92 N.Y.S. 184 | N.Y. App. Div. | 1905
Lead Opinion
The interlocutory decree was made final on the 16th day of April, 1903. The final decree, following the interlocutory decree, awarded the custody of the two children, aged five and six years respectively, to the plaintiff but contains no provision for their education or maintenance. At the time of the making of the decree the defendant was contributing to the plaintiff the sum of $150 per month for the support, education and maintenance of the children pursuant to a separation agreement made between the parties on the 1th day of November, 1902, which contemplated the payment of that amount until the children should attain their majority with a modified provision in the event of the death of either or the marriage of the daughter. An action is now pending between the plaintiff and the defendant for the enforcement of the agreement for the benefit of the children.
The respondent stands on the literal reading of section 1111 of the Code of Civil Procedure and contends that since no provision for the support, maintenance or education of the children was contained in the final decree the court is without authority to regulate the matter by amending or supplementing the decree. Even though the contention of the respondent be untenable there would be difficulty with this motion. The application is not in form to have the court make a suitable provision for the children but to have incorporated in the final judgment the provision of the agreement between the parties for the payment of $150 -per mouth for that purpose and the plaintiff fails to present any facts tending to show that justice between the parties requires such a provision or any provision. It does not appear but that the plaintiff has ample means for the support and education of her children. The agreement between the parties recites that she “ has means of her own ” and it appears that the defendant within eight months prior to the 11th day of June, 1903, paid her more than $11,000, the major part of which was for the purpose as shown by the agreement, of placing “ her property in better paying shape so as to increase the earnings from her property.” The denial of the motion, however, upon this ground would likely only result in its renewal, and since we are of opinion that there is no authority to change the decree, our views may as well be expressed. While the court has inherent authority over the
We are of opinion that in 'every final decree .of divorce or separation, not making provision for the maintenance and education of minor children, issue of the marriage, a suitable provision should befihborporated reserving to the court the authority ,to require suitable'pro^ vision therefor at anytime in the- future and we recommend the. universal adoption of this practice.
■ It follows, therefore, that the. order should be affirmed.
O’Brien, Ingraham and Hatch, JJ., concurred; Van Brunt,
P. J., dissented.
Relating to actions for divorce and for separation.— [Rep.
Dissenting Opinion
(dissenting):
I dissent. If the court has neglected to do- what it is expressly directed to do, I suppose in the interest of the party wronged by the court, who had no opportunity to insist upon his- rights, at the time of the making of the decree, the omission may be supplied in furtherance of justice.
Order affirmed, without costs. -