Opinion
The finding of the net worth and the annual income of the defendant was not supported by the evidence and the judgment awarding the plaintiff $80 per week for support cannot stand. Orders made pursuant to the rules of discovery are within the sound discretion of the court. In the present action for support, the court did not abuse its discretion in granting a default against the defendant for failure to obey an order to produce his bank vouchers for a limited period. Were there is a default judgment and nothing more, the cause of action and every element necessary to establish it are admitted and all that remains is to fix the amount of damages. The circumstances leading up to the separation of the parties were irrelevant except as bearing on the amount of the award.
Argued March 4, 1948
Decided May 6, 1948
ACTION claiming an order for support and other relief, brought to the Superior Court in New Haven County at Waterbury where the defendant was defaulted and the case was heard in damages by the court, Mellitz, J.; judgment for the plaintiff and appeal by the defendant. Error and new trial ordered.
The appellee filed a motion to erase the appeal which was denied.
PER CURIAM. In this action the court granted a motion of the plaintiff for a disclosure in which several interrogatories were stated. The defendant answered some of them but refused to answer others, although ordered to do so by the court. The plaintiff made a motion for judgment by default, and the defendant filed an answer to it, which the court subsequently expunged. The motion for a default was granted. There followed a hearing in damages and the court rendered a judgment granting the plaintiff substantial relief. The defendant thereafter filed an appeal and, after the court had made a finding, an assignment of errors. These included claimed errors in expunging the answer to the motion for default and granting the motion, and various errors claimed to have occurred in the proceedings resulting in the final judgment for the plaintiff. The principal contention of the plaintiff in support of the motion to erase the appeal is that it is essentially taken from the judgment of default and no appeal lies from such a judgment. As the motion is addressed to the appeal in its entirety, it must be denied if the appeal is sustainable on any grounds. Whether the defendant can appeal from the judgment by default need not now be decided. If he cannot do so, at least he can appeal from the final judgment awarding relief to the plaintiff; Antman v. Connecticut Light Power Co., 117 Conn. 230, 239, 167 A. 715; Practice Book 372; and to that extent the appeal is clearly valid. While the appeal merely states that the defendant "appeals to the Supreme Court of Errors and states that he is aggrieved by the decision of the court on questions of law arising during the trial," the departure from the approved form for such an appeal is too inconsequential to justify dismissing it. The motion to erase is denied.
J. Warren Upson, with whom, on the brief, was Lawrence L. Lewis, for the appellant (defendant).
John H. Cassidy, for the appellee (plaintiff).
This is an action for support brought by a wife separated from her husband. The defendant suffered a default and the case was heard in damages. The court awarded the plaintiff $80 per week, and the real basis of the defendant's appeal is a claim that this is excessive in view of his financial condition.
The court found that the net worth of the defendant was $60,000 and that his annual income from salary and dividends was $11,102. This finding is attacked and, unfortunately for the plaintiff, cannot be sustained. The major item of capital assets is a ninety-six-acre farm, stocked and well equipped. An appraiser, offered by the plaintiff, valued the real estate at $20,600. The court was not bound by this estimate, but there was no other evidence to sustain the finding that the farm was worth $30,000 or $40,000. The only evidence of the actual value of the personal property on the farm (income tax return for 1946) was that it was worth about $6,000 Stockholdings were valued at a little over $1000. There was no evidence of any other property of substantial amount. The income figure included a salary item of $3000. This was formerly received by the defendant but the uncontradicted evidence was that this payment ceased after 1945. These discrepancies are too large to pass unnoticed. It is apparent that the trial court did not believe the defendant, but that would not justify the increased values placed upon his property and income without supporting evidence. See State v. Poplowski, 104 Conn. 493, 495, 133 A. 671. It may be that on a new trial the same result will be reached; Hein v. Hein, 127 Conn. 503, 506, 18 A.2d 374; but the judgment based on these facts, erroneously found, cannot stand. Botticelli v. Winters, 125 Conn. 537, 541, 7 A.2d 443; Conn. App. Proc. 175.
In view of this conclusion, only two other assignments of error are noticed. A default was entered under Practice Book, 75, for failure to disclose facts and produce documents for inspection. The record may be summarized as follows: The pleadings were closed October 10, 1945. On November 20, the plaintiff filed a motion under Practice Book, 76, asking that the defendant be ordered to produce, among other things, his bank vouchers for the period from January 1 to November 1, 1945. This motion was granted March 26, 1946. On November 20, 1945, the plaintiff also filed a motion for disclosure, under Practice Book, 72 and 73, containing twenty-four written interrogatories. Most of these were answered on January 24, 1946, and on March 26, 1946, the defendant was ordered to answer three more, which asked for the net profit and list of stockholders of two corporations in which the defendant was interested. On June 15, 1946, the plaintiff filed her motion that the defendant be defaulted under Practice Book, 75, for failure to comply with the orders of court as to the matters set forth above. The defendant filed an answer to this motion which was expunged without memorandum on July 11, 1946, and the default was entered the same day.
If 72 to 78 of the Practice Book, relating to disclosure, are read together, it is apparent that the procedure is intended to be speedy and summary. If the default judgment was proper on any of the grounds alleged, it should stand.
Practice Book, 75, provides in part: "If a party has failed to . . . comply with any order for disclosure or inspection, the court, on motion, may default the party in fault." The plaintiff is suing for support. It is obvious that the financial condition and transactions of the defendant are material to her cause of action, and the order that he produce his vouchers for a limited period was reasonable on its face. The answer to the motion for a default was unnecessary and was properly expunged. The filing of a pleading addressed to an interlocutory motion is a procedure not recognized in our present practice. See Ragali v. Holmes, 111 Conn. 663, 665, 151 A. 190. Orders made pursuant to the rules on discovery are, speaking generally, within the sound discretion of the trial court. Katz v. Richman, 114 Conn. 165, 171, 158 A. 219; May v. Young, 125 Conn. 1, 10, 2 A.2d 385. Its discretion was not abused in this instance. This conclusion makes it unnecessary to consider the propriety of its further order that the defendant disclose matters with reference to the corporations of which he was an officer and stockholder. The entry of the default was proper.
At the outset of the trial the plaintiff testified, over the defendant's objection, to the conduct of the defendant over a period of five or six years prior to their separation. The objection was based on the claim that the hearing was in damages and that the evidence offered was immaterial and irrelevant. Where there is a default judgment and nothing more, the cause of action and every element necessary to establish it are admitted, and all that remains is to fix the amount of damages. Lamphear v. Buckingham, 33 Conn. 237, 249. The line should not be drawn too closely in domestic relations matters, but, treating the general objection generally, the circumstances leading up to the separation of the parties were irrelevant except as they might be involved as elements to be considered in fixing the amount of the award.