77 N.Y.S. 476 | N.Y. App. Div. | 1902
Lead Opinion
This action was commenced in the year 1892 in the Superior Court of the City of Hew York for a divorce. The defendant interposed an answer, which contained a counterclaim charging the plaintiff with adultery and asking for affirmative relief against her. That action was tried before a referee, who reported in favor of the plaintiff, finding the defendant guilty of the offense charged, the plaintiff not guilty, and dismissing the counterclaim; whereupon final judgment was entered granting the plaintiff a divorce, awarding the custody of the two children of the marriage to the plaintiff, and directing the defendant to pay to the plaintiff $4,000 per year for her support and the maintenance and education of the children. Within a short time after the entry of this judgment, the defendant, although then a resident of this State, went to the State of Pennsylvania and, notwithstanding the provisions of this judgment and of the statutes of this State, remarried and at once returned to Hew York, and has since lived here. Some seven years after the entry of this judgment, the plaintiff remarried and since that time lias lived here with her husband. The plaintiff since the entry of this judgment has provided for the maintenance, education and support of the children, and according to her testimony before the referee, which was not contradicted, has expended upon such maintenance, education and support the whole of the amount received by her from the defendant, the whole amount being necessary for that purpose. One of the children is a girl sixteen years of age, and the other a boy thirteen years óf age.'
On March 30, 1901, the defendant applied to the Special Term to reduce the amount required to be ¡laid to the plaintiff, upon the allegation that his income has decreased since the entry of the judgment, so that it is at present about $6,000 per year and is not sufficient to enable him properly to support his present family and also to pay the amount required to be paid by this judgment. Upon this application, the court reduced the alimony from $4,000 to $3,000 per year.
The application was made under subdivision 2 of section 1759 of
In this judgment of divorce there was no provision reserving the right of the court thereafter to modify it; nor did the statute in force when the judgment was granted authorize the court to modify a judgment making provision for the custody, education and maintenance of the children of the marriage, or for the support of the wife, in an action for divorce. It is now settled that the courts of this State have no common-law jurisdiction over the subject of divorce, and the authority of the court to decree a divorce and to make provision for the support of the wife and the education, maintenance and support of the children is confined to the exercise of such express and incidental power as is conferred by statute. (Walker v. Walker, 155 N. Y. 77.) While there is a distinction between a judgment rendered by a court to enforce a contract or to determine the ownership of property, and the provision of a judgment requiring the husband to support, maintain and educate his children and support his wife in an action for divorce, as to the method of enforcement of the judg
Under the Code of Civil Procedure as it existed at the time this judgment was entered, there was no distinction as to the power of the court to modify the judgment between a provision for the support of the wife and one for the education and maintenance of the children.
Prior to the enactment of the Code of Civil Procedure, section 59 of article 5 of title 1, of chapter 8, of part 2 of the Be vised Statutes (2 R. S. 148) provided that in an action brought for a divorce or for a separation, the court may, “ during the pendency of the cause, or at its final hearing, or afterwards, as occasion may require, make such order as between the parties for the custody, care and education of the children of the marriage as may seem necessary and proper, and may at any time thereafter annul, vary or modify such order.” Under this provision the Court of Appeals in Erkenbrach v. Erkenbrach (96 N. Y. 456) held that by expressly authorizing an order modifying a judgment to be made after its entry providing for the care, custody and education of the children of the marriage, it impliedly prohibited the modification of a judgment of divorce in any other particular. Upon the passage of the second part of the Code of Civil Procedure this provision of the Bevised Statutes was repealed, and section 1771 of the Code of Civil Procedure, to which attention has been called, was passed as a substitute therefor. (Laws of 1880, chaps. 178, 245, § 1, subd. 2, ¶ 4.) By that section the right of the court to modify a final judgment, with directions as to the custody, care and education of the children of the marriage, was confined to a judgment entered in an action for a separation, thus excluding an action for divorce. This modification was significant; and applying the principle that granting authority to modify a judgment in an action for a separation which provides for the care, custody and
In the Erkenbrach case,- the power of the court to modify a final judgment in a divorce case providing for the care, custody, and education of the children was placed solely upon the ground that, under the provisions of the Revised Statutes in force when the judgment wás entered, the court was expressly authorized to modify, by an order made after judgment, the provision therein contained by which the care, custody and education of the children of the marriage were provided for. As, however, by the provision of the Code of Civil-Procedure in force at the time the judgment in, this action was entered, such power was restricted to a judgment in an action for a separation, the authority for a modification of such a judgment in an action for divorce had been repealed by the Legislature, and the general rule stated in Kamp v. Kamp (supra), and which has. since been uniformly followed, should, I think, apply. A provision in a final judgment in an action for a divorce directing the payment of a sum of money for the support of the wife, or for the care, education and maintenance of the children, became a binding obligation upon the defendant, with no power reserved to the court to modify it.
In what respect does this differ from an obligation to pay a sum of money each year in consideration of the transfer to the obligor of a piece of property ? It is a judicial determination of the amount required to be paid by a person upon whom there is, by-law, a liability, and in the discharge of that liability. It vests in the plaintiff the right to receive this money in discharge of the father’s and
It seems to me that this attempt to abrogate or annul the provisions of a judgment legally entered by a court of competent jurisdiction, having jurisdiction over all the parties, because of the happening of events subsequent to the entry of the judgment, is a direct attempt to deprive the plaintiff of property and in violation of section 6, article 1 of the Constitution, which provides that no person shall be deprived of property without due process of law. The general rule is stated in 6 American and English Encyclopaedia of Law (2d ed. p. 1038): “ No power exists on the part- of the Legislature to grant new trials or rehearings, or to authorize the opening of a judgment previously rendered after that remedy under the general law has expired.” And ón page 1040 : “ So the Legislature cannot confer the right of appeal- and trial de nova in the Supreme Court of a cause wherein no such right existed at the time the decision therein was rendered.” The cases cited in the notes show that this principle has received universal approval in' the various States of the Union. It has also been recognized in the courts of this State. In Gilman v. Tucker (128 N. Y. 190) Chief Judge Huger said: “We also think the act violates the constitutional guaranty because it assumes to nullify a final and unimpeachable judgment, not only establishing the plaintiff’s right to the premises in dispute, but also awarding him a sum of money as costs. * * * It not only does this, but it attempts to reverse a judgment and give to the defeated party the fruits of a recovery awarded to another. We must bear in mind that a judgment has here been rendered and the rights flowing from it have passed beyond the legislative power, either directly or indirectly, to reach or destroy. After adjudication the fruits of the judgment become rights of property. These rights became vested by the action of the court and were thereby placed beyond the reach of legislative power to affect.”, In Walker v. Walker (155 N. Y. 77) there is a
The provision of the Code under which this application was made was added to subdivision 2 of section 1759 by chapter 742 of the Laws of 1900, and is as follows: “ The court may * * * by order, upon the application of either party to the action, and after due notice to the other, to be given in such manner as the court shall prescribe, at any time after final judgment, whether heretofore or hereafter rendered, annul, vary or modify such a direction.” We think this provision, so far as it applies to judgments which had become,absolute before its adoption, was in violation of the Constitution and, therefore, void.'
It is doubtful in this case whether the application should be granted if the court had the power. The defendant was a resident of this State, was convicted of a violation of his marital obligation, and was prohibited both by the judgment and the statute law from marrying again during the lifetime of the plaintiff. Notwithstanding this prohibition, immediately after the judgment was entered he went to another State, there violated the prohibition and then returned to this State, and has lived here from that time to the
It follows that the order appealed from should be reversed, with ( ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
O’Brien and Hatch, JJ., concurred; Patterson, J., concurred in result; McLaughlin, J., dissented.
Dissenting Opinion
(dissenting):
I think chapter 742 of the Laws of 1900 is constitutional. Whatever power the court has over the subject of divorces, including the power to award alimony, is derived from the Legislature, and that body can at its pleasure increase or diminish the power thus given. (Walker v. Walker, 155 N. Y. 77.) Nor can alimony which has not by the terms of the decree become payable be considered property in the sense in which that term is generally understood. I am also of the opinion that the court very properly, under the facts presented, reduced the alimony here awardéd from $4,000 to $3,000 per year. Whatever may be said as to the obligation resting upon a husband to support his wife and as to the propriety of the court in case of a divorce making suitable provision to that end, it has no application here. The award in this case was made to the wife. She has again married and immediately upon her marriage to her present husband she ceased to be in every sense the defendant’s wife; lienee, the reason which existed when the alimony
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.