Lilley v. Lilley

• Citation: 125 Conn. 339,5 A.2d 849
• Court: Connecticut Supreme Court
• Decision Date: 05 April 1939
• Parties: LILLEY v. LILLEY.

5 A.2d 849

125 Conn. 339

LILLEY v. LILLEY.

Supreme Court of Errors of Connecticut.

April 5, 1939

Appeal from Superior Court, New Haven County; Frank P. McEvoy Judge.

Action for divorce by Evelyn Dutton Lilley against Theodore Lilley. A divorce decree was granted and, from an order modifying the provisions of the decree concerning payments for the support of the parties' children, plaintiff appeals.

No error.

A provision in divorce decree that after husband's death wife should be paid $400 per month until her death or remarriage was distinct and separable from provisions for payment of monthly alimony of $600 subject to be reduced when any child should marry, die, or become self-supporting, and hence provision for alimony and allowance for support of children was subject to modification. Gen.St.1930, § 5182.

J Gregory Lynch, of Waterbury, for appellant.

Terrence F. Carmody, of Waterbury, for appellee.

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

HINMAN, Judge.

The plaintiff brought an action for divorce against the defendant in May, 1923. During its pendency the parties, through their attorneys, entered into a written stipulation requesting that if a judgment be rendered in favor of the plaintiff certain specified provisions concerning alimony and custody of the three minor daughters be incorporated therein. A decree was eventually granted and provisions substantially according with the stipulation were embodied therein. These included that the plaintiff should have the care, custody, and education of the children, subject to certain rights in and duties of the defendant; that the defendant, in addition to a specified lump sum, payable in instalments to the plaintiff and occupancy by her of the family homestead in Waterbury should pay her monthly alimony of $600, except that for each child that marries or dies $100 per month should be deducted thereafter and when any of the children become self-supporting the amount of her earnings for each month up to $100 should be deducted, that if the plaintiff remarries a reduction of $300 per month is to be made; and that after the decease of the defendant the plaintiff be paid $400 per month until her decease or remarriage.

The oldest daughter is now twenty-four years old and married; the second one is twenty-one but unmarried, and is unemployed; the youngest is still a minor and in school. The defendant has made the monthly payments, which by the terms of the judgment were reduced by $100 upon the marriage of the oldest daughter. In 1938 the defendant filed a motion that the judgment be amended, the cause relied upon alleged by amendment to the motion being a desire ‘ to obtain and exercise a more effective control and direction’ of the two younger daughters. After hearing the trial court ordered an amendment of the judgment whereby as each of these children becomes twenty-one years of age a reduction of $100 per month from the plaintiff's alimony allowance should become effective, also that the defendant pay the plaintiff $25 per month for wearing apparel for the youngest daughter during her minority. From this order the plaintiff appeals.

Numerous corrections of the finding are sought, but it is sufficient for present purposes to say that, notwithstanding such changes therein as may properly be made, the facts warrant the conclusions stating that it is for the best interests of the two single daughters that each of them obtain remunerative employment as soon as reasonably possible after coming of age or completing her education, and that the defendant have and exercise more control over them than he has been able to under present conditions; also that the provision in the divorce decree for reduction of plaintiff's monthly alimony by the amount of earnings up to $100 per month has deterred the older daughter from making bona fide effort to obtain employment and is likely to similarly affect the attitude of the other. It is also found that the defendant made in good faith, and is able and intends to carry out, an offer that if the requested reduction be granted he will take full responsibility for the care, maintenance and education of the two daughters after they become of age, will not prevent them from living with the plaintiff and if they do will give each an allowance from which they may pay board.

Section 5182 of the General Statutes provides that ‘ any order for the payment of alimony from income may, at any time thereafter, be set aside or altered by [the] court.’ The plaintiff claims, however, that modification in amount of alimony may be made only upon proof of a substantial change in the financial situation of one or both parties, or of misconduct on the part of the plaintiff, neither of which is relied on here, and that therefore the above mentioned conclusions are insufficient to support the order...