Lasprogato v. Lasprogato

• Citation: 18 A.2d 353,127 Conn. 510
• Court: Supreme Court of Connecticut
• Decision Date: 07 February 1941
• Parties: LASPROGATO v. LASPROGATO.

18 A.2d 353

127 Conn. 510

LASPROGATO v. LASPROGATO.

Supreme Court of Errors of Connecticut.

February 7, 1941

Appeal from Superior Court, Fairfield County; Edward J. Daly, Judge.

Action by Mary Louise Lasprogato against Joseph Lasprogato for divorce, wherein defendant filed a cross-complaint. From an order denying, defendant's motion to modify decree of divorce by vacating the provision for alimony, the defendant appeals.

Error and cause remanded.

John Keogh, Jr., and Nehemiah Candee, both of South Norwalk, for appellant.

Samuel R. Sallick and William F. Tammany, both of South Norwalk, for appellee.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

AVERY Judge.

The finding of the court discloses these facts: The parties in this case were husband and wife. On November 17, 1936, the plaintiff commenced an action against the defendant for divorce, alleging intolerable cruetly and adultery. In his answer, the defendant denied the allegations of the complaint and in a cross-complaint alleged that the plaintiff had been guilty of intolerable cruelty. On the day of the trial, the parties and their attorneys met and conferred with reference to a settlement of their property rights and the matter of a portion of the defendant's estate being assigned to the plaintiff in the event that it should be adjudged that the plaintiff be divorced from the defendant. The plaintiff demanded a stated sum of money in addition to other property. The defendant agreed to the amount of money and other property demanded by the plaintiff, but stated that it was impossible for him to pay the money in one payment and agreed to pay it over a period of six years in weekly payments of $25 each. At this conference, the plaintiff agreed that the payment of the money should be made over such a period, and the parties executed a written agreement set forth in the footnote.^[1] On April 12, 1938, the court, having heard the parties, found the issues for the plaintiff and entered judgment of divorce, the judgment file embodying the provisions of the written agreement between the parties although the agreement itself was not incorporated or referred to in it. Among other provisions of the judgment was one requiring the defendant to pay to the plaintiff, by way of alimony, $25 per week for a period of six years. The defendant made the weekly payments up to November 10, 1938, since which time he has made no weekly payments and has also neglected to pay one-half of one year's tax on the real estate in accordance with the provisions of the ‘ Stipulation’ between the parties and the judgment file. On November 12, 1938, the plaintiff married John Scarpone and they are living together as husband and wife. Thereafter, on July 11, 1939, the defendant moved the court that the judgment of divorce be modified by revoking the order requiring the defendant to pay the plaintiff $25 per week, and that such order of revocation be dated as of the date of the plaintiff's remarriage. The defendant's motion to modify the judgment was denied by the court and he has appealed.

While under the terms of the decree the defendant was in contempt when his motion was made, since the motion sought relief as of the date of the plaintiff's remarriage, was filed within a reasonable time thereafter, and involved a question upon which the law of this jurisdiction was uncertain, the court was warranted in entertaining it.

The trial court took the view that the document signed by the parties at the time of the divorce trial, although called a stipulation, was in fact a contract and that this agreement having been approved by the court and its provisions embodied in the judgment, it was binding on the parties and not subject to modification by the court without the consent of the parties. It is unnecessary for us to determine on this appeal whether the document signed by the parties was in fact a contract or, as its name seems to suggest, a mere stipulation intended by the parties as a suggestion to the court as to the provisions which should be inserted in the judgment file. In Maisch v. Maisch, 87 Conn. 377, 87 A. 729, we held that contracts between husband and wife made in settlement of their property affairs, in view of divorce proceedings instituted or determined upon, were not necessarily contrary to public policy and void, unless concealed from the court. ‘ If submitted to and approved by the court with full opportunity for scrutiny before the decree, they are unobjectionable; but, if concealed from the court, they are contrary to public policy and will not be enforced unless in extreme cases where the refusal to do so would assist in the perpetration of an intentional fraud.’ 87 Conn. page 383, 87 A. page 730.Weil v. Poulsen, 121 Conn. 281, 286, 184 A. 580; Mills v. Mills, 119 Conn. 612, 620, 179 A. 5. Such contracts are enforced by actions brought upon the contracts themselves and the remedies are no other or different than the remedies provided by law for the breach of any other contract. Where the payment of alimony is ordered in a judgment of divorce, if the terms of the judgment are not complied with the offended party has a remedy by contempt.

General Statutes, § 5182, provides: ‘ Any order for the payment of alimony from income may, at any time thereafter, be set aside or altered by such court.’ The great weight of authority seems to uphold the principle that where...