Thomas v. Thomas

• Citation: 159 Conn. 477,271 A.2d 62
• Court: Supreme Court of Connecticut
• Decision Date: 09 June 1970
• Parties: O. Pendleton THOMAS v. Alice A. THOMAS.

Page 62

271 A.2d 62

159 Conn. 477

O. Pendleton THOMAS v. Alice A. THOMAS.

Supreme Court of Connecticut.

June 9, 1970.

John F. Lambert, Greenwich, with whom were Frederick J. Coyer, Greenwich, and Richard F. Comerford, Jr., Greenwich, for appellant (defendant).

Bernard S. Peck, Bridgeport, with whom were Arthur E. Balbirer, Bridgeport, and, on the brief, David Goldstein, Bridgeport, for appellee (plaintiff).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

THIM, Associate Justice.

The plaintiff and the defendant were married in Galveston, Texas, in 1939 and have two minor children of their marriage. Moving frequently, they resided in various parts of the country until 1955, when they settled in Greenwich. In 1967 the parties ceased living together as man and wife, and they separated completely in February, 1968. The husband commenced an action for divorce in September, 1968, and the wife filed a counterclaim and cross complaint seeking a legal separation, alimony, custody and support of minor children, and counsel fees. On June 20, 1969, the court found for the wife and granted her a legal separation, together with the other relief requested. On June 23, 1969, three days after the judgment, the husband petitioned the court for a decree finally dissolving and terminating the marriage pursuant to General Statutes § 46-30. On June 25 the wife appealed to this court from the judgment rendered on June 20 and moved to erase the husband's petition for a decree dissolving the marriage. On July 9 the court rendered a judgment dissolving and terminating the marriage but affirming all other orders contained in its earlier judgment of June 20. The wife also appealed from the July 9 judgment, and the parties have treated both appeals as one case.

The only error specifically assigned relative to the July 9 judgment asserts that the court erred in granting the petition to dissolve and terminate the marriage while the judgment of legal separation was on appeal to this court. General Statutes § 46-30 permits the Superior Court to enter a decree dissolving and terminating a marriage upon petition of either party at any time after the entry of a decree of legal separation. The relief provided in § 46-30 is essentially equitable in nature and may be granted or denied in the discretion of the trial court. Lee v. Lee, 145 Conn. 355, 360, 143 A.2d 154. The only restriction upon the court's power to grant this relief which is expressed in the statute is that the court find that the parties have not resumed marital relations since the rendition of the decree of legal separation. Satter v. Satter, 153 Conn. 230, 231, 215 A.2d 415. Thus it would appear from the terms of the statute that the court had the power to grant the husband's petition in this case, in the exercise of its sound discretion, even though only three days had passed since the separation decree.

Judicial discretion, however, is always a legal discretion, exercised according to the recognized principles of equity. Hammerberg v. Leinert, 132 Conn. 596, 604 46 A.2d 420. While its abuse will not ordinarily be interfered with on appeal to this court, reversal is required where the abuse is manifest or where injustice appears to have been done. Grievance Committee v. Nevas, 139 Conn. 660, 666, 96 A.2d 802. Where either an appeal has been filed from a decree of separation or the time for taking such an appeal has not yet passed, it is a manifest abuse of a court's discretion to dissolve and terminate a marriage under § 46-30 until the outcome of the appeal, if any, is known, or until the time for taking an appeal has passed and none has been filed. The taking of an appeal from a separation decree stays enforcement of rights derived from that judgment by the litigants, and it is an abuse of discretion for a court to render a decree under § 46-30 until the validity of that judgment of legal separation has been finally determined. See General Statutes § 52-264; Practice Book § 661; Saunders v. Saunders, 140 Conn. 140, 145, 146, 98 A.2d 815; Palmer v. Des Reis, 135 Conn. 388, 390, 64 A.2d 537; Walsh v. Laffen, 131 Conn. 358, 360, 40 A.2d 689.

An appeal from a divorce decree or from a decree of legal separation should forestall 'further proceedings in connection therewith until the return of the mandate or termination of the appellate proceeding by withdrawal or dismissal. * * * The decree remains binding upon the parties and in force throughout the pendency of the appeal subject only to the possibility of an ultimate appellate reversal.' 4 Am.Jur.2d, Appeal and Error, § 377. Thus the right of the parties after a decree of legal separation to have a petition filed pursuant to § 46-30 passed upon by the Superior Court is suspended in the same manner as any other right arising from the decree while the appeal is pending, and it would be a manifest abuse of discretion for a court at such a time to enter a decree dissolving and terminating the marriage. It was error, therefore, for the court in the instant case to render the July 9 judgment while an appeal was pending in this court from the June 20 judgment.

We now turn to the wife's claim that the court's award of alimony and property from her husband's estate was inadequate. The following facts are of assistance in considering this claim. The court found that at the time of their marriage neither party had any assets. Immediately after World War II, the husband became employed by Sinclair Oil Corporation and was elected assistant comptroller in 1954. Ten years later he became president of Sinclair, which merged with Atlantic Richfield Company in 1969. He is currently chairman of the executive committee of the merged corporations, which is the third-highest executive office. We see no need to go into great detail as to the husband's assets at the time of the award, except to state that they were substantial and commensurate with his position. His assets amounted to approximately $1.5 million and consisted primarily of Atlantic Richfield Company stock. He was receiving an annual salary of $175,000 in his position as chairman of the executive committee. His liabilities were also substantial, consisting principally of a debt of $342,000 owing to a New York bank and evidenced by demand notes. It further should be pointed out that the husband had no written or oral contract, agreement or understanding with Atlantic Richfield as to either his salary or his tenure of employment.

At the time of the award the wife had no income. She owned jointly with her husband a home in Greenwich, an unimproved tract of land also located in Greenwich, and an interest as joint tenant with right of survivorship in $8755 worth of stock. In her own name she owned an automobile, a checking account with a balance of $2672, and a $30,000 insurance policy on the life of her husband with a cash surrender value of $1000.

The court awarded the wife $3000 a month alimony and $150 a month child support for each minor child and ordered the husband to pay medical, dental, surgical nursing and college expenses for each minor child until majority. The court further ordered the husband to quitclaim to his wife his interest in their home, including all fixtures, furniture and other personal property found therein. The home was completely paid for and valued at $60,000. The husband was directed to change his group life insurance policy to include his wife as an irrevocable beneficiary in the amount of $150,000, and to keep the policy in force and effect so long as he is employed by Atlantic Richfield. He was ordered to pay $15,000 for his wife's counsel fees. In addition, he was directed to deliver to her $130,000 worth of stock from his estate as a further settlement, from which she would also derive an income of $4480 per year, raising her annual income as a result of the judgment to over $40,000.

Despite her substantial award, the wife contends that the court abused its discretion because it did not give her a greater share of her husband's salary and estate. 'An abuse of judicial discretion will be reviewed on appeal in this as in other cases, but trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant.' LaBella v. LaBella, 134 Conn. 312, 318, 57 A.2d 627, 629. The statute authorizing an award of alimony is very broad and gives the court a wide discretion. General Statutes § 46-21; Elmore v. Elmore, 138 Conn. 408, 410, 85 A.2d 491. Alimony is based upon the continuing duty of a divorced husband to support an abandoned wife and should be sufficient to provide her with the kind of living which she might have enjoyed but for the breach of the marriage contract by the defendant. Shrager v. Shrager, 144 Conn. 483, 487, 134 A.2d 69. Only one Connecticut case can be found in which the court's discretion in setting alimony was held to have been abused, and in that case the trial court had refused to increase an award of $260 annually when the husband was earning over $10,000 per year. Shrager v. Shrager, supra; see Elmore v. Elmore, supra; LaBella v. LaBella, supra. We cannot say that the court's award in the instant case was inadequate as a matter of law under the parties' present circumstances.

The wife next claims that the court should not have found that the husband would incur a federal capital gains tax on any stock transferred to her as alimony. She is not making the claim that the tax, if applicable, was an improper subject for the court's consideration in determining the husband's assets and financial ability to transfer a substantial amount of stock to her. Rather, her only claim as we see it is that the court erroneously concluded that the transfer would be taxable.

The controlling case on this issue is United States v. Davis, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335. The Davis...