In Mendez v. Mendez, 160 Conn. 237, 278 A.2d 795 (1971), an appeal was taken by the defendant mother and the state from a judgment granting the plaintiff a divorce.Summary of this case from Durso v. Misiorek
The referee, to whom the plaintiff's divorce action was referred, found that the plaintiff was not the father of two children born to the defendant after the parties had permanently separated and consequently rendered judgment granting the plaintiff a divorce on the ground of adultery. The named defendant, the only real defendant, took no active part in the present appeal. Because it did not appear from the finding that the referee made any ruling on the claim of presumed legitimacy sought to be raised by an apparent stranger to the proceedings, the record presented no justiciable issue.
Argued December 1, 1970
Decided January 7, 1971
Action for a divorce, brought to the Superior Court in Hartford County and referred by the court to Hon. Abraham S. Bordon, state referee, who, sitting as the court, rendered judgment of divorce for the plaintiff and that there was no issue of the marriage, from which the defendant and the state of Connecticut appealed to this court. No error.
James M. Higgins, assistant attorney general, with whom, on the brief, were Robert K. Killian, attorney general, and Francis J. MacGregor, assistant attorney general, for the appellant (state).
Kenneth D. Fernino, for the appellee (plaintiff).
The plaintiff brought this action against the defendant seeking a divorce on the grounds of intolerable cruelty and adultery. He alleged that there are no minor children of the marriage and that neither he nor the defendant is receiving assistance from any town or state agency. Consequently, there was no necessity, under Practice Book 374 as then in force, to serve a copy on the welfare commissioner and no such service appears to have been made.
An answer was filed by Michael H. Heneghan, who had appeared as attorney for the defendant, and, on the plaintiff's motion, the case was referred to a state referee for hearing. Subsequently, the defendant filed a cross complaint which was withdrawn at the time of the hearing and the defendant did not contest the plaintiff's claim for a divorce on the ground of adultery. The court found that two children had been born to the defendant in 1966 and 1968 after the parties had permanently separated in 1964 and that the plaintiff was not the father. Judgment was rendered granting the plaintiff a divorce on the ground of the defendant's adultery "on divers days between December 14, 1963 and November 21, 1966" and finding that there are no minor children issue of the marriage.
The present appeal from the judgment purports to be taken by "the defendants, Judy Mendez and the State of Connecticut." The appeal, the request for a finding, and the draft finding, however, are by "The Defendants, Robert K. Killian, Attorney General, By Francis J. MacGregor, Assistant Attorney General, Their Attorney." The brief is submitted by "Defendant Robert K. Killian, Attorney General, by Francis J. MacGregor Assistant Attorney General."
The claim sought to be raised is that the presumption of legitimacy applies and that no testimony of the plaintiff tending to illegitimatize the children was admissible in evidence.
There are several reasons why this record presents no justiciable issue. First of all, there is nothing in the record to show that the attorney general has any proper standing in the case. Neither the state nor the attorney general was named as a party in the complaint and no order of court joining either as a party appears to have been made. The named defendant, the only real defendant, has taken no active part in the appeal. Second, it does not appear from the finding that any objection to any evidence was made at the trial. Practice Book 648. Quite obviously, we cannot review a ruling which is not shown to have been made by the trier. State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689. Third, it is impossible to learn from the finding what facts concerning the illegitimacy of the children came from the plaintiff's own testimony.