Opinion
It is the primary obligation of a husband to support his wife. In an action for support, an order for support pendente lite and an allowance to prosecute is ordinarily justified upon proof of the marriage and of the husband's ability to pay. If the wife's good faith is challenged, the court should hear evidence on this feature but need go no further than to be reasonably satisfied that, prima facie, the action is bona fide. The good faith of the plaintiff wife was challenged by the offer of a separation agreement containing a provision for the release of the defendant husband from further liability for support. The wife claimed, however, that the contract was not binding upon her because it had been broken by the husband. The existence of the contract did not necessarily negative good faith, and its admission in evidence would have opened up a wide field of inquiry going to the basis of the wife's cause of action for support. There was no abuse of discretion in refusing to admit the contract in evidence at the hearings on the motions for support pendente lite and an allowance for litigation.
Argued May 2, 1956
Decided May 29, 1956
Action for reimbursement for past support and claiming an order for future support, brought to the Court of Common Pleas in New Haven County where the court, LaMacchia, J., ordered the payment of support pendente lite and an allowance to prosecute, from which action the defendant appealed. No error.
The appellee filed a motion for an order vacating the stay of execution on an order for an allowance to defend the appeal, which was denied.
INGLIS, C.J. In this suit for support the trial court on June 29, 1955, ordered the defendant to pay the plaintiff $27.50 weekly during the pendency of the action. From this order the defendant has appealed. On July 21 the trial court ordered that the defendant pay the plaintiff $650 as an allowance to defend the appeal. The defendant then, pursuant to Practice Book 403, filed notice that he would include in the appeal which was already pending an assignment of error directed at the order for an allowance to defend. By the present motion the plaintiff prays this court to enter an order directing the trial court to order the defendant to pay the allowance forthwith or to issue execution against him for it. No motion for a termination of the stay of execution has been made to the trial judge. Both parties have taken it for granted that the appeal from the allowance to defend operated to stay the enforcement of that order under the provisions of Practice Book 411. We shall therefore assume, without deciding, that that is the case. If it be true that the portion of 411 relating to the stay of proceedings to enforce a judgment applies to stay proceedings to enforce an order for an allowance to defend, it must be true that the other provisions of the section, those relating to the termination of the stay, are likewise applicable. It follows that the trial judge who tried the case has the power to terminate the stay if he is of the opinion that the appeal "is taken only for delay or that the due administration of justice requires him to do so." In passing on the question whether the due administration of justice requires a termination of the stay, the judge should bear in mind that under ordinary circumstances due administration of justice requires that a wife's defense of an appeal from a judgment in her favor enforcing her marital rights should be financed by the husband. Marino v. Marino, 136 Conn. 617, 621, 73 A.2d 339. It should also be borne in mind that in many cases, in order to provide an adequate defense of an appeal, the allowance must be forthcoming in advance of the time when the wife's attorney has to prepare and become responsible for the expense of printing his brief. It does not follow from what we have said that this court is in a position to order the trial court to terminate the stay of execution, as the motion now before us prays. The only provision in the law vesting in this court any control over a stay of execution on appeal is that contained in 411 of the Practice Book. That section reads in part: "The sole remedy of any party desiring this court to review an order terminating a stay of execution shall be by written motion . . . ." From this it is clear that this court is empowered to act only by way of review of some action of the trial court in terminating a stay. If it be claimed that Practice Book 435, giving this court supervision of proceedings on appeal, is applicable, under that section this court can, in a case such as this, intervene only to vacate or modify an order made by the trial court. Until the trial judge has either granted or denied a motion to terminate the stay of execution on the allowance to defend, this court is powerless to act with reference to the matter. The motion is denied. In this opinion the other judges concurred.
Edward S. Snyder, with whom was Robert J. Woodruff, for the appellant (defendant).
Charles G. Albom, with whom was Edward L. Reynolds, Jr., for the appellee (plaintiff)
The plaintiff and the defendant were married in 1914. They have been living apart since 1932. The plaintiff brought this action claiming support from the defendant and filed a motion for an allowance to prosecute and for support pendente lite. The trial court, after a hearing, granted an allowance of $50 to prosecute and ordered support pendente lite in the amount of $27.50 each week. The defendant appealed to this court. Thereupon the plaintiff moved for an allowance to defend the appeal, and the trial court, after a second hearing, ordered the defendant to pay the plaintiff a fixed allowance. The defendant appealed from this order.
At both hearings, the defendant offered in evidence a contract purportedly entered into by the parties in June, 1954. This contract provided that the parties should live apart, that the plaintiff would release the defendant from all further liability for her support during her natural life, that a divorce action brought by the defendant against the plaintiff would be withdrawn and her attorney fees in the amount of $250 would be paid, that the defendant would name the plaintiff irrevocably as beneficiary in certain insurance policies and continue them in force, and that he would accord to her other insurance benefits. At both hearings the trial court refused to admit this contract in evidence. These rulings raise the decisive issue on the appeal.
The defendant claims that the plaintiff's action for support is one in equity, that by refusing to abide by the contract she comes into court without clean bands and that therefore her motions should be denied. See Edson v. Edson, 138 Conn. 701, 703, 88 A.2d 371. A motion for an order for support pendente lite or for counsel fees is purely an interlocutory proceeding. Whether the motion should be granted rests within the sound discretion of the court, and its decision will not be disturbed unless it clearly appears that this discretion has been abused. Krasnow v. Krasnow, 140 Conn. 254, 262, 99 A.2d 104; England v. England, 138 Conn. 410, 414, 85 A.2d 483; Keezer, Marriage Divorce (3d Ed.) p. 676. The question is essentially whether the moving party has a prima facie case and is suing in good faith. Marino v. Marino, 136 Conn. 617, 619, 73 A.2d 339. Under our law it is the primary obligation of the husband to support his wife. General Statutes 7308; Cantiello v. Cantiello, 136 Conn. 685, 689, 74 A.2d 199; Edson v. Edson, supra. For this reason an order for support or counsel fees ordinarily is justified upon proof of the marriage and the husband's ability to furnish support or pay counsel fees. If the wife's good faith is challenged, the court should hear evidence on this feature but need go no further than to be reasonably satisfied that, prima facie, the wife's action is bona fide.
The question which was excluded was this: "Was there any agreement on her [the plaintiff's] part to relinquish you [the defendant] from any further support?" Counsel for the defendant already had had marked for identification a paper purporting to be the contract discussed heretofore. The question was objectionable because, referring as it did to the contract, the written document was the best evidence of what it contained. But that aside, in discussing the offer, counsel for the plaintiff stated that the contract could not bind her because the defendant had failed to comply with its terms. Under these circumstances, if the contract had been admitted, the court would have been placed in the position of having opened a wide field of inquiry going to the basis of the cause of action. The validity, legal effect and performance of the contract by the parties would be in issue. Such an inquiry was unnecessary and improper for a determination of the motions. 448 The legal effect of the contract as a defense to the plaintiff's claim was a matter for a trial on the merits. The existence of the contract did not necessarily negative the plaintiff's good faith in bringing the action. The trial court did not abuse its discretion in refusing to admit the contract in evidence.
The other rulings challenged by the defendant were proper and require no discussion.