138 N.Y.S. 1082 | N.Y. App. Div. | 1912
The plaintiff sued the defendant for an absolute divorce, the action resulting in a judgment entered on the 31st day of January, 1905. The judgment, among other things, provided that “ the plaintiff have the care, custody and education of Le Eoy W. White, the child of said marriage,” making no provision for the maintenance of such child or of the plaintiff. This was, in effect, an adjudication that the defendant, as the father of the child, had so far sacrificed the rights of a parent as to be no longer entitled to the general right to support and maintain such child in his own home, but it in no manner relieved him from the obligation which the parent owes to the State to support his own lawful issue, however loosely or inadequately that obligation may be defined. (Salomon v. Salomon, 101 App. Div. 588, 590.) Nor could the omission of a provision in the judgment to maintain the child of the marriage operate to estop the State from subsequently compelling the defendant to discharge this obligation, either directly or by means of an amendment of the judgment in the original action upon proper notice. As between the plaintiff and defendant, of course, the judgment is conclusive; by not insisting upon the provisions of law for her own support and maintenance, the plaintiff would be deemed to have waived the right, and the judgment would be construed as an adjudication that there was no necessity for a provision upon the subject. (Salomon v. Salomon, supra.) But this adjudication is not binding upon the children. (Id.) It does not abrogate them right to support from the father, at least not when the mother is no longer able to afford such support, and the particular manner which the legislative department of the government shall devise for the enforcement of this obligation on the part of the father ought not to be limited except by express constitutional provisions.
In the case now before us the plaintiff, after supporting herself
At the time judgment was entered in the present action, section 1159 of the Code of Civil Procedure provided that where the action for divorce was brought by the wife, the court “may, in the final judgment dissolving the marriage, require the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of plaintiff, as justice requires, having regard to the circumstances of the respective parties; and 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.” This provision, as affecting alimony awarded under judgments heretofore existing, has been held unconstitutional, as taking the property of the plaintiff in her judgment without due process of law. (Livingston v. Livingston, 173 N. Y. 377, 379.) It, however, has no relation to the present case, as there was no provision for alimony or for the support and maintenance of the child of the marriage in the final judgment, so that there is nothing to “ annul, vary or modify ” of “such a direction.” The jurisdiction of the courts of this State over actions for divorces was conferred wholly by statute, and their powers are confined to such as are expressed or may he incidental to the exercise of the jurisdiction conferred. (Livingston v. Livingston, supra, 377, 380, and authority there cited,) W© must look beyond the' provisions
A similar provision was made by section 1771 of the Code of Civil Procedure, the language being that “the court must, except as otherwise expressly prescribed in those articles [relating to divorces and separations], give, either in the final judgment, or by one or more orders, made from time to time, before final judgment, such directions as justice requires, between the parties, for the custody, care, education and maintenance of any of the children of the marriage, and where the action is brought by the wife, for the support of the plaintiff. The court may, by order, upon the application of either party to the action after due notice to the other, to be given in such manner as the court shall prescribe, at any time after final judgment, annul, vary or modify such directions.” This would authorize the court, no doubt, to make an order annulling, varying or modifying the order in respect to the custody of the child; it would permit, under proper circumstances, the making of an order allowing the defendant to have the custody of the child a portion of the time, or it might go to the extent of giving the defendant the entire custody of the child, with the incidental duty of maintaining such child, and it would not be a great stretch of construction to hold that the power to “ annul, vary or modify such directions ” carried with it the power to vary the provision for custody by a condition that this custody should be at the expense of the defendant. “ Vary” is defined to be “To change to something else ” (39 Oyc. 1125), and it would seem to be a word of sufficient scope to give the court the power above suggested in the interest of justice.
It does not seem necessary, however, to go to this length in support of the order now before us, for the reason that the Legislature, in 1908, amended section lYYlof the Code of Civil Procedure, so that it now provides in a case of the character now under review, that the “court may, by order, * * * at any time after final judgment, annul, vary or modify such directions, or in case no such direction or directions shall have been made, amend it by inserting such direction or directions as justice requires for the custody, care, education and main
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Hirschberg-, Burr, Thomas and Carr, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.