Shepherd v. Shepherd — 8 N.Y. Sup. Ct. 240

Majority

p. 240

JEANNETTE G. SHEPHERD, Respondent, v. THOMAS C. SHEPHERD, Appellant.

Headnote

Alimony—not affected by subsequent remarriage of wife—divorce.

Where, upon a divorce obtained by the wife, on the ground of the husband’s adultery, the decree requires him to pay her a certain sum of money, annually, for her support, this allowance is not affected by her subsequent remarriage, nor should it be reduced on that account.

Appeal from an order refusing to modify the decree in this case, as to alimony.

Judgment of divorce was entered in favor of the plaintiff against the defendant, on the ground of his adultery, September 5th, 1871, and, by the decree, he was directed to pay the sum of $3,000 a year to the plaintiff for her support.

Since the judgment, the plaintiff has remarried, her husband having an income of $2,500. Before marrying the defendant, the plaintiff had obtained a divorce from a prior husband, and she derives an income, by reason of that marriage, of $672.50.

After the marriage of the plaintiff, the defendant moved to modify the decree by striking out the provisions as to alimony, or by reducing the amount. The referee, to whom the case was referred to report the facts and his opinion, reported that the marriage of the plaintiff did not entitle the defendant to be relieved from the payment of the alimony, and that no sufficient reason was shown for the reduction of the amount. *

Exceptions were filed by the defendant, and a motion made to overrule the report and grant the original motion, and from the order denying this motion, defendant appealed.

Wm. F. Shepard, for the appellant.

G. W. Scmdford, for the respondent.

The statute empowers the court, upon making a decree in favor of the wife, dissolving the marriage for the misconduct of the hüs

p. 241

band, to require him to provide such suitable allowance for her support as it shall deem just, having regard to the circumstances of the respective parties. And the continuance of that allowance is in no way rendered dependent on the fact that she shall not afterwards marry again. It is liable to no such contingency.^[1] Beyond that, the statute expressly secures to the wife the right to marry again where she is the innocent party to the decree. And it neither expressly, nor by any reasonable implication, deprives her of her allowance by way of alimony for so doing.^[2] Complete control is given the court over the subject of the amount, but that is in no sense rendered dependent upon the circumstances of her subsequent marriage. And as long as that is the nature of the provision made upon this subject, the court is not authorized to add a further qualification, for which no warrant has been supplied by the law. The remedy is entirely statutory in its nature, and must be governed by the import and spirit of the legislation enacted upon the subject. And, as it has not been provided that the wife shall forfeit her alimony by afterwards marrying, the court has no right to attach that as a penalty to the act.

In Forrest v. Forrest,^[3] the husband was not allowed to prove the subsequent misconduct of the wife, for the purpose of depriving her of her alimony on that account. The reason of the rule, applied in the disposition of that case, would seem to maintain the conclusion that an act, approved of by both law and morals, should not be attended with a loss which was there denied to be a proper or lawful consequence of her subsequent misbehavior. The proofs show that she is dependent upon the provision made for her support by the decree, and it is not claimed that any change has occurred in the circumstances of the husband, rendering him unable to supply it. For that reason, no cause exists for any reduction or modification in the allowance. And, as the wife’s marriage forms no good ground for depriving her of the provision made by the decree for her support, the husband should not be relieved from its performance. In one sense, it was a punishment justly imposed upon him for the violation of his marital obligations; and that reason exists with as much force at this time, for its continuance,

* 3 R. S., 5th ed., 236, § 58.

† † Id., 237, § 62.

‡ ‡ 25 N. Y., 501 , 514-516.

p. 242

as it did when the decree itself was pronounced against him. For these reasons, as well as those mentioned by Justice Donohue, in his opinion, the order made should be affirmed, with costs.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with costs.