Schaefer v. Schaefer

Connecticut Superior Court

Schaefer v. Schaefer

217 A.2d 70, 26 Conn. Super. Ct. 224, 26 Conn. Supp. 224, 1965 Conn. Super. LEXIS 180

CourtConnecticut Superior Court

DecidedOctober 20, 1965

DocketFile 117426 F.R.

StatusPublished

This text of 217 A.2d 70 (Schaefer v. Schaefer) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schaefer v. Schaefer, 217 A.2d 70, 26 Conn. Super. Ct. 224, 26 Conn. Supp. 224, 1965 Conn. Super. LEXIS 180 (Colo. Ct. App. 1965).

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Opinion

Dube, J.

A decree of legal separation was had on June 12, 1963, in favor of the plaintiff. The parties have not resumed marital relations and continue to live separate and apart.

The defendant moves for a divorce after a decree of legal separation in accordance with § 46-30 of the General Statutes. The plaintiff objects to the granting of the divorce. The pertinent portions of § 46-30 read as follows: “At any time after the entry of a decree of legal separation, either party may petition . . . for a decree finally dissolving and terminating the marriage and, if the court finds that the parties have not resumed marital relations since the entry of the decree of legal separation, it may enter a decree finally dissolving and terminating the marriage . . . .”

It is apparent from the reading of the statute that in order to grant such a decree, dissolving and terminating the marriage, the court need only find that the parties have not resumed marital relations since *225 the entry of the decree of legal separation. Gombatz v. Gombatz, 20 Conn. Sup. 357, 359.

As between courts of law and equity, divorce falls within the cognizance of the latter, although technically it is a statutory action. Nevertheless, the relief granted is essentially equitable in its nature. Kelsall v. Kelsall, 139 Conn. 163, 167; German v. German, 122 Conn. 155, 161. The relief requested may be granted or denied in the discretion of the court, since the defendant was not entitled as a matter of right to a decree finally dissolving and terminating the marriage. Lee v. Lee, 145 Conn. 355, 360.

The plaintiff and defendant were married on January 20, 1962. The decree of separation was granted on June 12, 1963. The marriage was of short duration, and it does not appear that the parties will resume normal relationship. It would serve no reasonable purpose to keep the parties in a legal separation “a mensa et thoro.”

A decree may enter finally dissolving and terminating the marriage of the parties and affirming the existing orders for custody and support of the minor child.

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Dube, J.

A decree of legal separation was had on June 12, 1963, in favor of the plaintiff. The parties have not resumed marital relations and continue to live separate and apart.

The defendant moves for a divorce after a decree of legal separation in accordance with § 46-30 of the General Statutes. The plaintiff objects to the granting of the divorce. The pertinent portions of § 46-30 read as follows: “At any time after the entry of a decree of legal separation, either party may petition . . . for a decree finally dissolving and terminating the marriage and, if the court finds that the parties have not resumed marital relations since the entry of the decree of legal separation, it may enter a decree finally dissolving and terminating the marriage . . . .”

It is apparent from the reading of the statute that in order to grant such a decree, dissolving and terminating the marriage, the court need only find that the parties have not resumed marital relations since *225 the entry of the decree of legal separation. Gombatz v. Gombatz, 20 Conn. Sup. 357, 359.

As between courts of law and equity, divorce falls within the cognizance of the latter, although technically it is a statutory action. Nevertheless, the relief granted is essentially equitable in its nature. Kelsall v. Kelsall, 139 Conn. 163, 167; German v. German, 122 Conn. 155, 161. The relief requested may be granted or denied in the discretion of the court, since the defendant was not entitled as a matter of right to a decree finally dissolving and terminating the marriage. Lee v. Lee, 145 Conn. 355, 360.

The plaintiff and defendant were married on January 20, 1962. The decree of separation was granted on June 12, 1963. The marriage was of short duration, and it does not appear that the parties will resume normal relationship. It would serve no reasonable purpose to keep the parties in a legal separation “a mensa et thoro.”

A decree may enter finally dissolving and terminating the marriage of the parties and affirming the existing orders for custody and support of the minor child.

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Bluebook (online)

217 A.2d 70, 26 Conn. Super. Ct. 224, 26 Conn. Supp. 224, 1965 Conn. Super. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaefer-v-schaefer-connsuperct-1965.

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