Schilcher v. Schilcher

• Decision Date: 17 June 1938
• Citation: 124 Conn. 445,200 A. 351
• Court: Connecticut Supreme Court
• Parties: SCHILCHER v. SCHILCHER.

200 A. 351

124 Conn. 445

SCHILCHER v. SCHILCHER.

Supreme Court of Errors of Connecticut.

June 17, 1938

Appeal from Superior Court, Fairfield County; Carl Foster, Judge.

Divorce action by Ralph L. Schilcher against Ruth W. Schilcher wherein the defendant filed a cross-complaint for divorce. From a judgment of the Superior Court accepting the referee's report and granting a divorce to the plaintiff and from the action of the court denying defendant's motions for an allowance to prosecute the appeal, for alimony pendente lite and support of a minor child, the defendant appeals.

No error.

Court after granting divorce for wife's adultery and determining that child born to her was illegitimate, did not abuse its discretion in denying wife's motions for counsel fees, alimony pendente lite, and support of minor child, on the ground among others that the financial situation and resources of the parties were not such as to warrant granting the motions.

Harry M. Lessin, of South Norwalk, for appellant.

Samuel R. Sallick, of South Norwalk, for appellee.

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

JENNINGS, Judge.

The judgment appealed from awarded a divorce to the plaintiff on the ground of adultery and found the issues for the plaintiff on the defendant's cross complaint for a divorce on the ground of intolerable cruelty. The facts were found by a state referee and the assignments of error relate to the rulings of the court on the remonstrance to the report. There was also a supplemental appeal based on the denial of motions for alimony, support and allowance to defend.

The referee found the following facts: The parties intermarried January 22d, 1935, and had resided in this State for more than three years before the date of the complaint. They have no minor children. They did not live together as man and wife and kept their marriage secret for some time. The defendant gave birth to a child on September 24th, 1936. There had been no sexual relations between the parties after June 1935. The issues on complaint and cross complaint are found for the plaintiff.

Among the grounds of remonstrance was one to the effect that the referee failed to incorporate in the report a ruling on evidence. The plaintiff demurred and the demurrer was sustained. The ruling was correct. The remonstrance was not in proper form for the determination of a ruling on evidence. The note to Form 555 E, Practice Book, p. 354, provides that the remonstrance should state the rulings of the committee as they are stated in findings (see form 646, Practice Book, page 407; § 359, page 105). Ferguson v. Cripps, 87 Conn. 241, 247, 87 A. 792; Seymour Trust Co. v. Hershowitz, 103 Conn. 532, 536, 131 A. 399.

The remonstrance alleges that certain facts were found without evidence. Among them was the fact that for some fifteen months before the birth of a child to her the defendant and plaintiff had had no sexual relations. There was substantial evidence to that effect....