Danielson v. Danielson

389 A.2d 750, 174 Conn. 427, 1978 Conn. LEXIS 852

• Court: Supreme Court of Connecticut
• Decided: March 14, 1978
• Status: Published

Opinions

Bogdanski, J.

This is an appeal by the defendant, Helen Danielson, from a judgment dissolving the marriage of the parties, awarding custody of the minor children to the plaintiff, and assigning the defendant’s interest in certain real property to the plaintiff. The court awarded the defendant mother the right of reasonable visitation to her minor children but denied her alimony.

The record reveals the following facts: The parties intermarried on December 26, 1964, at New Haven. Two minor children were born of the marriage, Julie Danielson, born May 13, 1968, and Karen Danielson, born February 19, 1973. When the parties first married, they lived in Texas and in 1970 moved to Killingworth, Connecticut. For a period of about three years the marriage was quite rocky, and a separation agreement was contemplated, but the parties managed to stay together. On July 18, 1975, the plaintiff helped the defendant wife and the two children move to California where they remained to live while the plaintiff returned to Killingworth. The defendant wife is employed in San Diego, California, at a gross salary of $100 per week. The plaintiff husband lives in Connecticut and has a gross salary of about $950 per week. Because the plaintiff is an airline pilot, he travels free. On May 10, 1976, the plaintiff brought this action for a dissolution of the marriage. The defendant filed her answer and cross complaint. The trial court awarded custody of the children to the plaintiff father and granted the defendant the right of visitation. The court also decreed a dissolution of the marriage of thirteen years.

The defendant first claims that the court did not have jurisdiction over the custody of the children. Jurisdiction to award custody is acquired by virtue of the original action for dissolution and is incidental to it. Dunham v. Dunham, 97 Conn. 440, 444, 117 A. 504. The defendant filed an answer to the plaintiff’s complaint and a cross complaint seeking the dissolution of the marriage, alimony, and custody and support of the minor children. She appeared in the action both in person and by counsel. The defendant by her actions thus placed the entire marital status of the parties, including the custody of the children, before the court. Scott v. Furrow, 141 Conn. 113, 118, 104 A.2d 224; Krasnow v. Krasnow, 140 Conn. 254, 258-59, 99 A.2d 104.

The only other issue which we find necessary to address on this appeal is whether the court, by denying the defendant’s claims for alimony, effectively denied her visitation rights. The defendant contends that the visitation rights granted her are more illusory than real because it is impossible for her to exercise those visitation rights in view of the fact that her net income is less than $100 per week and the fact that she lives across the continent from the children.

“Visitation rights are not wholly unrelated to the welfare of the children of divorced parents. Minor children are entitled to the love and companionship of both parents. For the good of the child, unless a parent is completely unfit, a decree should allow a parent deprived of custody to visit or communicate with the children.” Raymond v. Raymond, 165 Conn. 735, 741, 345 A.2d 48. If circumstances place a financial burden on the parent in relation to visitation, the court may consider a modification of the financial arrangement if in the best interests of the children. Where visitation rights are affected, a court has the power and duty to safeguard those rights. Ibid.

There was no finding by the court that the defendant mother was an unfit parent. There was no claim made nor any finding by the court that the defendant mother was chargeable with neglect in raising the children during the time of the marriage. Indeed, as recently as July, 1975, the plaintiff helped the defendant and the two children move to California to live while he returned to Connecticut. Moreover, in his response to divorce proceedings initiated by the defendant in California subsequent to the move, the plaintiff requested that custody of the children be granted to the mother.

On the basis of the record before us, consideration should have been given to the interests of the minor children in the companionship and love of the mother and to the natural right of the mother to visit with the children, and provisions should have been made for either sufficient alimony or travel arrangements so as to make her visitation right a reality. “For the good of the child, unless a parent is completely unfit, a decree should allow a parent deprived of custody to visit or communicate with the children.” Raymond v. Raymond, supra, 741. In view of the apparent financial burden on the parent in relation to visitation, a further hearing is required limited to a consideration of a modification of the financial arrangement as is found to be in the best interests of the children.

There is error in part, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Loiselle, Longo and Speziale, Js., concurred.