Valluzzo v. Valluzzo

Curtis, J. The ultimate facts amply support the judgment, and unless they are conclusions that could not legally or logically have been drawn from the facts found, the judgment must stand. We are satisfied that these conclusions were, both legally and logically, supported by the facts found. The plaintiff, in brief and argument, claims that on the facts found she was entitled to a divorce for intolerable cruelty, and that such a conclusion was logically necessary because the defendant would not permit her to keep the baby to which she was so deeply attached; and further, that such refusal justified her in living apart from her husband. These claims are so obviously without merit that they do not justify discussion. There remains for consideration the appeal of the wife, the plaintiff, from the denial by the court, Hinman, J., of her motion, after judgment, for an allowance to defend. Such a motion necessarily relates to her defending by an appeal. In the special finding *155 relating to this matter, the court finds that the wife is without independent means, although able to provide for herself by her own exertions, and that the defendant has ample means to aid her in prosecuting her appeal. The expense necessary for the wife to carry on her own action for divorce or separation, or to defend the action against her for a divorce or annulment of the marriage, is usually allowed the wife; this is a recognized part of our procedure. Whether an allowance to defend should be allowed or not is within the sound discretion of the trial court. Keezer on Marriage & Divorce (2d Ed.) § 711* et seq. An allowance to defend may be ordered from time to time as the exigencies of the case may require. In making such an allowance the court will not ordinarily inquire into the merits of the action, for in matrimonial causes it is often said that a wife is a privileged litigant. Idem, § 713. If, however, it appears from the record on appeal that the appeal is wholly without merit, an allowance will not bejnade with which to prosecute the appeal. Friend v. Friend, 65 Wis. 412, 27 N. W. 34. In March, 1925, after trial and after a finding by the trial court had been filed, the plaintiff made an application for an allowance to defend. The defendant opposed an allowance on the ground that the appeal was without merit and not taken in good faith. The plaintiff, in support of her claim for an allowance, made this claim of law, that the court in determining the question of an allowance to prosecute an appeal, should confine itself to the consideration of whether or not the plaintiff in her complaint has a good cause of action and should not attempt to pass on the question of law involved in the appeal; that is, that the court should not consider whether or not, on the appeal *156 record, the appeal was without merit. The court overruled this claim and denied the motion. If the court had denied the motion because on its examination of the record on appeal, it ruled that on the face of the finding the appeal was without merit, its action would have been a legal exercise of its discretion, from which no appeal would lie unless its exercise of discretion was unreasonable. An examination of the memorandum of the court on this motion discloses that the court denied the motion for another reason, which it states as follows: “However' she proceeded to trial without so moving [for an allowance] and makes this 'motion only after judgment against her and pending, and apparently for the purpose of aiding, an appeal from this judgment to the Supreme Court of Errors. The good faith as well, as the merit of this appeal is emphatically questioned by counsel for. the husband. These questions will be, incidentally, resolved by the outcome of the appeal and the matter of allowance may well await this result. The motion is denied, without prejudice to its renewal if justified by the result of the appeal.” A memorandum of decision may be read by us, where necessary to understand a ruling clearly. Rowell v. Stamford Street Ry. Co., 64 Conn. 380, 30 Atl. 131. The plaintiff filed the following reason of appeal: “6. The court erred and mistook the law in holding that the granting of an allowance to properly prosecute her appeal from the decision of the trial court should await the decision of the Supreme Court of Errors upon the said appeal.” The action of the trial court set forth above was a refusal to entertain and definitely to pass upon the motion for an allowance, and was erroneous. The trial court should have made an allowance, or denied it and definitely ruled on the claim that, upon *157 the appeal record, the appeal was without merit, thus giving the plaintiff an opportunity to attack that conclusion. Under the court’s ruling as it appears in the excerpt from the memorandum, the plaintiff was not given her day in court upon that question. There is no error on the appeal from the judgment. There is error on the motion for an allowance, and the cause is remanded with direction to the Superior Court to allow the plaintiff a reasonable sum for the prosecution of her appeal. In this opinion the other judges concurred.