Schilcher v. Schilcher , 124 Conn. 445 ( 1938 )

The judgment appealed from awarded a divorce to the plaintiff on the ground of adultery and found the issues for the plaintiff on the defendant's cross-complaint for a divorce on the ground of intolerable cruelty. The facts were found by a state referee and the assignments of error relate to the rulings of the court on the remonstrance to the report. There was also a supplemental appeal based on the denial of motions for alimony, support and allowance to defend.

The referee found the following facts: The parties intermarried January 22d 1935, and had resided in this State for more than three years before the date of the complaint. They have no minor children. They did not live together as man and wife and kept their marriage secret for some time. The defendant gave birth to a child on September 24th, 1936. There had been no sexual relations between the parties after June, 1935. The issues on complaint and cross-complaint are found for the plaintiff.

Among the grounds of remonstrance was one to the effect that the referee failed to incorporate in the report a ruling on evidence. The plaintiff demurred and the demurrer was sustained. The ruling was correct. The remonstrance was not in proper form for the determination of a ruling on evidence. The note to Form 555 E, Practice Book, p. 354, provides that the remonstrance should state the rulings of the committee as they are stated in findings (see Form 646, Practice Book, p. 407; 359, P. 105). Ferguson v. Cripps, 87 Conn. 241, 247, 87 A. 792; Seymour Trust Co. v. Hershowitz, 103 Conn. 532, 536, 131 A. 399.

The remonstrance alleges that certain facts were found without evidence. Among them was the fact that for some fifteen months before the birth of a child to her the defendant and plaintiff had had no sexual relations. There was substantial evidence to that effect. Had the defendant intended to raise the point pressed in her brief — that the evidence was not sufficient because of the presumption that children born in wedlock are legitimate — the remonstrance should have so stated. The allegation that the fact was found without evidence did not fairly raise that issue. The memorandum of decision of the trial court in sustaining the demurrer to the remonstrance indicates that it did not understand this to be the defendant's claim.

The claim of the defendant that the referee failed to find adultery and that it was beyond the power of the court to infer it under the doctrine of Brady v. Barnes, 42 Conn. 512, 517, and Antonata v. Antonata,85 Conn. 390, 393, 82 A. 967, is without merit. The complaint alleged adultery and the answer denied it. The referee found the issue thus joined for the plaintiff.

The defendant, subsequent to judgment, filed a supplemental appeal because of the denial of her motions for counsel fees, alimony pendente lite, and support of a minor child. The court denied the motions on the ground, among others, that the financial situation and resources of the parties were not such as to warrant granting them. No change can be made in the finding which will materially affect this conclusion. Under the circumstances disclosed by this record, we cannot say that this action was an abuse of discretion. Valluzzo v. Valluzzo, 104 Conn. 152, 155, 132 A. 406.

There is no error on either appeal.

In this opinion the other judges concurred.