Pezas v. Pezas
| Decision Date | 12 May 1964 |
| Citation | 151 Conn. 611,201 A.2d 192 |
| Court | Connecticut Supreme Court |
| Parties | Alice PEZAS et al. v. Igor A. PEZAS. Supreme Court of Errors of Connecticut |
Daniel B. Badger, Greenwich, with whom was Henry W. Pascarella, Greenwich, for appellant (intervening creditor).
John J. Sullivan, Greenwich, for appellees (plaintiffs).
Before KING, C. J., MURPHY and ALCORN, JJ., and HOUSE and BOGDANSKI, Acting Justices.
This was an action instituted in November, 1959, against the defendant husband, hereinafter referred to as the defendant, by the plaintiff wife on her own behalf and, through her as next friend, by the three minor children, issue of the marriage, who are also plaintiffs, seeking an equitable order for future support, under the rule of cases such as Artman v. Artman, 111 Conn. 124, 129 149 A. 246, Smith v. Smith, 114 Conn. 575, 580, 159 A. 489, and Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 681, 116 A.2d 906. See note, 141 A.L.R. 399, 403. A first count seeking reimbursement for past due support resulted in a judgment for the defendant, under the rule of cases such as Edson v. Edson, 138 Conn. 701, 704, 88 A.2d 371, and is not involved in this appeal.
In this action an attachment was made of the defendant's undivided one-half interest in the equity of redemption in the residence of the named parties, in Greenwich. The property was owned by the plaintiff wife and the defendant jointly, with a right of survivorship, and was unencumbered except for a first mortgage of $12,000. The entire equity of redemption is of the approximate value of $75,000, leaving the value of the interest of each joint owner at about $37,500.
About an hour after the plaintiffs' attachment had been placed on the defendant's interest in the real estate, a second attachment was placed on it by American Union Transport, Inc., hereinafter referred to as Transport, in an action on an obligation of the defendant, as a guarantor, in an amount in excess of $400,000. In this latter suit, Transport recovered judgment in the amount of $405,500 and duly placed a judgment lien in that amount on the defendant's interest in the property. This judgment is wholly unpaid. Neither the plaintiff wife nor Transport has been able to find any other assets of the defendant, nor any sources of income, and as far as is known he has none. 1
The defendant separated from the plaintiff wife in October, 1958, left the family residence in Greenwich and resided at the Westchester Country Club in Westchester County, New York, until March, 1960. Since that time his whereabouts have remained unknown. Until May, 1959, he made sporadic payments for the plaintiffs' support of about $3000 a month. Thereafter, he agreed to provide them with a monthly allowance of $2500, which he did until August, 1959. Since then he has paid nothing.
Transport made a motion that it be allowed to appear and defend the instant action under § 52-86 of the General Statutes. 2 This motion was granted, and pursuant thereto Transport was allowed to, and did, participate in the trial of the plaintiffs' action and vigorously contested it in the name of the defendant.
In personam service on the defendant was not achieved by the plaintiffs, so that the judgment for support is collectible only from the property attached. Artman v. Artman, supra, 111 Conn. 127, 149 A. 246; Smith v. Smith, 150 Conn. 15, 18, 183 A.2d 848. The defendant, however, received actual notice of the action, he was not in the military service, and judgment by default for failure to appear was entered against him.
Transport makes no distinction between the rights of support of the plaintiff wife and those of the plaintiff minor children, and the judgment was a lump sum allowance of $500 a month, payable to the plaintiff wife for the support of all the plaintiffs. Transport does not claim that $500 a month was an excessive allowance from the point of view of the reasonable requirements of the plaintiffs' support. But it does claim that under the particular facts of this case no more than nominal support of $1 a month should have been awarded; or, in the alternative, that the award for support, as made, should not have been equitably charged on the Greenwich real estate or secured by the attachment. In passing it may be pointed out that since this is a quasi in rem action, if the alternative claim is sound, the court would lack jurisdiction to render any judgment, and the plaintiffs would be remediless. Carter v. Carter, 147 Conn. 238, 241, 159 A.2d 173; Gimbel v. Gimbel, 147 Conn. 561, 565, 163 A.2d 451.
The mere fact that a husband has no income, earned or unearned, does not relieve him from the obligation of providing support within the reasonable limits of his ability if he has available assets from which such support may be provided. Smith v. Smith, 114 Conn. 575, 581, 159 A. 489. Nor does the fact that the wife has, as here, property of her own, operate, as Transport seems to claim, to absolve the husband from his obligation of support. Churchward v. Churchward, 132 Conn. 72, 80, 42 A.2d 659; note, 10 A.L.R.2d 466, 529.
The claim most stressed by Transport in its brief is that to hold the interest of the defendant in the real estate under attachment to satisfy the support instalments as they accrue in the future as inequitable as against Transport's claim, which is a wholly liquidated indebtedness under a judgment. The reason most strongly urged in support of this contention is that Transport's judgment debt far exceeds any possible value of the defendant's known assets, that as far as appears the defendant is insolvent, and that the court should have found that he had no ability to provide more than nominal or token support.
Obviously, if the plaintiffs' claim were wholly due, even if wholly unliquidated in amount, it would, by virtue of the priority of attachment, have taken precedence over that of Transport. See cases such as Beers v. Place, 3 Fed.Cas. 71, 72 (No. 1233), 36 Conn. 578, 581; Coit v. Sistare, 85 Conn. 573, 578, 84 A. 119. The defendant's duty to support,...
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