Chamberlain v. Chamberlain

might be granted in such an action, making provision for the care, custody, and education of the children of the marriage, and that there was no distinction in this respect between an action for separation and one for an absolute divorce. Erkenbrach v. Erkenbrach, supra; Washburn v. Catlin, 97 N. Y. 623 . That statute was, however, repealed by chapter 245 of the Laws of 1880. The Code of Civil Procedure now contains the only existing statutes relating to the subject. It is provided by section 1759, subd. 2, that, where the action is 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 the plaintiff, as justice requires, having regard to the circumstances of the respective parties;” while section 1771 declares: “Where an action is brought by either husband or wife, as prescribed in either of the last two articles, [being articles 2 and 3,—the former relating to an action for divorce, and the latter to an action for separation,] the court must, except as otherwise expressly prescribed in those articles, 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, and education of any of the children of the marriage. Where the action was brought, as prescribed in article third of this title, the court may by order, at any time after final judgment, annul, vary, or modify such a direction.” These sections of the Code are a revision of sections 45 and 59 of title 1, c. 8, pt. 2, of the Revised Statutes. Mr. Throop, in his notes to those sections of the Code, states that sections 45 and 59 have in the revision been so amended as to make them conform to the theory of the decision of the court of appeals in Kamp v. Kamp, 59 N. Y. 212 , where it was held that in an action for divorce a vinculo the jurisdiction of the court over the subject-matter of the action and over the parties in all respects to matters involved in it terminates with the entry of final judgment therein, save for the enforcement or correction of the judgment; that, where the action is by the wife, her claim for alimony is to be determined by the situation of herself and husband at the time of making the decree; that, if no provision for her is made therein, it is to be presumed that the court decided adversely to her claim, and the decree is equally final as if such provision had been made, and that the court has no power on subsequent application showing circumstances thereafter arising to award alimony. Thus, if we rely upon the notes to those sections as evidence of the intent of the amendments, it would seem that it was intended to change the rule as it existed under the former statutes, so that, after judgment in an action for an absolute divorce, the judgment could neither be modified nor an order made so as to provide for the care, custody, and education of the children, if not provided for by such judgment, or by changing the provisions of the judgment in that respect, and by applying to such a case the same rule as formerly existed in regard to alimony for the wife, under the decision of Kamp v. Kamp. This intent is made more manifest by the change made in the language of the statute. The former statute provided that in such an action the court might, during the pendency of the action, at its final hearing or afterwards, make the order. The statute as it now stands provides that the court may make such an order before final judgment, (section 1771,) and such a provision may also be included in the final judgment, (section 1759, subd. 2.) There is now no provision in the statute authorizing the making of such an order after judgment. Thus it becomes quite evident that it was the intention of the legislature to change the statute, as stated in Mr. Throop’s notes to the Code. This is rendered more obvious by the last paragraph of section 1771, which provides, where the action is for a separation, that the court may at any time after final judgment vary or modify such direction, but makes no such provision when the action is for a divorce. It is true that in Wells v. Wells, 10 N. Y. St. Rep. 248 , a

contrary doctrine was held, but an examination of that case discloses that the court construed section 1771 as though it expressly provided that an order might be granted in an action for a divorce annulling, varying, or modifying a direction as to the care, custody, and education of the children, contained in a judgment in such actions. It is quite manifest that the fact that the last paragraph of that section is applicable only to an action for a separation, and not to an action for a divorce, escaped the attention of the court. This misapprehension is sd apparent from reading the opinion in that case that we do' not think it should be followed. The other cases cited by the respondent were decided under the statute as it existed before the adoption of that portion of the Code which relates to this subject. These considerations lead us to the conclusion that the order appealed from should be affirmed. Order affirmed, without costs to either party. All concur.