and modify the judgment entered on April 24, which the court denied.

The plaintiff's first contention is that the court was without jurisdiction to make any award of custody because the child was not a resident of, or domiciled in, this state at the time the divorce action was begun or the judgment entered. The statute provides that on 'any complaint for a divorce, the court may, at any time, make any proper order' concerning the custody of minor children. General Statutes § 7337. Jurisdiction to award custody is acquired by virtue of the original action and is incidental to it. Dunham v. Dunham, 97 Conn. 440, 444, 117 A. 504. The defendant having submitted to the jurisdiction of the court, the whole matter of the marital status of the parties and the effect of any change therein upon minor children was before the court. Fagan v. Fagan, 131 Conn. 688, 690, 42 A.2d 41; Maloney v. Maloney, 67 Cal.App.2d 278, 280, 154 P.2d 426; Stephens v. Stephens, 53 Idaho 427, 437, 24 P.2d 52; Talbot v. Talbot, 120 Mont. 167, 173, 181 P.2d 148; Wilson v. Wilson, 66 Nev. 405, 212 P.2d 1066, 1072; Anderson v. Anderson, 74 W.Va. 124, 126, 81 S.E. 706. Boardman v. Boardman, 135 Conn. 124, 62 A.2d 521, 13 A.L.R.2d 295, on which the plaintiff mainly relies, is not in point. In that case the defendant, who was residing in Connecticut with her child, was not served in New York, where the action was brought, nor did she submit to its jurisdiction by entering an appearance. Furthermore, one such as this plaintiff, who has invoked the jurisdiction of the court in order to secure a divorce and the custody of a minor child, cannot thereafter assail it. Morrill v. Morrill, 83 Conn. 479, 489, 77 A. 1; Blair v. Blair, 48 Ariz. 501, 507, 62 P.2d 1321; 3 Freeman, Judgments (5th Ed.) § 1438; 27 C.J.S., Divorce, § 171, p. 815. The trial court's denial of the plaintiff's motions to modify the award contained in the original judgment and to erase the citation for contempt based thereon, upon the ground of lack of jurisdiction, was correct.

The plaintiff's second contention is that the court, having jurisdiction of his motion for a modification of the award, in passing upon it should have determined what was for the best interest of the child, irrespective of the stipulation concerning custody which was incorporated in the original decree. He contends that the court should have received the evidence which he offered bearing upon this issue. There is no question that the court had jurisdiction to modify the award of custody. General Statutes §§ 7337, 7339; Fagan v. Fagan, 131 Conn. 688, 690, 42 A.2d 41; Morrill v. Morrill, supra, 83 Conn. 484, 77 A. 1. No agreement of the parties could preclude the court from making a modification where the best interest of the child required it. Lilley v. Lilley, 125 Conn. 339, 343, 5 A.2d 849; Hendricks v. Hendricks, 69 Idaho 341, 346, 206 P.2d 523, 9 A.L.R.2d 617; Kane v. Kane, 314 Mich. 529, 533, 22 N.E.2d 773; Wright v. Stahl, S.D., 39 N.W.2d 875, 876; 27 C.J.S., Divorce, § 311, p. 1177. In matters of custody, the paramount consideration is always the welfare of the child. Kelsey v. Green, 69 Conn. 291, 298, 37 A. 679, 38 L.R.A. 471; Bailey v. Mars, 138 Conn. 593, 600, 87 A.2d 388. However, the rulings on evidence which the plaintiff challenges are not properly presented by the finding. Practice Book § 405; Attruia v. Attruia, 140 Conn. 73, 79, 98 A.2d 532. That aside, the plaintiff, claiming that he was acting for the welfare of his son, offered evidence concerning circumstances and conditions bearing upon the fitness of the defendant to have custody which antedated the judgment and the stipulation. What the plaintiff was really asking the court to do was to reconsider a matter already disposed of and concerning which no new conditions had since occurred. Lilley v. Lilley, 125 Conn. 339, 342, 5 A.2d 849; Maupin v. Maupin, 339 Ill.App. 484, 493, 90 N.E.2d 234; Scott v. Scott, 227 Ind. 396, 404, 86 N.E.2d 533; Keezer, Marriage & Divorce (3d Ed.) p. 764. The court had thoroughly tried the question of the boy's custody. We cannot say that it abused its discretion in refusing to allow the plaintiff to show that the representations which he made, before the judgment was entered, concerning the fitness of the defendant to have custody were untrue.

The plaintiff claims that the court erred in making an allowance to the defendant for counsel fees and disbursements upon his appeal. While an action for divorce is a creature of statute, it is essentially equitable in its nature. German v. German, 122 Conn. 155, 161, 188 A. 429; 125 Conn. 84, 86, 3 A.2d 849. 'The basis of the allowance [to a wife for expenses of divorce litigation] is that she should not be deprived of her rights because she...