245 A.D. 91 | N.Y. App. Div. | 1935
The action is by the plaintiff against her husband for separation on the ground of abandonment and for suitable provision for support. The court found in favor of the plaintiff on the issue of abandonment and its determination in this respect is not challenged on this appeal. The court also found in the plaintiff’s favor on the question of jurisdiction by reason of the residence of both parties in this State and county at the time of the commencement of the action and also because both parties
We are, however, of the opinion that the court had no power to include in the judgment of separation a money judgment against the defendant for the amount of accrued and unpaid temporary alimony. On May 28, 1928, shortly after the institution of the action, the court, upon application of the ■ plaintiff, had made an order awarding to her alimony pendente lite at the rate of $75 per week. The amount of such accumulated and unpaid alimony to the date of the entry of final judgment was $6,740, and thereby it was “ ordered, adjudged and decreed that the plaintiff Charlotte Doncourt * * * do recover of the defendant Kenneth Don-court * * * the sum of * * * $6,740 * * * and that the plaintiff have execution therefor.” We find no authority of statute or decision for the entry of a judgment for unpaid installments of temporary alimony. Although permanent alimony unpaid under a final decree in a matrimonial action is in the nature of a judgment debt which may, upon direction of the court, be docketed as a judgment (Civ. Prac. Act, § 504; Thayer v. Thayer, 145 App. Div. 268), different principles apply to unpaid installments of temporary alimony. (Jacobson v. Jacobson, 85 Misc. 253; affd., 168 App. Div. 900; McCormack v. McCormack, 241 id. 762; Gallagher v. Gallagher, 245 id. 711; Percival v. Percival, 14 N. Y. St. Repr. 255; Straus v. Straus, 67 Hun, 491.) The reason for the distinction is said to be that authority to award temporary alimony (Civ. Prac. Act, § 1169) and the means for its enforcement (Civ. Prac. Act, §§ 1171, 1171-a, 1172) rest exclusively upon statutory provisions which are not to be extended by implication. (Beadleston v. Beadleston, 103 N. Y. 402.) Since the statute which creates the right also provides for relief by contempt and sequestration, these will be deemed to be the remedies, and the only remedies, by which it is enforcible. (Weber v. Weber, 93 App. Div. 149; Mercer v. Mercer, 73 Hun, 192.)
The court, it is true, may in its discretion provide by final judgment that alimony be paid nunc pro tunc from the time of the commencement of the action (McCarthy v. McCarthy, 143 N. Y. 235; Harris v. Harris, 259 id. 334), but nothing of the kind was attempted here. On the contrary, it is recited in the findings that the plaintiff at the trial moved for judgment against the defendant “ in the amount in which this defendant might be in arrears in the payment of such [temporary] alimony to the plaintiff to the date
The judgment should be modified by ehminating the provision directing judgment in favor of the plaintiff and against the defendant in the sum of $6,740, and as so modified affirmed, without costs.
Martin, P. J., Merrell and Townley, JJ., concur; Glennon, J., dissents and votes to affirm.
Judgment modified by eliminating the provision directing judgment in favor of the plaintiff and against the defendant in the sum of $6,740, and as so modified affirmed, without costs. Settle order on notice.