Fox v. Fox
| Decision Date | 21 November 1933 |
| Citation | 188 N.E. 160,263 N.Y. 68 |
| Parties | FOX v. FOX. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action for divorce by Margaret Fox against George Leonard Fox. From an order of the Appellate Division (238 App. Div. 869, 263 N. Y. S. 393), reversing on the law an order of the Special Term, granting plaintiff's motion for counsel fees to enable her to defend an appeal by the husband from an order denying the husband's motion to amend a judgment of divorce, the plaintiff by permission appeals.
Order of Appellate Division reversed and that of the Special Term affirmed. Question certified answered.
Appeal from Supreme Court, Appellate Division, Second department.
Albert A. Verrilli and David H. Moses, both of White Plains, for appellant.
Albert C. Jordan, of Yonkers, for respondent.
On November 25, 1930, the plaintiff was granted an interlocutory judgment of divorce, which became final on February 25, 1931. By its terms alimony was fixed at $12 a week. Later the defendant moved for a reduction of alimony. The motion was denied and defendant appealed. Thereupon the plaintiff, with show of the requisite merits, moved for an allowance of counsel fees and the expenses of printing. The AppellateDivision reversed an order granting the motion, and has certified the following question to this court: ‘Did the Special Term have power to award the plaintiff any sum as counsel fee in the order made?’
To sustain its decision the Appellate Division relied upon Lake v. Lake, 194 N. Y. 179, where, at page 186, 87 N. E. 87, 90, it was said that the case did not come ‘within the language of the statutory provision relating to counsel fees and the relation of husband and wife being wholly severed the court has no inherent jurisdiction to award counsel fees as an incident to its general statutory jurisdiction in matrimonial actions.’
In an action for divorce, although the final judgment puts an end to the relation of husband and wife, the duty of the husband to support the wife may in substance be continued in the form of an award of alimony. Romaine v. Chauncey, 129 N. Y. 566, 29 N. E. 826,14 L. R. A. 712, 26 Am. St. Rep. 544;Wetmore v. Wetmore, 149 N. Y. 520, 44 N. E. 169, 33 L. R. A. 708, 52 Am. St. Rep. 752. Under the present statute (Civil Practice Act, § 1170), the court is authorized at any time after final judgment to annul, vary, or modify such an award; or, if there was no award, to make one by amendment. The application may be made by either party to the action upon such notice to the other as the court shall prescribe. A similar right was formerly secured by reservation of leave to apply at the foot of the judgment or otherwise. Cooledge v. Cooledge, 1 Brab. Ch. 77; Forrest v. Forrest, 25 N. Y. 501;People ex rel. Com'rs of Public Charities & Correction v. Cullen, 153 N. Y. 629, 639,47 N. E. 894,44 L. R. A. 420; cf. 2 Abbott's New Practice (1888), 915. Under such a reservation, jurisdiction over the incidental subject-matter continued. Hauscheld v. Hauscheld, 33 App. Div. 296, 53 N. Y. S. 831;People ex rel. Hauscheld v. Dunn, 38 App. Div. 640, 57 N. Y. S. 1144, affirmed 159 N. Y. 570, 54 N. E. 1094. The effect of the statute is to write a reservation into every final judgment of divorce. The jurisdiction of the court over the parties and over the incidental subject-matter is prolonged; and to that extent the action may be said to be...
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...of action; it is a mere incident of the judgment in a matrimonial action. Galusha v. Galusha, 138 N.Y. 272, 33 N.E. 1062; Fox v. Fox, 263 N.Y. 68, 188 N.E. 160; Practice Act, §§ 1169, 1170.' The relation between the parties contained a congenital defect that passage of time could not remove......
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