Winick v. Winick
| Decision Date | 30 December 1965 |
| Parties | Faith WINICK v. Bernard WINICK. Supreme Court of Errors of Connecticut |
| Court | Connecticut Supreme Court |
Donald H. Clark, New Britain, for appellant (plaintiff).
Herbert S. Wolfe, Hartford, with whom on the brief, were Martin A. Clayman and Mark A. Rosenthal, Hartford, for appellee (defendant).
Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.
The plaintiff was granted a divorce from the defendant on March 24, 1961. The judgment included an order that the care, custody and education of two minor children of the parties, subject to the right of reasonable visitation by the defendant, be committed to the plaintiff, and an order that the defendant pay the sum of $20 a week for the support of each of the children. In 1964 the judgment was modified to provide that the support payments be made through the family relations department of the Superior Court. In September, 1964, the defendant's counsel of record withdrew as the defendant's attorney, and thereafter the defendant was not represented by counsel of record until January 15, 1965, when he appeared with new counsel at the contempt hearing which gave rise to the present appeal. The plaintiff's present counsel formally appeared for the plaintiff in September, 1964, and was still counsel of record for her on January 15, 1965.
In January, 1965, the plaintiff filed with the Superior Court an application for a contempt order, alleging that the defendant was in default of his support payments in the amount of $880 and praying that he be adjudged in contempt of court in refusing to comply with the judgment of the court. The defendant was summoned to appear before the court on January 15, 1965, to show cause why he should not be held in contempt of court for failure to comply with the judgment.
The defendant appeared in response to the order, accompanied by new counsel, who was then appearing for the first time on the defendant's behalf. The arrearage, with costs, was determined to be $894.80. Neither the plaintiff nor her counsel were present at the contempt hearing. During a colloquy between the court and the defendant's counsel, the latter orally moved for termination of the support payments upon payment of the arrearage, stating to the court that the children were presently residing outside the state. The court thereupon from the bench directed that an order be entered, effective upon the payment of the $894.80, modifying the judgment to provide that further payments of support for the minor children be suspended until they should be returned to the jurisdiction of the court. From this modification of the judgment, the plaintiff has appealed, assigning as error the order of the court in terminating the support for the minor children on the oral motion of defense counsel when the only matter then properly before the court was the application for a contempt order sought by the plaintiff.
Upon the dissolution of any marriage by divorce the parents of any minor child of the marriage are required to maintain the child according to their respective abilities. General Statutes § 46-26. The same section also provides that, upon the complaint of either parent at the time a divorce is decreed or thereafter, the court shall inquire into their pecuniary ability and may make and enforce such decree against either or both of them for the maintenance of the child as it considers just. See Shrager v. Shrager, 144 Conn. 483, 486, 134 A.2d 69. Each parent, therefore, has a substantial interest in any order which the court may render for the support of a minor child of the marriage.
The practice in our courts is to require written pleas and motions, which are to be filed with the clerk. Practice Book §§ 79, 81; New Haven Sand Blast Co. v Dreisbach, 104 Conn. 322, 329, 133 A. 99. Section 381 of the Practice Book expressly provides that an application for modification of an award of support for minor children by any person who is then in arrears under the terms of a support order shall be 'filed.' Section 380 of the Practice Book requires that in any contested...
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