Harris v. Harris
| Decision Date | 19 July 1932 |
| Parties | HARRIS v. HARRIS. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Lois Harris against Tudor Harris. From an order of the Appellate Division (235 App. Div. 626, 255 N. Y. S. 842) affirming an order of the Special Term granting a motion to confirm the report of a referee amending the decree of divorce as to alimony, defendant appeals.
Affirmed.
Appeal from Supreme Court, Appellate Division, Seconddepartment.
J. Harlin O'Connell, of New York City, for appellant.
W. H. Dannat Pell and John F. LeViness, Jr., both of New York City, for respondent.
By a decree of divorce entered in Westchester county, New York, on July 27, 1922, the defendant was directed to pay to the plaintiff the sum of $1,200 annually for her support, and support, education, and maintenance of the children. The husband having inherited a large sum of money, the wife made a motion, returnable on July 30, 1929, for an increase in the allowance for herself and children. The facts alleged in her petition being questioned by the defendant, the matter was sent to a referee to take proof and report back to the court. After protracted hearings, his report was filed January 7, 1931, and thereafter confirmed by the Special Term, which made an order directing that the amount to be paid to the plaintiff be increased to the sum of $3,000 a year, ‘to commence nunc pro tunc as of the 30th day of July, 1929,’ the day on which the plaintiff's motion to amend the decree of divorce was returnable.
The appellant denies the power of the Supreme Court to increase alimony to take effect prior to the date of the order directing the increase.
Sections 1155 and 1170 of the Civil Practice Act provide that by an order upon the application of either party, after due notice to the other, the court may vary or modify the amount of alimony at any time after final judgment. Notice was given in compliance with these sections and the matter came on to be heard on the date specified, July 30, 1929, but the court was unable to decide at that time what to do, as the material facts were in dispute. The court might have taken evidence then and there; instead, it appointed a referee, who thereafter held many hearings. Adjournments were taken with the consent, or, at the request of the husband, and the matter dragged on for over a year and a half. Apparently no objection was made by the husband, as no motion was made to discharge the referee or terminate the reference. Finally, the referee reported the facts upon which the court could and did act.
The court had power given to it by these provisions of the Civil Practice Act to increase alimony on July 30, 1929. This was the return day of the motion to amend the decree of divorce providing for alimony. The taking of testimony was to establish the facts upon which the court could act with caution and with...
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