Whitney v. Heublein
| Citation | 145 Conn. 154,139 A.2d 605 |
| Court | Supreme Court of Connecticut |
| Decision Date | 06 March 1958 |
| Parties | Dorothv D. WHITNEY v. Gilbert W. HEUBLEIN et al. Supreme Court of Errors of Connecticut |
Allyn L. Brown, Jr., Norwich, with whom was Nathan G. Sachs, New Haven, for appellant (named defendant).
Cyril Coleman, Hartford, for appellee (plaintiff).
Before WYNNE, C. J., DALY, KING, and MURPHY, JJ., and BORDON, Superior Court Judge.
The complaint contained two counts. The first count was expressly abandoned. The trial court decided the issues for the plaintiff upon the second count, in which she alleged that the named defendant, hereinafter referred to as the defendant, had failed, since 1954, to make payments to her in accordance with the terms of a separation agreement executed by them in August, 1950, the provisions of which were adopted and approved in a Nevada decree of divorce obtained by the plaintiff in November, 1950. The defendant has appealed from the judgment in the present case. We consider only those assignments of error which he has pursued in his brief. Somers v. Hill, 143 Conn. 476, 480, 123 A.2d 468.
The court found the following facts: The plaintiff and the defendant were married on September 12, 1931, in Poughkeepsie, New York. Thereafter, they lived together as husband and wife in various places and in May, 1946, took up permanent residence in the region of Hartford. There were two children of the marriage, one born on October 17, 1933, and the other on July 22, 1936. In the spring of 1949, the defendant left the family residence and thereafter he and the plaintiff lived apart. The family residence was sold and the plaintiff with her two children occupied a house in Hartford or West Hartford. On August 28, 1950, after negotiations carried on through attorneys, the parties executed a separation agreement. On the same day, the defendant and the Hartford-Connecticut Trust Company executed a pledge agreement to secure the performance of the separation agreement. These agreements were executed in contemplation of a divorce, which the defendant was anxious to obtain, and in view of divorce proceedings which had been determined upon. The separation agreement specifically provided that, if either party should apply for a divorce and obtain one, the agreement would be submitted to the court for approval and would be binding only to the extent that it was approved, or was modified and approved, by the court. The agreement also provided that it was made 'only to settle and adjust the support and maintenance and rights of the wife and is not made for the purpose of procuring a divorce or of influencing the court in the event of divorce as to whether either of the parties has grounds for divorce against the other.'
The court also found: On or about September 26, 1950, the plaintiff took up residence in Nevada and filed a suit for divorce from the defendant in the Second Judicial District Court of that state. The defendant did not contest the suit, but he entered an appearance by his attorney. On November 8, 1950, the plaintiff obtained a decree of divorce. The decree adopted and approved the provisions of the separation agreement in the language stated in the footnote. 1 The plaintiff went to Nevada for the sole purpose of obtaining a divorce and did not intend it to be her permanent home. Shortly after having obtained the divorce, she returned to Hartford and resumed her residence with her children, the custody of whom had been granted to her by the Nevada court. On May 31, 1952, she married Howard F. Whitney. They now live together as husband and wife in Avon. After November 8, 1950, the date of the divorce decree, the defendant married Anne K. Johnson, with whom he now lives in Canton. There are two infant children of that marriage. The defendant is obligated by the pledge agreement dated August 28, 1950, to furnish to the bank on or before February 1 of each year a certified copy of his federal income tax return and a statement of his tax-exempt income, duly prepared by a certified public accountant. Although the plaintiff and the bank have demanded that the defendant furnish them information as to his 1954, 1955 and 1956 income and that he pay the plaintiff such portion thereof as may be due her, the defendant has entirely failed, neglected and refused to do so.
The court concluded that the defendant, having been represented by counsel in the Nevada divorce proceeding and having subsequently remarried could not successfully maintain in this action, which concerns only the private property rights of the parties, that the divorce decree was invalid for want of jurisdiction; that the defendant was in no position to take advantage of the equitable doctrine of clean hands; that the Nevada divorce decree, terminating the marriage of the parties and approving and fully adopting the separation agreement signed by them in August, 1950, was a valid and enforceable decree binding upon the defendant in Connecticut; that by the terms of that decree and the separation agreement incorporated therein by reference, the defendant was legally obligated to make payments to the plaintiff as more particularly set forth in the agreement ; and that the defendant was in default with respect to his obligations under the pledge agreement.
The plaintiff had demurred to the first special defense contained in the defendant's...
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...and ordering parties to comply with terms, becomes final judgment, it is not subject to collateral attack); Whitney v. Heublein, 145 Conn. 154, 139 A.2d 605, 608 (1958) (where property settlement agreement submitted to court for approval and full opportunity given for scrutiny and ascertain......
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