White v. White

Decision Date22 May 1951
Citation81 A.2d 450,138 Conn. 1
CourtConnecticut Supreme Court
PartiesWHITE v. WHITE. Supreme Court of Errors of Connecticut

Leslie N. Davis, Norwalk, for appellant.

Richard S. Weinstein and Sidney Vogel, South Norwalk, for appellee.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and ALCORN *, JJ.

INGLIS, Judge.

The complaint in this action contained two counts. In one, Earl Carl White, a young child, by his mother as guardian and next friend sought an order for future support from his father. In the other, Pearl White, the child's mother, sought to recover expenditures which she had made for her son's support prior to the institution of the action. In a counterclaim, the defendant prayed an order for the custody of the child.

The case was referred to a state referee. His finding as corrected by the trial court in connection with its ruling on a demurrer addressed to the remonstrance and as modified as to a mathematical calculation, sets forth the following facts: The plaintiff, Pearl White, and the defendant were married in Tulsa, Oklahoma, on April 8, 1944. At that time the plaintiff was a resident of Oklahoma and the defendant, although in military service, was a resident of Connecticut. Their child, Earl Carl, was born March 14, 1945. Thereafter, the couple and their child resided in Norwalk, Connecticut until January 30, 1947. On that date the plaintiff, without the consent of the defendant, left him and took the child with her. They went to Lexington, Kentucky, for a short time and then to Oklahoma where they have since resided. The defendant has been domiciled in Connecticut ever since he and the plaintiff started to live here.

On August 11, 1947, the plaintiff filed in an Oklahoma district court a petition for divorce from the defendant, making oath that she was then, and had been for more than one year immediately preceding, an actual bona fide resident of Oklahoma. The statutes of Oklahoma require that the plaintiff in an action for divorce must have been an actual resident, in good faith, of the state for one year. Okla.Stat. tit. 12, § 1272 (1941). The defendant knew of the pendency of the divorce action and retained counsel in Oklahoma but did not enter any appearance. On October 15, 1947, a decree of divorce was entered in which the plaintiff was awarded sole custody of the child.

The defendant has not contributed anything to the support of the child since the separation of the parties in January, 1947, although requested to do so by the plaintiff. His position has been that he was willing and able to furnish support at his home in Norwalk but that he would not contribute unless the plaintiff would agree to some plan which gave part-time custody to him. The plaintiff has refused to agree to any such plan. She has supported the child at a total expense of $975. Her earnings are $30 a week plus meals and uniforms. The defendant, since the divorce decree, has married and has one child of the marriage. He is a carpenter and has an average income of $2000 a year. It would be for the best interest of the child Earl Carl that he remain in the custody of the plaintiff without any particular arrangement for partial custody by or a right of visitation in the defendant.

The record is in an unsatisfactory condition in that there is no finding of the conclusions of law made by the trial court upon the report of the referee. Inasmuch, however, as the parties have treated the memorandum of decision as a statement of those conclusions, we will do likewise. The court concluded that it was not necessary to determine the validity of the Oklahoma divorce decree; that the present custody and control of the child by the plaintiff are not wrongful; that the defendant is liable for the support of the child and during the period mentioned in the complaint failed to discharge that obligation; that the best interest of the child requires that he remain with his mother; and that it is equitable that the defendant be required to pay $8 a week to the plaintiff toward the support of the child. Judgment was rendered for the plaintiff on both counts of the complaint and on the counterclaim.

At common law the primary obligation for the support of a minor legitimate child rests upon the father. Bohun v. Kinasz, 124 Conn. 543, 546, 200 A. 1015. The same is true under § 7308 of the General Statutes. Churchward v. Churchward, 132 Conn. 72, 79, 42 A.2d 659. This obligation is not terminated per se by the divorce of the parents of the child; Welch's Appeal, 43 Conn. 342, 350; although, by virtue of § 7340 of the General Statutes, after divorce the obligation is upon both parents to maintain the children of their marriage according to their respective abilities and the court may inquire into the pecuniary ability of each and make such decree against either or both for such maintenance as it considers just. Castagnola v. Fatool, 136 Conn. 462, 465, 72 A.2d 479. Correlative to the duty of the father to support is the right to the custody and companionship of the child. Ordinarily, therefore, a parent's obligation to support is suspended during such time as he is wrongfully deprived of the custody of his child. If he is entitled to custody and is willing and able to provide proper support in his own home, he is not liable for the child's support elsewhere. Where a child has been removed from his father's home by his mother, immunity from liability for support arises in the event that such removal was wrongful. In the absence of a controlling order of court affecting the father's right of custody, the removal from the home provided by him will be rightful only if (1) the father in unwilling or unable to provide proper support under his own supervision, or (2) he has consented to the child's absence, or (3) the child's removal has been caused by the father's own fault. These principles are established at common law by the great weight of authority. Shields v. O'Reilly, 68 Conn. 256, 261, 36 A. 49; Assman v. Assman, 192 Mo.App. 678, 682, 179 S.W. 957; People v. Shine, 271 Ill.App. 479, 483; McDaniel v. McDaniel, 36 N.M. 335, 340, 15 P.2d 229; Mihalcoe v. holub, 130 Va. 425, 430, 107 S.E. 704; 39 Am.Jur. 689, § 53.

We have no statute which changes the common-law rule concerning a father's immunity from liability. General Statutes, § 7308, after providing among other things that both the husband and wife shall be liable for the cost of any article purchased by either for the support of the family, reads: 'It shall be the duty of the husband to support his family, and his property when found shall be first applied to satisfy any such joint liability; and the wife shall be entitled to an indemnity from the property of the husband for any property of her own that shall have been taken, or for any money that she shall have been compelled to pay, for the satisfaction of any such claim.' The effect of this statute is to permit a wife to recover from the husband such sums as she may have been compelled to expend for the support of the family. In this it modifies the common law. It does not, however, modify the common law determining the conditions excusing the husband from obligation to support his wife or child. Under the statute, a wife may recover only in the event that the husband has failed to perform the obligation for support imposed upon him by the common law. As we said in Cantiello v. Cantiello, 136 Conn. 685, 691, 74 A.2d 199, 203, concerning the portion of the statute quoted above, 'It is very apparent that it was not added as a limitation upon the defenses which might be available to a husband in an action brought against him by his wife.'

Nor does the joint guardianship statute, General Statutes, § 6850, give any added rights to a mother to recover from the father of a child for the child's support. It gives her a right to custody of a child equal to the right of the father, it is true, but it does not give her a paramount right. The father's rights as guardian continue even though the mother has removed the child from his custody. Pfeiffer v. Pfeiffer, 99 Conn. 154, 156, 121 A. 174. If we assume, therefore, without deciding, that the joint guardianship statute permits a mother to remove her child from the custody of the father, it does not follow that the father is by reason of this statute made responsible for the child's support if the removal was wrongful.

Under the well-established principles set forth above, in order to impose liability upon the defendant in this case it must appear either that there has been a valid judgment by which the defendant has been deprived of the right to custody of the child or that for some other reason the removal of the child from his custody was not wrongful. The burden of proof on these matters is upon the plaintiff. Mihalcoe v. Holub, 130 Va. 425, 430, 107 S.E. 704.

The judgment relied upon by the plaintiff is the Oklahoma decree purporting to grant her a divorce and the custody of the child. It is fundamental that to be entitled to full faith and credit in this state it is essential that such a judgment be within the jurisdiction of the Oklahoma court. So far as the divorce feature of the judgment is concerned, the report of the referee as corrected makes no finding that the plaintiff was domiciled in Oklahoma at the time she instituted the action. Without jurisdiction of her domicil and without the defendant's having entered to...

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