134 N.Y.S. 482 | N.Y. Sup. Ct. | 1911
Defendant seeks a reargument of a motion upon which an order has been made and entered, holding him in contempt of court for failing to comply with its order directing the payment of alimony.
On the argument of that motion it was, among other things, urged, and counsel here contends, that the court was without jurisdiction to adjudge the defendant guilty of contempt for the non-payment of past due alimony, on the ground that the divorce action had been previously terminated by dismissal of the action, because of plaintiff’s default in appearing when the case was reached for trial.
As to the suggestion of condonation, that has been resolved against defendant’s contention. It is unnecessary to again go into that; but, if there had been any good reason for urging that claim, the defendant had his remedy — not to wait until charged with contumacious disobedience, but to have moved to be relieved from the operation of the alimony order. The other matters urged will not be gone into — only the jurisdictional question, the power and authority of the court to entertain the motion to punisli for contempt and to so adjudge the defendant if he be shown to be guilty thereof.
This action, to obtain a divorce, w.as commenced in 1906; issue was joined July tenth of that year; and, by an order bearing date July 25, 1906, duly served on defendant, he was directed to pay to plaintiff $15 “ each and every week ” during the pendency of the action as alimony.
In December, 1906, and again in October, 1908, proceedings to adjudge defendant in contempt for failing tó pay arrears of alimony, awarded by said order were instituted; and in' both proceedings defendant paid such arrearages before said motions were determined. In December, 1909, an application of like nature was resorted to; and the motion
That the court had authority to make the. alimony order was not questioned; and, even if, for the argument only, the court erred in making such order, then defendant’s remedy was by review, not by contumaciously disobeying its. direction.
The action was, it appears', dismissed upon plaintiff’s default on January 4, 1910, the day after the adjournment of the then pending proceeding, and judgment, of dismissal was entered on February 14, 1910.
It must be remembered that actions such as this “ are neither actions at law nor suits in equity, but are statutory actions modeled largely upon equity procedure. Both power and practice depend on the statute except that where the statute is silent the practice usually follows the rule in equity.’’ People ex rel. Levine v. Shea, 201 N. Y. 471-478.
■Section 1769 of the 'Code provides that, during the pend-ency of an action brought for a separation or a divorce, the court may by order require a husband, by way of alimony, to provide for the support of his wife. Such an order may be made only during the pendency of the action, during which period only is the wife entitled to support and maintenance by way of alimony' thus awarded, in other words, by way of temporary alimony. By sections 1759 and 1766, the court is authorized to make provision in and by the final judgment in such actions for payment of permanent alimony for the support and maintenance of the wife, having regard to the ' circumstances of the respective parties; and the husband’s marital duty, thus measured and fixed by the court, is continued.
Since Romaine v. Chauncey, 129 N. Y. 566, 570, was de
As said above it is not a “ debt in the legal sense of the word.” Arrears of alimony are not provable in bankruptcy or barred by the husband’s discharge therein (Audubon v. Shufelt, supra; Maisner v. Maisner, supra); and as held in the Thrall case, supra, a delinquent husband’s assignee for benefit of creditors may not by motion be compelled to pay, from the. assigned estate remaining after satisfying all claims of creditors, arrears of alimony awarded pendente lite. It is true that there the matrimonial action had been previously discontinued upon the wife’s consent and that Van Brunt, J., in the course of his opinion (page 237), said that “ all proceedings to compel the payment of alimony pendente lite must be taken in the action in which the order for alimony was granted; and there being no action, the order for the payment of alimony necessarily fell.” It will be found, however, that that learned justice concurred in the opinions in Mercer v. Mercer, 73 Hun, 192, and Shepard v. Shepard, 99 App. Div. 308, both referred to below.
We find that the provisions of subdivision 2, section 1759, of the Code contemplate an application or a proceeding in such an action “ at any time after final judgment ” to annul, vary or modify a direction in the judgment and likewise in section 1767 to revoke a judgment of separation.
The mandate of the court was that defendant pay $15 each and every week as alimony for the support of his wife; his marital duty to support was thus determined; it was then measured and fixed by the court; and ho thereupon lost his previous discretionary control over that duty, for it was thereby changed into a specific duty over which, not he, but the court, presides.” It 'was a continuing duty, each week' to pay the sum awarded, and that duty was not. discharged until the award for each week was paid;-with every succeeding week there arose a separate specific duty for performance 'and that continued, so long as the order was not vacated, reversed or modified, until judgment was entered.
He did not obey the directions of the order; he set at naught the mandate of the court; a proper demand, duly authenticated, was made of him that he pay the arrears of the pendente, lite alimony, and this he failed to do.
This application was instituted by an order to show cause under section 1773 of the Code whereby it is provided, among other things, that “ Where the husband makes default in paying any sum of money specified in the last section, as required by the judgment or order” (the italics are mine), “ directing the payment thereof ” a motion to punish for con
It is to be noticed that there is in that section no expressed limitation of time wherein to institute such proceeding, and I know of no provision of law limiting the time wherein proceedings to punish for a civil contempt of court shall be instituted. Matter of Hay Foundry & Iron Works, 22 App. Div. 89, 91. Counsel have not called any such provision to-my attention, and after much research I- am unable to find any.
All applications t'o punish for contempt for failing to pay alimony awarded by a final judgment are made and entitled in the matrimonial action, whether for .divorce or for separation as the case may be, and such a proceeding must have its inception under and pursuant to the provisions of section 1773. Consequently the action is not terminated by the entry of judgment, certainly not for the purposes enumerated in sections 1759 and 1767, nor for the enforcement of compliance .with the directions of the mandate of the court for the payment of alimony.
In Mercer v. Mercer, 73 Hun, 192, an interlocutory order-granting counsel fee was made, with provision that it might be included in the judgment as part thereof and enforceable by execution; it was so included and the appellate court held that the order was a mandate of the court (notwithstanding the direction to include it in the judgment, and its subsequent insertion therein), entitling the plaintiff to enforce compliance .therewith by contempt proceedings. In that case the proceeding was-in the action, was instituted after entry of final judgment, and the order awarding counsel fees was made pursuant to the provisions of section 1769.
Again, in Shepard v. Shepard, 99 App. Div. 308, the husband was, subsequently to the judgment of dismissal, held in contempt for non-payment of arrears of alimony pendente lite. Prior thereto and during the pendency of the action he had been adjudged in contempt, and the time wherein to. purge himself therefrom by making the payments directed
In Thayer v. Thayer, 145 App. Div. 268, upon motion made in the action more than two years after the entry of final judgment, an' order directing the entry of a money judgment, enforceable by execution, for the arrears of alimony directed to be"paid by said final judgment was sustained; and the entry of successive judgments, as the installments of alimony fell due, was justified, but, of course, only upon direction by the court and after notice to the husband.
* Thus, in my opinion, it is clear that the entry of judgment ' in an action for separation or divorce does not of itself end and terminate the action though it may settle and fix some of the rights of the parties; but, to the end that those rights may be preserved and protected and the duties and obligations imposéd upon the parties may be enforced, such an action is not finally closed and ended by the entry of judgment.
Motion for a reargument is denied, with ten dollars costs.
Motion denied, with ten dollars costs.