Karlin v. Karlin

• Decision Date: 28 February 1939
• Citation: 280 N.Y. 32,19 N.E.2d 669
• Parties: KARLIN v. KARLIN.
• Court: New York Court of Appeals Court of Appeals

280 N.Y. 32

19 N.E.2d 669

KARLIN

v.KARLIN.

Court of Appeals of New York.

Feb. 28, 1939.

Divorce action by Elizabeth Karlin against Abbott A. Karlin. From an order of the Appellate Division, 254 App.Div. 843, 6 N.Y.S.2d 336, modifying, and affirming as modified, an order of the Special Term which granted a motion by the defendant to amend a final judgment of divorce, the defendant appeals.

Order of Appellate Division reversed and order of Special Term affirmed. Appeal from Supreme Court, Appellate Division, First department.

Max J. Le Boyer, of New York City, for appellant.

Alex B. Greenberg, of New York City, for respondent.

LOUGHRAN, Judge.

The plaintiff wife sued her husband for a divorce. An interlocutory judgment entered in her favor November 3, 1924, directed him to pay to her $15 per week for the support of herself and their child. In January, 1925, the parties entered into a written agreement whereby the wife accepted $1,000 ‘in lieu of her alimony’ and the husband undertook to pay to her $6 per week for the support of the child. Thereafter and on February 4, 1925, the interlocutory judgment of divorce became a final judgment in accordance with a provision made therein for that eventuality.

This judgment having remained meantime unmodified, the wife, in December, 1936, brought suit thereon against the husband in the State of New Jersey. In the interim from February, 1925, he had paid to her only $6 per week in reliance upon their agreement of January, 1925. By the New Jersey action, she sought recovery of the difference between the aggregate of those payments and the total sum to which she was entitled on the face of the judgment-a difference fixed by her at $5,590.

Confronted by that litigation in New Jersey, the husband moved in this action for an order amending the support provisions of the judgment so as to conform them nunc pro tunc to the agreement made by the parties in January, 1925. This relief was granted by the Special Term as of February 4, 1925, the date when the judgment became final. On appeal by the wife to the Appellate Division, the order was modified by denying so much of the motion as sought relief nunc pro tunc. This is an appeal as of right by the husband from that modification of the final judgment of divorce. See Powers v. Powers, 214 N.Y. 660, 108 N.E. 1106.

The order of modification is silent as to whether it was made on the law or on the facts. The cases cited by the Appellate Division in its memorandum opinion (Livingston v. Livingston, 173 N.Y. 377, 66 N.E. 123,61 L.R.A. 800, 93 Am.St.Rep. 600, and Krauss v. Krauss, 127 App.Div. 740, 111 N.Y.S. 788) suggest that the order of the Special Term was modified on the law alone and counsel for the wife takes that position. He contends that the Special Term was wholly without power to amend (for the future or for the past) the support provisions of the judgment, since that power was not thereby reserved.

To this contention of complete absence of jurisdiction, the plain answer is that, when the judgment of divorce was entered in 1924, section 1170 of the Civil Practice Act provided as follows: ‘Where an action for divorce * * * is brought by either husband or wife, the court * * * must give, either in the final judgment, or * * * before final judgment, such directions as justice requires, between the parties, for the custody, care, education, and maintenance of any of the children of the marriage, and where the action is brought by the wife, for the support of the plaintiff. The court, by order, upon the application of either party to the action, * * * after due notice to the other, * * * at any time after final judgment, may annul, vary or modify such directions * * *.’ Laws...