Cullen v. Cullen — 18 N.Y. St. Rep. 381

Majority

p. 381

Eliza Cullen, Resp’t, v. William Cullen, App’lt.

(New York Superior Court, General Term,

Filed March 6, 1888.)

Headnote

1. Divorce—Powers of court only those granted by statute — Separation—Alimony—Code Civ Pro. . § 1766.

In actions for divorce or separation the court has the powers given by the statute and no others. In a final judgment of separation in favor of the wife it may by authority of Code Civ. Pro., § 1766, compel the defendant to provide suitably for the support of the plaintiff having regard to the circumstances of the respective parties existing at the time of the final judgment.

3. Same—Court cannot grant alimony after final judgment.

The court is without power to grant alimony after final judgment.

Appeal from an order directing the defendant to pay alimony.

The following is the opinion at special term:

Truax, J.—This motion differs from the motion in the case of Erkenbrach v. Erkenbrach (5 Civ. Pro. Rep., 188, and 96 R. Y., 456). That was a motion for alimony made after judgment, while this is a motion for leave to modify the judgment. It is true that the judgment was entered some time ago, but it has been frequently held that a court has control over its own judgment and may modify it when cause is shown for so doing. Hatch v. Central National Bank, 78 R. Y., 487, and cases there cited. Besides, the decree in this action provided that either party may apply at the foot of the decree for further judgment. I think that opening this judgment and granting the relief asked for by the plaintiff is in the interests of justice. The motion is granted, and a reference is ordered to Stephen B. Brague, Esq., to ascertain the amount of defendant’s property and income, and to report the same to this court with his opinion as to the alimony that should be allowed plaintiff, and counsel fee that should be allowed for services rendered by the plaintiff’s attorneys after the entry of the judgment. The attorneys for the plaintiff cannot have any allowances foi the services that have already been rendered by them. They are, however, entitled to an allowance for such services as they will render the plaintiff in obtaining alimony and in modifying the judgment. Beadle■ston v. Beadleston, 103 R. Y., 402; 3 R. Y. St. Rep., 634. Howe & Hummel, for app’lt; Joseph B. Beilly, for resp’t.

This is an action for separation, under section 1762 of the Code of Civil Procedure. The issue was tried and a judgment of separation was entered. It did

p. 382

not adjudge the payment of any alimony, but contained the following clause:—“It is further ordered and adjudged that, in the event of the pecuniary circumstances and conditions of the defendant becoming materially changed, touching his ability to support the plaintiff, an application may be made on the foot of this judgment, by any party in interest, for such modification of said judgment, touching the support of said plaintiff, or any other matter as may

Four years after the judgment was entered, the plaintiff applied for an order modifying the judgment and directing the defendant to pay suitable sums of money for the maintenance of the plaintiff. The court below granted the motion and ordered that “the said judgment is opened and modified and the plaintiff is allowed alimony and counsel fee, to be fixed and ascertained as hereinafter directed,” and further that a ‘ ‘referee be appointed to take testimony as to the property of the defendant,” etc.

The appeal is from this order, and 'the ground of the appeal is, that the court was without power to entertain a proceeding to fix alimony, etc., after the entry of the judgment.

There is no doubt that the court has, in respect of such an action, the powers given by the statute, and has no other power. Kamp v. Kamp, 59 N. Y., 212 ; Griffin v. Griffin, 47 N. Y., 134 ; Erkenbrach v. Erkenbrach, 96 N. Y., 456 . Under these cases, the construction of § 1766 is that, in an action by the wife, the court may, in the final judgment of separation, compel the defendant to provide suitably for the support of the plaintiff, having regard to the circumstances of the respective parties, as such circumstances exist at the time of the final judgment.

The question then is, was the judgment when it was entered, the final judgment of separation? I think it must be said that as to the issues that concerned separation, the judgment was final.

It is answered that the proceeding after the judgment was. in the nature of a carrying out of the provisions of the judgment. That proceeding, however, did not attempt to modify the adjudication as to the separation. As to that the judgment was final, and therefore the power of the court was confined as to alimony, to a determination upon the facts then existing.

In Kamp v. Kamp, it was held that the court was without jurisdiction to grant alimony after final judgment, and this should be recognized whenever the question arises.

I am of opinion that the order should be reversed, with ten dollars costs, and the motion below should be denied,, without costs.

Dugro, J., concurs.