143 N.Y.S. 37 | N.Y. Sup. Ct. | 1913
The papers on this motion show that on the 23d of June, 1910, the plaintiff obtained in this action a judgment separating, the parties from bed and board, and by that decree the defendant was directed to pay the plaintiff twenty-five dollars per month alimony. This alimony was paid, as directed, up to the month of January, 1913.
On the 25th of November, 1912, this plaintiff recovered a judgment of absolute divorce from the defendant in the Court of Common Pleas of the state of Ohio, for the county of Cuyahoga. An exemplified copy of this decree recites the plaintiff had been a resident of Ohio for one year next preceding the filing of the petition, and was a bona fide resident of the county of Cuyahoga. It was based on an allegation that11 the defendant was guilty of wilful absence from this plaintiff for three years prior to the filing of her petition herein.” It further appears that the decree of the Ohio court was obtained, not by the personal service of process upon the defendant within the territorial jurisdiction of the state of Ohio, but upon substituted or constructive service by publication, presumably in accordance with the statutes of that state.
The defendant having failed to pay alimony after the
We were of the opinion, however, that the proper practice was for the defendant to make a motion to modify the judgment of separation as to the payment of alimony, and that upon the hearing of that motion the effect of the Ohio decree could be passed on, and the motion to punish for contempt was, therefore, held until the defendant had an opportunity to make this motion. That, he has now done, and the force and effect of the Ohio divorce is now before the court for determination.
The plaintiff’s counsel contends that the Ohio decree has no extra-territorial effect, in that there was no personal service of process on the defendant, and that the courts of this state cannot and should not recognize its validity for the purpose of, in any way, modifying its own judgments.
If the defendant sought to impeach the validity of the Ohio decree on the ground of want of jurisdiction of the courts of that state to grant it, there would be presented very troublesome questions. He, however, does not question its validity, and it seems to be the rule of law recognized by the courts of this state that where a party submits himself to the jurisdiction of a court, and obtains its decree, he cannot be heard to question the jurisdiction of the court which entered the judgment. Starbuck v. Starbuck, 173 N. Y. 503.
In that case, the Court of Appeals said: “We are of the opinion that the Massachusetts decree was competent and that the defendants had the right to have
“A party cannot avail himself of a defense or of a right to recover by means of an invalid decree or judgment obtained by him; but, on the other hand, he may not be heard to impeach a decree or judgment which he himself has procured to be entered in his own favor.” P. 508.
This doctrine of estoppel against a party questioning the validity of decrees and judgments obtained at his own instance and procurement has been followed in numerous cases in our courts. Guggenheim v. Wahl, 203 N. Y. 397; Van Blaricum v. Larson, 205 id. 360; Strauss v. Strauss, 122 App. Div. 733; People v. Shrady, 47 Misc. Rep. 335; Voke v. Platt, 48 id. 274; deKohly v. Fernandez, 58 id. 29; Simmonds v. Simmonds, 78 id. 572. See, also, Davis v. Wakelee 156 U. S. 689.
We must assume, therefore, for the purpose of this motion, that the Ohio decree is valid and binding, at least on the plaintiff, and the only question remaining is what relief should or can be granted under such circumstances relieving the defendant from the payment of alimony provided by the decree in this action.
At the very outset of the discussion it must be borne in mind that in actions for divorce or separation courts have no power .or authority, except such as are eon
We must inquire whether there exists any provision of statute giving this court power to modify its decree. Section 1771 of the Code of Civil Procedure, in our opinion, confers such authority. It provides that: “ Where an action is brought by either husband or wife, as prescribed in either of the last two articles ’ ’ (which cover actions for separation as well as for absolute divorce) the court must give “ such directions as justice requires, between the parties' * * * for the support of the plaintiff.” It further provides: “ The court may, by order, upon' the, application of either party to the action * * * at any time after final judgment, annul, vary or modify such directions,” etc., etc.
The right to modify decrees of separation is recognized in Burton v. Burton, 150 App. Div. 792; Tonjes v. Tonjes, 14 id. 542; Walker v. Walker, 21 id. 219; reversed, however, 155 N. Y. 77; on the ground that the statute was not retroactive, and could not affect judgments entered prior to the passage of the amendment.
The court, having authority to modify, the question remains whether under the circumstances of the case it should exercise that right.'
This depends, in part at least, upon .the nature and
The direction for the payment of alimony in actions for a judicial separation proceeds upon a different theory than provisions for alimony in cases of absolute divorce. In the latter class of cases the marriage is dissolved and the judgment for alimony in such cases is rather in the nature of a penalty imposed upon the guilty party for a violation of his marriage vows and obligations. Alimony in such cases is rather a substitute for the rights of the innocent wife which the divorce cuts off and forbids in the future. This distinction has been pointed out in numerous cases. Wilson v. Hinman, 182 N. Y. 408; Matter of Ensign, 103 id. 284.
In oases of divorce, the obligation to pay alimony terminates on the death of the husband. Johns v. Johns, 44 App. Div. 533; Barnes v. King, 129 id. 192.
The plaintiff in this action has seen fit to become a resident of the state of Ohio, and to invoke the jurisdiction of the courts of that state, and obtain an absolute divorce from the defendant. This divorce, we have seen, she is estopped from questioning, and it, in effect, has terminated the marriage relation between herself
In Burton v. Burton, 150 App. Div. 790, the defendant had obtained a decree of judicial separation. Subsequently the defendant in that action brought an action for an absolute divorce against his wife on the ground of her adultery, and succeeded in his action. The court held that the court had the right and power by its judgment of divorce to provide that the plaintiff should be relieved from the obligation to pay further alimony by virtue of the decree of separation, upon the ground and for the reason that the marriage relation was terminated, which was the basis of the provision for alimony in the judgment for separation.
The defendant’s motion to modify the decree in this action as to the payment of alimony is, therefore, granted, and the motion to punish the defendant as for a contempt is denied, without costs to either party.
Ordered accordingly.