Kirkbride v. Van Note

• Decision Date: 13 July 1937
• Citation: 9 N.E.2d 852,275 N.Y. 244
• Parties: KIRKBRIDE v. VAN NOTE.
• Court: New York Court of Appeals Court of Appeals

275 N.Y. 244

9 N.E.2d 852

KIRKBRIDE

v.VAN NOTE.

Court of Appeals of New York.

July 13, 1937.

Action for divorce by Vivian Kirkbride against James D. Kirkbride, wherein Gilbert H. Van Note, administrator of the estate of James D. Kirkbride, deceased, obtained an ex parte order substituting him as defendant and filed a motion for an order modifying a judgment in favor of the plaintiff by annulling the provisions for alimony, nunc pro tunc as of date of the plaintiff's remarriage. From an order of the Appellate Division of the Supreme Court in the First Judicial Department (250 App.Div. 755, 296 N.Y.S. 240) affirming an order denying the motion to modify the judgment of divorce, and affirming an order granting the motion to vacate the ex parte order substituting the administrator, the administrator appeals and questions were certified to the Court of Appeals.

Order reversed and certified questions answered.

The following questions have been certified to this court:

A. ‘1. Is the defendant, Gilbert H. Van Note, administrator of the estate of James D. Kirkbride, deceased, entitled under section 1159 of the Civil Practice Act to make application upon the record in this case, for modification of the judgment of the Supreme Court, New York county, entered January 11, 1926, dissolving the marriage theretofore existing between Vivian Kirkbride and James D. Kirkbride, so as to annul the provision of said judgment and any orders with respect thereto, directing payments for the support of said Vivian Kirkbride?

‘2. If question No. 1 be answered in the affirmative, should the modification have been granted?

‘3. If questions Nos. 1 and 2 be answered in the affirmative, should the modification be granted

‘(a) from the date of the remarriage of Vivian Kirkbride?

‘(b) from the date of the application for modification?’

B. ‘Was the defendant properly substituted as a party defendant in this action in the place of James D. Kirkbride by the ex parte order, dated December 30, 1936?’

LEHMAN, J., dissenting. Appeal from Supreme Court, Appellate Division, First Department.

Harry R. Cooper, of New York City, for appellant.

William E. Bardusch, of New York City, for respondent.

FINCH, Judge.

The plaintiff and James D. Kirkbride were married in 1914. In 1926 a decree of divorce was obtained by the plaintiff, which provided for the payment of alimony in the sum of $80 per month. In 1926, several months after the divorce, the plaintiff remarried, and at that time the husband ceased making alimony payments. Apparently the plaintiff made no claim while the husband was alive. The husband died in August of 1936, and shortly thereafter the plaintiff filed a claim with the defendant, his administrator in New Jersey, for $9,520 for alimony alleged to be due to her from October, 1926, to September, 1936, a period of nine years and eleven months. The administrator disputed the claim, and the plaintiff instituted suit against him in New Jersey. That suit has been stayed pending this application in the New York courts for a modification of the judgment herein by annulling the provision directing the payment of alimony for the period subsequent to the remarriage of the plaintiff. The administrator obtained an ex parte order substituting him as the defendant in this action. He then made a motion for an order modifying the judgment by annulling the provision for alimony nunc pro tunc as of the date of the remarriage. The plaintiff thereupon procured an order to show cause why the order of substitution should not be vacated. Both motions were argued together, and the order of substitution was vacated, and the motion to modify the divorce judgment was denied, on the grounds that the right to modify the judgment with respect to alimony was personal to the husband, and, even if made by him, the modification could be granted only as to alimony coming due after the date of the application. The Appellate Division has affirmed both orders and has certified various questions to this court.

Section 1159 of the Civil Practice Act governs the procedure for modification of a divorce judgment under such circumstances as are involved in the case at bar. At the time of the divorce and the remarriage of the plaintiff that section read as follows: ‘Where an action for divorce is brought by a wife, and a final judgment of divorce has been rendered in her favor, the court, by order upon the application of the defendant on notice, and on proof of the marriage of the plaintiff after such final judgment, must modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders, or of both, directing payments of money for the support of the plaintiff.’

In 1934 the section was amended by substituting the word ‘husband’ for the word ‘defendant.’

The provision of the Civil Practice Act is mandatory. Where a former wife has remarried and an application is made for modification of the judgment with respect to the direction of payment of money for the support of the former wife, the court ‘must modify,’ and cannot in its discretion refuse to do so. Alimony is awarded for present maintenance, and ‘as a matter of public policy a wife who has a husband with whom she is living should be supported by him and not by one from whom she has been divorced.’ Schley v. Andrews, 225 N.Y. 110, 114,121 N.E. 812, 813. The law recognizes the unfairness of requiring a husband to pay alimony for a period during which his former wife is married to another. In view of the mandatory character of this provision and the public policy behind it, there can be no doubt that the right to apply for modification is not personal to the husband, and, if the husband should die before making such application, his representative, upon whom, under section 83 of the Civil Practice Act, the liability devolves, may apply for such modification. The modification is not limited to the time subsequent to the application. It applies nunc pro tunc as of the time of the remarriage to all unpaid alimony. To hold otherwise would enable a woman to conceal her remarriage and thereby obtain alimony from her former husband while she is living with a...