Hauscheld v. Hauscheld

On the 31st of July, 1885, a judgment was entered in this action by which the plaintiff was awarded an absolute divorce from the defendant. It contained, however, no direction requiring the payment of alimony to the plaintiff-, but instead there was the following: “It is further ordered and adjudged that the question of alimony, and the amount to be paid, if any, by the defendant, George W. Hauscheld, for the support, maintenance, and education of said child, Reese C. Hauscheld, be reserved for the further consideration of this court.” No application was made to the court to exercise its discretion in regard to the matter reserved until 1895, when, upon motion, an order was made requiring the defendant to pay to the plaintiff eight dollars a week. This order was made upon notice, and contains a recital that counsel appeared for the defendant in opposition to it. The order seems to have been entered on the 12th day of March, 1895. The defendant complied with the requirements of this order until some time in 1898, when he moved to vacate it. That motion was denied,

The jurisdiction of the court in actions for separation and for divorce is purely statutory, and it has no authority to make any order or direction in such actions except such as is given to it by the statute which confers jurisdiction. The power to grant alimony is conferred, but it must be exercised only in the way in which the statute authorizes it, and at the time when the statute permits it to be done. The statute in force in that regard at the time the original judgment was made in this action was contained in the Code of Civil Procedure, and authorized the court, in a final judgment dissolving the marriage, to require the defendant to provide suitably for the education and maintenance of the children of that marriage, and for the support of the plaintiff, as justice required, having regard to the circumstances of the respective parties. Code Civ. Proc. § 1759, subd. 2. The power given by this statute is substantially the same which was given by the Revised Statutes. 2 Rev. St. p. 145, § 45. Under that section it had been held that when the court had once acted upon the question of alimony in the final judgment, it was powerless to modify the direction therein made, and that if the final judgment contained no provision whatever with regard to alimony it would be construed as a denial of it, and there was no power after the entry of final judgment by further directions to grant the alimony which had been refused in the final judgment. Kamp v. Kamp, 59 N. Y. 212 ; Erkenbrach v. Erkenbrach, 96 N. Y. 456 . These cases settle the rule that, having once disposed of the question of alimony, the court had no power to take any further action upon it; and such was the law undoubtedly until the amendment of 1895 to the section of the Code of Civil Procedure now under consideration. That section, however, had no retrospective force, and it gave to the court no power to modify the judgment before then entered. Walker v. Walker, 155 N. Y. 77 , 49 N. E. 663 . But the giving of alimony in an action for separation or for a divorce has always been regarded as merely incidental to the main relief sought in the action, and the courts have not infrequently reserved the question of alimony after the granting of the final decree. Cooledge v. Cooledge, 1 Barb. Ch. 77 ; Forrest v. Forrest, 25 N. Y. 501 ; 2 Bish. Mar. & Div. § 497. In the case last cited the question of alimony stood undecided for 12 years after the final judgment dissolving the marriage had been entered, and the cofirt of appeals affirmed the judgment of the superior court determining the right of alimony after that long period of time. In this case, as we have seen, the question of alimony was reserved for further consideration. This

It is claimed, however, that the case of Walker v. Walker, 153 N. Y. 77 , 49 N. E. 663 , is an authority against this conclusion which substantially overrules these cases. In Walker v. Walker the question arose upon an appeal from the order modifying the judgment by granting alimony, and it appeared that no reservation of the question of alimony had been made by the court; and because of that fact that case is not authority in the case at bar. It clearly could not have been the intention in that case to overrule the case of Galusha v. Galusha or of People v. Cullen, both of which were recently decided, because no reference was made to either of those cases in the opinion in Walker v. Walker; and the case of People v. Cullen was decided by

For that reason, the order appealed from must be affirmed, with $10 costs and disbursements. All concur.