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Johnson v. Johnson

12 Daly (N.Y.) 232 Court N.Y.C.P. Decision date 1883-06-29 English

Delivered by J. F. Daly, J.

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Emma R. Johnson, Appellant, against Richard L. Johnson, Respondent.
(Decided June 29th, 1883.)

Headnote

In an action for divorce, judgment was rendered in favor of the wife, who was the plaintiff, hut with her consent and at the request of the defendant, and upon his promise to pay her money from time to time, no provision for alimony was made. Held, that a motion hy her to amend the judgment by inserting a provision for alimony must be denied.
Appeal from an order of this court denying a motion to amend a judgment of divorce.
■ The appeal was taken by plaintiff from an order of the Special Term, made April 15th, 1882, denying her motion to amend the judgment of divorce in this action, entered December 15th, 1877, by inserting therein a provision allowing alimony to plaintiff, such judgment making no provision on that point. It appeared from plaintiff’s motion papers that although she had demanded alimony in her complaint, yet no provision was made therefor in the judgment, because defendant requested such omission, promising, if she would waive such a provision, he would faithfully pay her moneys from time to time in a fair and
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reasonable amount, also that he would pay her one half of his wages every month as long as she needed it, and that plaintiff, relying upon such promise, consented to the entry of the judgment without any provision for alimony. The promise was denied by defendant.
. Hamilton Odell, for appellant.
The relief which was applied for in Kamp v. Kamp ( 59 N. Y. 212 ), was relief which was forbidden by the statute (2 R. S. 146, § 45), which gave the court no power to award any allowance for the wife’s support beyond what the court should “ deem just, having regard to the circumstances of the parties respectively.” This, the Court of Appeals says, means their circumstances at the time of making the decree. The case of Erkenbrach v. Erkenbrach (N. Y. Daily Reg., May 29th, 1882), is very similar to Kamp v. Kamp in its material facts, and in that case also the plaintiff’s application was denied. Park v. Park ( 18 Hun 466 ), holds the same doctrine. And see Kerr v. Kerr ( 9 Daly 517 ). But in the case at bar plaintiff is not asking for relief based upon any change in defendant’s circumstances. She asks that the decree may be opened and that such a provision may be made for her support as the court shall deem just, regard being had to the circumstances of the defendant at the date of the decree.
The objection by the defendant—that the court has no power to grant the plaintiff’s application, because, inasmuch as alimony was prayed for in the complaint and was not allowed in the decree, the. judgment of the court-was against her claim, and that she was not entitled to it—is not sound. “ The law presumes,” said Judge Allen in the Kamp case, “ that every question involved in the action was passed upon by the court.” But it is only a presumption. The exact length and breadth of a judgment may always be shown by aliunde proof, which does not contradict the record (Doty v. Brown, 4 N. Y. 71 ; Dunckel v. Wiles, 11 N. Y. 420 ; White v. Madison, 26 N. Y. 118 ; Kerr v. Hays, 35 N. Y. 337 ; Angel v. Hollister, 38 N. Y. 378 ;
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Pierce v. Tuttle, 58 N. Y. 650 ; Wilcox v. Lee, 1 Robt. 355; Briggs v. Wills, 12 Barb. 567 ; Stedman v. Patchin, 34 Barb. 221 ; Marcellus v. Countryman, 65 Barb. 201 ). Every court of record has plenary power, when not restrained by statute, over all suits entertained and all judgments pronounced by it (Code Civ. Pro. § 723; Hogan v. Hoyt, 37 N. Y. 300 ; New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357 ; Pitt v. Davison, 12 Abb. Pr. 385 ; Hatch v. Central Nat. Bank, 78 N. Y. 487 ; McKelvey v. Lewis, 44 N. Y. Super. Ct. [12 Jones & S.] 561; Baldwin v. Mayor &c. of New York, 42 Barb. 549 ).
The. motion is to amend the judgment, &e., and for further relief. Under such a notice the court may properly grant any relief within the case made by the petition ( Van Slyke v. Hyatt, 46 N. Y. 264 ).
Algernon S. Sullivan, for respondent.
The court has not jurisdiction to grant the motion. The decree was final. It involved an adjudication upon the subject of alimony, which was distinctly prayed for in the complaint. From the moment when the decree was entered, jurisdiction of the action and the parties to the action ended, except with the qualification that if the form or entry of the order, as it appears of record, was a mistake or error and not really the judgment or decree which was made by the court, that mere form or entry could be corrected by the court for its own sake. There being no pretense of such mistake or error, and no pretense of fraud upon the court, it can never recall the case to life (Kamp v. Kamp, 59 N. Y. 212 ). To assert otherwise is contrary to the principle which gives value to “ a thing adjudged.”
The order which is appealed from is in harmony with the authorities. See Kamp v. Kamp ( 59 N. Y. 212 ); Erkenbrach v. Erkenbrach (N. Y. Daily Reg. May 29th, 1882).

[After stating the facts as above.]—No ground for reopening this judgment is shown by the moving papers. The plaintiff refrained from taking a decree providing for her support, on the promise of the defendant to

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pay her money from time to time. If she were content then to take such a promise instead of a decree of the court, she must be content now. No charge of fraud can be based on a mere promise, and the judgment cannot be disturbed on that ground.

With the entry of judgment in an action of divorce dissolving the marriage contract the jurisdiction of the court over the parties is terminated, except to enforce the judgment or correct mistakes (Kamp v. Kamp, 59 N. Y, 212 ).

There is no mistake nor error to be corrected in this case, and the plaintiff must be left with the judgment she knowingly consented to.

Charles P. Daly, Ch. J., and Van Brunt, J., concurred.

Order affirmed.

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