Lonsdale v. Lonsdale — 41 A.D. 224

Majority

p. 224

John F. Lonsdale, Appellant, v. Nettie E. Lonsdale, Respondent.

Headnote

Divorce—the decision as to alimony and counsel fees can he reserved until final judgment only with the husband’s consent.

In a matrimonial action, the question of alimony and counsel fees cannot be reserved for decision after the trial of the action, except with the consent of the husband or his counsel.

In the absence of such consent, the court has no power, after a jury, to which issues of adultery raised by the pleadings in an action by a husband against his wife to obtain an absolute divorce, has found in favor of the wife, to award alimony at a specified rate from the time of the commencement of the action, or a counsel fee, and to include such provisions in the final judgment dismissing the complaint.

Appeal by the plaintiff, John F. Lonsdale, from a judgment of the Supreme Court in favor of the defendant, entered in the olfice of the clerk of the county of Kings on the 9th day of February, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint upon the merits, and also from an order made at the Kings County

p. 225

Special Term, and entered in said clerk’s office on the 2d day of March, 1899, resettling said judgment

Henry M. Dater [ George F. Elliott and Jay S. Jones with him on the brief], for the appellant.

Samuel H. Randall, for the respondent.

In this action for divorce brought by the husband against his wife a motion was made for the trial by jury of the questions relating to the defendant’s alleged adultery. These issues were tried on January 4,1899 ; the jury found such questions in favor of the defendant, and a judgment was entered on February ninth dismissing the complaint. After the jury trial, but before the entry of the judgment, the defendant moved for alimony and counsel fees, and the court, on hearing such motion on February ninth, made an order that the plaintiff pay the defendant $5 per week alimony from the time of the commencement of the action, and that the defendant recover $250 costs; and on the same day the final judgment was entered.

The plaintiff contends that the"court has no power to adjudge the payment of alimony otherwise than pendente lite and that its inclusion in the final judgment was error.

It is elementary that this subject is entirely a matter of statute, and I find no provision of the Code of Civil Procedure which authorizes the granting of alimony except pendente Ute. Section 1769 authorizes the court, in its discretion, during the pendency of an action for divorce, to make orders requiring the husband to pay “ any sum or sums of money necessary to enable the wife to carry on or defend the action, * * * or for the support of the wife.” This does not authorize a final judgment for alimony where no previous order to that effect has been made. No order was made herein until the day on which the final judgment was entered, and it cannot be said that any money was necessary to enable the wife to defend the action which had then been practically terminated by the trial a month before, or for her support. All that remained to be done was the entry of the final judgment.

p. 226

In an action for divorce the award of costs is in the discretion of the court (Code Civ. Proc. § 3230), but where costs are awarded they are taxable costs only. It was, therefore, error to award the gross sum of $250 in the final decree, without taxation.

We are aware that it has been the practice at times to reserve the question of allowance of alimony and counsel fee until after the trial of the action. This practice on occasions is commendable, but it can only be adopted by the consent or stipulation of the husband or his counsel. If such stipulation is refused, the court to which the application was made must decide it upon the information then at its command.

The judgment should be modified so as to strike out the award to the defendant of alimony and fixed amount of costs, and to insert in lieu thereof the direction that the defendant recover the taxed costs of the action, neither party to have costs of this appeal.

All concurred.

Judgment modified so as to strike out the award to the defendant of alimony and the fixed amount of costs, and insert in lieu thereof that the defendant recover the taxed costs of the action, neither party to have costs of this appeal.