11 N.Y. 501 | NY | 1862
This controversy, as like cases are apt to-be, has been bitter and protracted. Twelve years since the wife brought her action against the husband for a divorce on the ground of adultery; and for over eleven years she has had the verdict of a jury convicting.him of the offence, and the judgment of the court dissolving the marriage. During this latter period the controversy has been principally in respect to alimony, a mere incident of the judgment. For more than ten years the plaintiff has been divorced from the defendant, and at liberty to marry again; yet we are now called upon to review the judgment of divorce, and if a merely technical error shall be discovered in the protracted trial of the issues of adultery of the defendant or plaintiff, to reverse such judgment. Six years had elapsed from the affirmation of the judgment by the general term of the Superior Court, before this appeal was brought; and as the judgment for a divorce was a final and perfect one, and the “ further decree or order” for alimony, not any part of it, or a necessary consequence of such judgment, but resting in the discretion of the court, and the judgment not having been appealed from within two years, we should probably have dismissed the appeal a term or two since when a motion to dismiss it was made, had the law regulating appeals to this court been the same as originally enacted in the Code. .In 1857, however, the provision in respect to appeals was so amended as to authorize an appeal to be taken “ within two years after the judgment shall be perfected, by filing the roll thereof, and entering the same in the judgment book, in the proper clerk’s office ” (Ch. 723, of 1857, § 18), and in 1858, it was still further amended so as to allow an appeal to be taken “ within two years after the judgment shall be perfected by filing the judgment roll.” (Ch. 306, of 1858, § 14.) The judgment roll in this case was not filed, as would seem until March, 1862, and the defendant had two years from the latter date within which to appeal, and before a review in
A preliminary point made by the defendant is, that the Superior Court had not jurisdiction of the action. This point was first raised on appeal to the general term, but if well taken .is available at any stage of the suit. It proceeds on the ground that the legislature was incompetent to confer, and, in fact, has not conferred, jurisdiction in divorce cases on the Superior Court. I think the ground is not maintainable. During our colonial existence, and for more than ten years after the colony became a state, there was no authority in any court of this state to grant a divorce. In 1787,'the legislature conferred authoritv upon the Court of Chancery to grant divorces in cases of adultery. This continued to be the only law until the revision of 1813, when the legislature made a new and extensive provision for divorces, and widening the jurisdiction of the Court of Chancery.
It was competent for the legislature to have conferred the jurisdiction upon an existing court or to have created one having powers as to divorce cases similar to the ecclesiastical courts of England. The Constitution of 1821 imposed no restriction on the power of the legislature in this respect. In the Revised Statutes, while continuing the authority in the Court of Chancery on matters of divorce, the legislature adopted a system in many respects new, and more comprehensive, and to some extent regulating the practice in that class of cases. The tendency of legislation from the beginning was to invest the court of equity with an authority over a subject that in England belonged exclusively to the spiritual courts and to Parliament. Thus the law continued until 1846, when the Constitution abolished the Court of Chancery, and
By no proper construction óf the Constitution of 1846, can it be deemed to have vested in the- Supreme Court, as successor of the Court of Chancery, the whole jurisdiction as to divorce cases, without any authority in the legislature to confer it on any other tribunal. The legislature was without doubt competent to vest such jurisdiction in the Superior Court, and if the proceeding to obtain a divorce is an action within the meaning of that word, as used in the Code (and this admits of no, question) then it has exercised the power in a case where the defendant resides or is personally served with the summons within the city of New York. The jurisdiction of the Supreme Court is not taken away or interfered with in this class of actions, but the legislature has chosen to confer a limited concurrent jurisdiction-on the Superior Court.
The complaint charged the defendant with having committed adultery with persons' named, and also at specified times and places with persons whose names were unknown to the plaintiff. The defendant by his answer, scarcely put his guilt in issue. He denied that he committed adultery with any or either of the women mentioned and referred to in said complaint, at any or either of the times and places stated in said complaint.” This is hardly more than putting in issue the act of the commission of.adultery at the times and .places stated. The burden of 'the answer consisted in recriminatory charges of adultery of the plaintiff in defence and bar of the action. In December, 1850, the issues as to the adultery of the defendant and also of the plaintiff were ordered by the court to be tried by a jury. Subsequently, and before the trial was had, the Code was amended by directing that an issue of fact in an action for a divorce from the marriage contract
The result of the trial of the issues, as has been said, was a conviction of the defendant and an exculpation of the plaintiff from the charge of adultery. The defendant did not complain that the verdict of the jury was unsupported by the evidence, or ask for a new trial on the merits; but contented himself with appealing from the judgment for a divorce subsequently rendered at special term, and asking a reversal thereof, exclusively on the ground of alleged errors of the judge in admitting and rejecting evidence on the trial of the issues of' fact, and of the court in the award of alimony.
It was insisted that the same principles upon which a court of law formerly proceeded in granting or refusing a new trial should be applied to the case; and if evidence had been rejected
[The learned judge here examined, seriatim, the several decisions of the court insisted on in the points of the defendant’s counsel, as erroneous. This elaborate examination is omitted, as all the judges concurred in the opinion that the trial was to be reviewed, not as upon a strict bill of exceptions, but upon the principles on which a court of equity examined the trial of a feigned issue awarded for the information of its own conscience. His conclusions were, that, tested by the strict rules which a court of law would apply in considering the objections, there were but two or three that were tenable, and these were unimportant as affecting the general result.]
These are all the rulings of the judge on the trial of the issues of fact urged as errors by the defendant’s counsel in his
There is an incidental branch of this controversy that has elicited much feeling and occupied a large share of the attention of the courts. ' The statute provides, that if a wife is the complainant and a decree dissolving the marriage on the' ground of adultery be pronounced, the court may make a further decree or order against the defendant compelling him “ to provide such suitable allowance to the complainant for her support, as the court shall deem just, having regard to the circumstances of the parties respectively.” (2 R. S., 145, § 45.) On the trial of the issues of fact the question was put to the jury, what annual amount of alimony ought to be allowed to
The reference was ordered in July, 1856, at which time the ' plaintiff was on her way from California to Australia, and she did not - return to this State until December, 1858. Proceedings on the reference were commenced in May, 1859, and were continued until December of that year. In December, 1859, the referee filed his report and finding of facts, together with the testimony taken before him; and in May, 1860, the special term made an order that the defendant pay to the plaintiff four thousand dollars a year for her support from the commencement of the action, deducting therefrom the sum of $2,150, paid for alimony pendente lite. On appeal to the general term, the order was affirmed.
With respect to this order, the only questions before the court were, 1st, What, amount would be a suitable allowance, having regard to the circumstances of the parties respectively; and, 2d, From what date should the allowance commence. Both the amount to be allowed, and when the allowance was to commence, were matters in the discretion of the court. The statute empowers the court to compel the defendant to provide such suitable allowance as it' shall deem just. Of course, the discretion to be exercised is a judicial, and not an arbitrary one. Ho reference would have been necessary in'the case, if, at the time the judgment of divorce was pronounced, the court had been possessed of facts to enable it to reach a just conclu-. sion as to permanent alimony. The object of the reference, and the repor-t of the referee, is to inform the'conscience of the court; but it is the court, and not the referee, who adjudges the question as to what is a suitable allowance. Hence, there
The power which the statute confers is to make such allowance as the court shall deem just, having regard to the circumstances of the parties, that is, the amount and income of the husband’s estate, and the other duties and burdens chargeable upon him, and the rank and condition in life of the wife.. On a divorce for adultery, the considerations governing the amount of alimony are essentially of a pecuniary nature. If the defendant have the ability to pay, the injured party is to recover such an allowance as will correspond with her social position, and at least maintain her in the style and condition that her husband’s fortune would have reasonably justified her maintenance but for his infidelity. She is not to be put on a stinted allowance because the husband has been unfaithful to his marriage vows ; but this is rather a reason, if his estate be ample, that she should-receive a generous and liberal support. The law allots no definite proportion of the husband’s estate lor alimony; but leaves to the court to award such sum as in the discreet exercise of the power, and having regard to the
The court deemed four thousand dollars a year to be a just allowance for the plaintiff’s support. This appears to be a large sum, but perhaps it is not, taking into view the circumstances of the parties. The value of the defendant’s estate is admitted by himself to exceed $260,000; and there is reason to believe that it is much more, as during six years next after the judgment of divorce, his professional receipts from one theatre alone amounted to about $14,000 per annum, and the
In view of circumstances developed in the case, the defendant’s wealth and the plaintiff’s need (though we might consider the allowance somewhat large), we cannot say that the discretion of the court below in fixing the sum was so arbitrarily exercised as to amount to an abuse of judicial discretion. If not, there is no question of law raised to be reviewed in this court.
The court awarded alimony from the commencement of the action, instead of the date of the judgment of divorce. This, as was said by Chief Justice Nelson, in Burr v. Burr (supra), is a matter of discretion depending upon the special circumstances of the case. In the case cited the allowance was made to commence from the filing of the bill, though $2,000 a year had been allowed for temporary alimony during the progress of the suit. In this case, it would make about $4,000 difference whether alimony was allowed from the commencement/ of the action or from the date of the judgment of divorce, the action having been commenced in November, 1850, and the judgment pronounced in «January, 1852. It seems to me that if it were ever justifiable or a fit exercise of judicial discretion to date the allowance from the commencement of the suit, it was in this case. The plaintiff had been cast out upon the world, and left to the favor of friends, for the means of support, and to prosecute her suit. Even the stipend that had
The allowance for permanent alimony, and from what date it shall commence, as has been said, are questions resting in the discretion of the court. There “ is no other rule or criterion to guide than the bom viri arbitrium.” As it is a judicial and not an arbitrary discretion to be exercised, I do not-say that there may not be an appeal from such an order. The power must, however, be shown to have been arbitrarily exercised. Otherwise, the law does not contemplate a review of such decisions in this court. •
The judgment and order of the Superior Court should tie affirmied.
All the judges concurring,
Judgment and order affirmed.