Bailey v. BaileyBailey v. Bailey
- Reporters:
- Before:
- Cheney
Plaintiff moves for an order requiring the clerk to docket as a judgment the arrears of unpaid alimony awarded her by a judgment decreeing a separation from the bed and board of defendant entered in Onondaga county January 3, 1918. By that judgment the defendant is directed tо pay the sum of ten dollars per week in weekly payments from the date of the judgment for the support and maintenance of the plaintiff. Plaintiff’s affidavit states that none of thаt alimony has been paid.
It would appear to be the settled practice in this stаte that the plaintiff in a matrimonial action is not confined to the remedies provided by section 1171 of the Civil Practice Act for the collection of alimony awarded by а judgment, that is, sequestration of property or contempt proceedings, but may alsо proceed by execution as in an ordinary judgment. An execution cannot be issued until thе sum due is docketed as a judgment, and as the clerk is without authority to docket a judgment in a matrimonial action without direction of the court, the proper practice is tо apply to the court for an order directing such docketing. Thayer v. Thayer, 143 App. Div. 268; Jacobson v. Jacobson, 85 Misc. Rep. 253.
Defendant claims and рlaintiff admits that shortly after the entry of the judgment of separation, and on March 22, 1918, the plaintiff and defendant effected a reconciliation and resumed *435conjugal relatiоns and continued to live together as husband and wife from March 22, 1918, until August 22, 1920. It is not claimed that any revоcation or modification of the judgment of separation was ever made by judiciаl decree.
Defendant claims that by reason of these facts the judgment of separation became a nullity, and that the right to collect alimony fell with it.
It was early held that thе rule of the ecclesiastical law of England, that a divorce a mensa et thoro only continued until the reconciliation of the parties, never became a part of the law of this state, and that our law of divorce was of purely statutory origin. Burtis v. Burtis, Hopk. Ch. 557. There has existed in that statutory law from an early period a method by which a judgment in a separation aсtion might be revoked. The present statute is section 1165 of the Civil Practice Act, which prоvides: “ Upon the joint application of the parties, accompanied with satisfactory evidence of their reconciliation, a judgment for a separatiоn, forever, or for a limited period, rendered as prescribed in this article, may be revoked at any time by the court which rendered it, subject to such regulations and restrictions аs the court thinks fit to impose.”
That is a re-enactment without change of section 1767 of thе Code of Civil Procedure, into which it was originally revised from the Revised Statutes, part 2, chаpter 8, title 1, section 56.
Until a decree of separation is revoked by an order оf the court rendering it, it is not affected by a reconciliation and matrimonial cohаbitation of the parties, and after a subsequent separation the provisions therein relating to alimony may be enforced. Jones v. Jones, 90 Hun, 414; Hobby v. Hobby, 5 App. Div. 496.
Defendant further claims that the resumption of mаtrimonial relations was the result of an agreement to the effect that the judgment of separation should be null, void and of no effect and was to be vacated and set аside. This the plaintiff denies.
It is immaterial whether or not such an agreement was made, as nо claim is made that it was ever carried into effect by an order of the court which granted the judgment. It is not competent for the parties to a matrimonial action by mere agreement between themselves to amend or revoke a judgment or even modify thе alimony provisions thereof. That can only be done in the manner provided by statute. Civil Prаctice Act, §§ 1165, 1170; Gewirtz v. Gewirtz, 189 App. Div. 483; Hallow v. Hallow, 200 id. 642.
But I think it should be held that the maintenance of the wife by the husband during the period thаt they lived together as husband and wife since the entry of the judgment was a payment *436of the installments of alimony accruing during that period, and that judgment should be docketed only for the unpaid portion of the alimony. The parties have agreed upon this amount at $1,200. The amount of the costs in the original judgment, amounting to $74.74, have already been docketed and can be collected by an execution issued thereon.
An order may be enterеd directing the clerk to docket as a judgment the unpaid alimony awarded by the judgment herein amounting to the sum of $1,200, and that execution issue therefor.
Ordered accordingly.