Tobey v. Tobey

• Decision Date: 15 January 1974
• Citation: 345 A.2d 21,165 Conn. 742
• Parties: Wilhelmena C. TOBEY v. Robert S. TOBEY.
• Court: Connecticut Supreme Court

Page 21

345 A.2d 21

165 Conn. 742

Wilhelmena C. TOBEY v. Robert S. TOBEY.

Supreme Court of Connecticut.

Jan. 15, 1974.

C. Robert Satti, New London, for appellant (plaintiff).

John Rose, Jr., Hartford, for appellee (defendant).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

LOISELLE, Associate Justice.

On August 16, 1971, a decree of divorce was rendered in favor of the plaintiff, Wilhelmena Tobey, by a state referee acting as the court. As alimony, there was assigned and set over to the plaintiff wife all the right, title and interest of the defendant, Robert S. Tobey, in one of the parcels of land and dwellings owned jointly by the parties. In addition, the defendant was ordered to pay the lump sum of $1000 within sixty days of the judgment and continuing alimony of $30 per week. The plaintiff has appealed from the judgment rendered. All of her assignments of error, however, relate to the award of alimony and the refusal of the court to find the defendant in contempt of court.

The court found ¹ that the parties were married on November 5, 1950, and the plaintiff separated from the defendant was guilty March, 1969. The defendant was guilty of intolerable cruelty to the plaintiff.

The defendant operated a seasonal business of general contracting and the assets of his business totaled $12,700. He also owned a horse, a small boat and a mobile home. During their marriage the parties acquired three parcels of real property which they jointly owned at the commencement of the divorce action. During the pendency of the action the court (Armentano, J.) ordered 'that the plaintiff wife live in Gutterman 2, on Gutterman Road rent free; defendant to pay for mortgage, taxes and insurance; also understood that the defendant will collect the rents and pay bills on three (sic) other properties jointly owned by the parties.' The defendant was heavily in debt and was earning about $100 a week at the time of trial. The plaintiff's take-home pay was $167.36 every two weeks. Subsequent to the commencement of the divorce action one of the properties jointly owned by the defendant and the plaintiff was foreclosed. In addition, the land and the building assigned to the plaintiff by the divorce judgment were already in foreclosure with the law day set for about a month after the date of judgment.

The plaintiff has assigned as error the conclusion of the court that the defendant was not in contempt. While this is a somewhat unusual claim, review of such a question is within the powers of this court in a case of civil contempt. Baldwin v. Miles, 58 Conn. 496, 497, 20 A. 618; Annot., 24 A.L.R.3d 650, 663 § 6(a); contra, 668 § 6(b), 672 § 8. Contempt can be civil or criminal in character. State v. Jackson,147 Conn. 167, 169, 158 A.2d 166; Welch v. Barber, 52 Conn. 147, 156. It may be denominated civil when the conduct constituting the contempt is directed against some right of the opposing party, as in this case where acts required by the court for the benefit of the plaintiff allegedly were neglected. McTigue v. New London Education Assn., 164 Conn. 348, 352, 356, 321 A.2d 462; Welch v. Barber, supra; Lyon v. Lyon, 21 Conn. 185, 198-199. The court's order regarding the plaintiff's residence and the defendant's financial duties was interlocutory in nature and terminated with the rendition of the final judgment. Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815. In Nowell v. Nowell, 157 Conn. 470, 182, 254 A.2d 889, 896, cert. denied, 396 U.S. 844, 90 S.Ct. 68, 24 L.Ed.2d 94, this court ruled that '(i)n a divorce or separation action, a husband cannot be punished for his civil contempt arising from noncompliance with preliminary injunctions after a final judgment has been rendered unless the final judgment itself awards damages for the civil contempt.' We agree, as the authority cited on page 483, 254 A.2d 889 of Nowell states, that where a final decree of divorce has been rendered, (any orders regarding pendente lite alimony are merged in the final decree) and thereafter, no independent action for contempt based on the temporary alimony order can be properly brought. Review may be made, however, of that part of a final order which fails to cite a defendant for contempt or which fails to incorporate an accumulated arrearage of pendente lite alimony.

The scope of the review for contempt has often been stated by this court. 'Contempts which do not occur in the presence of the court . . . are not punishable by statute, but rather, 'are defined and punished by the common law.' Welch v. Barber, 52 Conn. 147, 156. 'An adjudication of contempt is final and may be reviewed only on questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.' State v. Jackson, . . . (147 Conn. 167, 170, 158 A.2d 166); Goodhart v. State, 84 Conn. 60, 63, 78 A. 853.' Stoner v. Stoner, 163 Conn. 345, 359, 307 A.2d 146. In this case, the question is whether the court was in error in refusing to impose punishment for the alleged noncompliance with its pendente lite order.

The court did not find that the defendant voluntarily depleted his assets during the time that the divorce was pending, although the plaintiff had asserted this at the hearing. The evidence was conflicting and the finding clearly indicates that the court simply did not believe the plaintiff's claim in this respect. Furthermore, an unattacked finding states that the defendant was heavily in debt at the time of the hearing. The finding amply supports the court's refusal to hold the defendant in contempt of court for failure to follow the pendente lite order. The inability of the defendant to obey an order of the court, without fault on his part, is a good defense to a charge of contempt. 17 Am.Jur.2d, Contempt, § 51.

The main thrust of the plaintiff's argument is twofold. She first claims that the court prevented sufficient questioning of the defendant on the issues of whether he voluntarily reduced his financial assets during the pendency of the divorce action and whether he falsified statements of his income. One unattacked finding of the court states: 'Counsel for plaintiff on November 19, 1970 examined the defendant at great length on defendant's financial affidavit and other matters, developing a complicated situation involving mortgages, attachments, rental collections interference by counsel for plaintiff in collections, vacancies in some tenements, repairs ordered by authorities, the value of various articles of personal property, earnings of the defendant in past years, rentals in past years and collection and disposal of rentals received by parties in past years.' In addition, counsel for the plaintiff examined the defendant fully as to his gross receipts from his business for the last five years. No error has been shown concerning the offer of testimony as claimed by the plaintiff.

The second claim of the plaintiff is that the court erred in refusing to take into consideration the value of the defendant's assets and his gross earnings prior to the commencement of the divorce proceedings. Gross earnings is not a criterion for awards of alimony. (It is the net income, which is available to the defendant, which the court must consider.) The finding indicates that the court allowed extensive cross-examination of the defendant as to his gross earnings, expenses and net earnings. The conclusion of the court that the defendant was earning and had been earning during the four prior years about $100 a week is amply supported by the finding. As to the balance of the plaintiff's claim, the court's comments do indicate that it did not care how the assets were depleted but that it was only interested in how much was available at that time. In this state neither a husband nor a wife acquires, by virtue of...