Opinion
Argued December 7, 1938
Decided January 5, 1939.
ACTION for a divorce, brought to the Superior Court in Litchfield County and tried to the Court, McEvoy, J.; judgment for the plaintiff and appeal by the defendant; subsequently the court, Wynne, J., ordered the plaintiff to pay to the defendant $500 for counsel fees and expenses by way of alimony pendente lite, from which action the plaintiff took the present appeal to this court. No error.
The appellee filed a motion to erase the appeal, which was denied.
PER CURIAM. The plaintiff secured a judgment of divorce in the trial court and the defendant appealed. After the trial court had made its finding and the defendant had filed an assignment of errors she renewed a motion previously made but not determined for alimony pendente lite and an allowance for fees and expenses of the appeal to this court, including the fees and expenses of her counsel. The trial court made an order that the plaintiff pay the defendant the sum of $500 "for counsel fees and expenses by way of alimony pendente lite." From that order the plaintiff took an appeal and filed assignments of error. The motion to erase states that testimony was taken at the hearing upon the motion for allowances and that the trial court also had before it a transcript of the evidence at the trial of the divorce action. No request for a finding was filed and the trial court has made none. The defendant has moved to erase the appeal because of the lack of a finding to support it. The defendant's motion for alimony and an allowance alleged that she was without any adequate means of support and without means to prosecute the appeal. As far as the record discloses these allegations were not contested and we may assume that they are correct. The printing of the record for this court necessarily involves, in order to present the many assignments of error in the defendant's appeal which attack the finding, the printing of much testimony. It would plainly be unjust to require the defendant to undertake the expense of this until the allowance made to her by the trial court is paid, if she is entitled to it. The plaintiff's appeal from the order making that allowance should be first disposed of. To do that the plaintiff must present to us a record adequate to determine some claims he makes of errors committed by the trial court. Whether or not an appeal is meritorious is a consideration important and perhaps controlling in passing upon such a motion as that of the defendant for allowances; Valluzzo v. Valluzzo, 104 Conn. 152, 156, 132 A. 406. The trial court in its memorandum of decision stated that the appeal had "legal merit," basing that conclusion upon "an examination of the file and the record coupled with some degree of knowledge" regarding such cases. One of the plaintiff's reasons of appeal, the only one sufficiently specific to comply with our rules, is that the trial court erred in failing to hold that on the face of the record the appeal of the defendant was without merit. Claims of error apparent on the record may be presented without a finding. Practice Book, 336. The appeal, without a finding, presents the single question whether the trial court upon the face of the record was in error in granting the motion. Dolbeare v. Dolbeare, 124 Conn. 286, 288, 199 Alt. 555. It is properly before us to that extent, but must be determined solely upon the record, that is, the papers forming a part of the file, including the finding in the defendant's appeal and her assignments of error, but not the evidence taken at the trial of the divorce action. The motion to erase is denied.
John J. Casale, with whom, on the brief, was George T. George, for the appellant (plaintiff).
D. Harold Cotter, for the appellee (defendant).
After a contested trial the plaintiff was awarded a decree of divorce on the ground of intolerable cruelty and custody of the children, and subsequently the court granted the defendant's motion that the plaintiff be directed to pay her a sum by way of an allowance to prosecute an appeal. The evidence is not before us but the portions of the finding unattacked by assignments of error disclose adequate grounds to support the conclusion unless the acts of cruelty appear, on the whole record, to be due to paranoia rather than to a wilful intent to inflict injury. The memorandum of decision indicates that this may be the case. The defendant is entitled to a review of this situation. The questions of laches and of the effect of a claimed offer of collusion are also proper grounds of appeal as far as appears from this record. It is to the interest of the state that all questionable features of a suit for divorce should be fully investigated. Dennis v. Dennis, 68 Conn. 186, 197, 36 A. 34. We cannot say that the trial judge abused his discretion in granting the motion. Valluzzo v. Valluzzo, 104 Conn. 152, 156, 132 A. 406.