Tippin v. Tippin

• Decision Date: 06 December 1960
• Citation: 148 Conn. 1,166 A.2d 448
• Parties: Barbara C. TIPPIN v. Charles R. TIPPIN. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 448

166 A.2d 448

148 Conn. 1

Barbara C. TIPPIN v. Charles R. TIPPIN.

Supreme Court of Errors of Connecticut.

Dec. 6, 1960.

Frederick Pope, Jr., Bridgeport, for appellant (plaintiff).

Ralph C. Dixon, Hartford, with whom, on the brief, was John Crosskey, Madison, for appellee (defendant).

Before KING, MURPHY and MELLITZ, JJ., and DEVLIN and PASTORE, Superior Court Judges.

KING, Justice.

The plaintiff and the defendant, her former husband, have two children, Nancy Jane, born April 24, 1948, and Corey Grant, born December 29, 1949. In 1955, the plaintiff instituted divorce proceedings against the defendant. After a lengthy hearing and an investigation by an experienced probation officer, the court, on November 21, 1955, awarded the defendant custody of both children, pendente lite. On April 13, 1956, the defendant was granted an uncontested divorce on his counterclaim. In accordance with the terms of a written agreement of the parties which was submitted to the court, custody of the two children was awarded to the defendant subject to reasonable privileges of visitation in the plaintiff. Since the date of the award pendente lite, the children have been with their father, the defendant, at his home in Essex. Up until the time of the marriage of the defendant to his present wife, Theresa J. Tippin, on November 14, 1958, the children were cared for by him and his mother. Since that time they have been cared for by the defendant and his present wife.

In July, 1956, the plaintiff was married to Jack Stock, an attorney. Since that time she has lived with him in Redding. On November 30, 1956, the defendant entered into a stipulation with the plaintiff for the modification of the custody order to enlarge her visitation privileges, and on December 1, 1956, the court modified the order in accordance with the terms of the stipulation. On June 5, 1958, the plaintiff filed another motion for modification of the decree as to custody. The probation officer who had previously investigated did so again and made a full report. Hearings were held on the plaintiff's motion, and in July, 1959, the court denied it, writing an extended memorandum of decision which showed a careful, sympathetic and understanding consideration of the claims of the parties and the rights of their children. The real question before the court was whether the plaintiff had proved such a change of circumstances, since the date of the rendition of the existing custody award, that the welfare of the children required that the award be modified. The only change of circumstances actually found proven by the court was the defendant's marriage to the present Mrs. Tippin and the substitution of her for his mother in the management of his home and the rearing of his children. This change was not found to have adversely affected the welfare of the children.

The plaintiff's sole ground for her claim that the defendant was no longer a suitable person to have custody of the children was that he and his present wife were not legally married. See cases such as Commonwealth ex rel. Thompson v. Yarnell, 313, Pa. 244, 169 A. 370. The claimed invalidity in the marriage was predicated solely on the ground that Theresa J. Tippin's Alabama divorce from her former husband, David P. Perry, was void for lack of jurisdiction because neither of the parties to it had a domicil in Alabama. Santangelo v. Santangelo, 137 Conn. 404, 407, 78 A.2d 245; Restatement, Conflict of Laws § 111. The court found that the present Mrs. Tippin was granted a divorce from her former husband on February 21, 1958, in Alabama; that she went to Alabama on February 18, 1958, which was the date her divorce complaint was filed; that she obtained a leave of absence from her employment in Connecticut, retaining her apartment in Essex; that she went to Alabama for the purpose of securing a divorce and was in Alabama about three days; and that she thereafter immediately returned to her apartment in Essex and resumed her job. The plaintiff, in her appendix, has printed a copy of the divorce proceedings in Alabama. These show that Perry, the defendant in that action, appeared by attorney on February 3, 1958; that the parties entered into an agreement as to alimony and their respective property rights; that this agreement was incorporated by reference in the divorce decree; and that the decree contained a finding that the court had jurisdiction of the parties and of the cause of action. See Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 96 L.Ed. 146. Whether Perry has remarried does not appear in the finding. See Whitney v. Heublein, 145 Conn. 154, 160, 139 A.2d 605.

In its memorandum of decision in the instant case, the court stated that the welfare of the children was the paramount consideration in this custody controversy. This of course was indisputably correct. It further stated that the children had been very happy and well cared for during the entire time they had been with their father, and had gotten along well in school and in children's community projects and relationships, and that '[t]o go behind * * * [the Alabama divorce] proceeding and decide the present controversy [as to custody] solely on * * * [the] ground [of the validity or invalidity of the present Mrs. Tippin's divorce] would divert the Court from its primary obligation.' In effect, the court refused to adjudicate the validity of the present Mrs. Tippin's divorce. This refusal is the real error claimed on this appeal.

It is important to note that the plaintiff did not claim that Theresa J. Tippin procured the Alabama divorce by personal fraud or perjury, or knew of any infirmities in it, or indulged in any improper or unethical conduct...