Tulin v. Tulin

• Decision Date: 12 July 1938
• Citation: 124 Conn. 518,200 A. 819
• Court: Connecticut Supreme Court
• Parties: TULIN v. TULIN.

200 A. 819

124 Conn. 518

TULIN v. TULIN.

Supreme Court of Errors of Connecticut.

July 12, 1938

Appeal from Superior Court, Hartford County; Edward J. Daly, Judge.

Action by Leon Tulin, a minor, by his mother and next friend against Samuel S. Tulin, brought under Gen.St.1930, § 1717 to compel defendant to contribute a reasonable sum to the support of plaintiff. Judgment for plaintiff, and defendant appeals.

Error and a new trial ordered.

Thomas F. Gallivan, Jr., and David L. Goldberg both of Hartford, for appellant.

Josiah H. Peck, of Hartford, for appellee.

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

AVERY Judge.

The plaintiff, a minor of the age of fourteen years and an inhabitant of Bloomfield, brought this action by his mother and next friend, to compel his paternal grandfather to contribute a reasonable sum for his support as provided by General Statutes, § 1717. After hearing, the trial court entered judgment for the plaintiff and the defendant has appealed. The material facts found by the trial court in which no material change can be made are these: The mother and father of the plaintiff are divorced. By the divorce judgment custody was granted to the mother with whom the plaintiff lives. She is thirty-five years of age and has never had steady employment. Her income from her earnings in 1937 was not over $300 and she had no income from outside sources. The plaintiff attends Junior High School and is in good health except that he suffers from a mild form of asthma. His father lives at times with the defendant. The plaintiff's father has contributed nothing to the plaintiff's support for many years and the latter does not know his father by sight. No relative other than the defendant is financially able to contribute to the plaintiff's support. The defendant is the owner of real estate assessed for taxation in the city of Hartford in the list of 1937 for more than $300,000. The court further found that the expense of support for the plaintiff is increasing as he grows older and that $12 a week is a reasonable contribution by the defendant for that purpose. The town of Bloomfield provides a maximum sum of $5.50 a week for the support of minors on relief, which includes all necessities except medical aid, and the sum of $5.50 is an amount determined and set by the state bureau of child welfare.

The defendant on this appeal contends that the plaintiff being an unemancipated minor is not a person ‘ who has become poor and unable to support himself and family’ within the meaning of General Statutes, § 1717, appended in the footnote.^[1] The substance of the contention is that as the custody of an unemancipated minor is in his parents and his earnings belong to them, the claim for support of such a minor must be pursued through the parent who has the custody. The statute does not make such a distinction between the rights of an unemancipated minor and other people. The history and purpose of this legislation is set forth in Condon v. Pomeroy-Grace, 73 Conn. 607, 613, 48 A. 756,53 L.R.A. 696. It seeks to secure, to persons unable to support themselves, a proper support, under the circumstances, through the medium of contribution from others, brought by statute under the duty of making that contribution by reason by some relationship, and thus to protect the public purse from demands upon it which would otherwise result. Koniak v. Koniak, 123 Conn. 338, 342, 195 A. 189; Bradley v. Fenn, 103 Conn. 1, 4, 130 A. 126; Belden v. Belden, 82 Conn. 611, 613, 74 A. 896. By its terms the statute gives a right of action to ‘ any of such relatives' against ‘ any such relatives able to provide’ and in addition thereto the action may be brought by the state agent, selectmen, husband, wife or conservator. No exception is made in the case of minors. To bring the statute into operation it must be shown: (1) That the plaintiff is poor and unable to support himself; (2) that the relative made defendant is ‘ able to provide’ ; and (3) has neglected to do so. When these conditions exist the statute imposes on any of the relatives mentioned therein the obligation to furnish to the poor relative a reasonable support.

Under our practice an action on behalf of a minor is properly brought by the minor by next friend. Williams v. Cleaveland, 76 Conn. 426, 432, 56 A. 850; Cole v. Jerman, 77 Conn. 374, 380, 59 A. 425. The present action was properly brought by the plaintiff by his mother as next friend. The plaintiff was not required to allege or prove that his father was unable to furnish support. The plaintiff must be one who has no presently available means reasonably sufficient for his support, and who if support is not provided by one of the designated relatives would be entitled to receive it from the town or other responsible public authorities. Koniak v. Koniak, supra. It was sufficient to entitle the plaintiff to relief against his grandfather that he had no means of his own, that his mother was not able to support him, and that his father had, in effect, abandoned him and failed wholly to provide any support.

The defendant contends that a ‘ neglect to provide’ on the part of the defendant antedating the action has not been shown. Upon this point the facts which must be established in order to maintain an action are set forth in Lathrop v. Lathrop, 78 Conn. 650, 652, 63 A. 514, 515: ‘ For the maintenance of an action under the statute, certain conduct on the part of the relative proceeded against must be shown. That conduct is described as neglect to provide support. Clearly the word ‘ neglect,’ as thus...