Lake v. Lake

• Decision Date: 26 January 1909
• Citation: 87 N.E. 87,194 N.Y. 179
• Parties: LAKE v. LAKE.
• Court: New York Court of Appeals Court of Appeals

194 N.Y. 179

87 N.E. 87

LAKE

v.LAKE.

Court of Appeals of New York.

Jan. 26, 1909.

Appeal from Supreme Court, Appellate Division, Third Department.

Petition by Grace M. Lake against L. Frank Lake to vacate a judgment of divorce rendered in an action brought by plaintiff. From an order of the Appellate Division (113 N. Y. Supp. 1136), affirming an order directing defendant to pay a counsel fee pending the motion to set aside the judgment of divorce, defendant, pursuant to the permission of the Appellate Division, appeals on certified question. Reversed and question answered in the negative.

The parties to this action were married in 1900. On October 12, 1906, the plaintiff brought an action for divorce. The defendant appeared by attorney, and served a sworn answer denying the incriminating allegations of the complaint. By consent the issues were tried at a Special Term held November 7, 1906, at which the parties were each represented by counsel, and the plaintiff was present in person and was sworn as a witness in her own behalf, and testified to her marriage and the birth, in September, 1905, of a child of the marriage, and she also testified that the acts alleged to have been committed by the defendant were not so committed with her connivance, and that they had not been condoned or forgiven. The court found in favor of the plaintiff, and an interlocutory judgment was entered accordingly November 8, 1906. The interlocutory judgment also provided, in accordance with a written agreement signed by the parties on the day that the action was commenced, and by a further subsequent stipulation that the plaintiff should have the care and control of their child, Helen, and that the defendant should pay to the plaintiff $10 per month for her education, support, and maintenance. On the 5th day of March, 1907, final judgment was entered. Defendant, pursuant to said written agreement, paid the plaintiff's attorney for his services in the action, and also $2,000 to the plaintiff, and gave to her certain household furniture and furnishings in full of alimony and future support. Seven days after the final judgment was entered the defendant married again. On September 14, 1907, the plaintiff petitioned the court to vacate and set aside the judgment, and that in case the judgment was not wholly vacated and set aside, it be modified so as to provide proper and suitable support for her and her said child, and also that she be granted a suitable and proper counsel fee to cover the expenses of the application. In her petition she states: ‘That she brought this action at the request of her husband, contrary to her own wishes and desire, and under compulsion from him by reason of her fear that she would lose all means of support through his threat to leave her and her child without any means of support whatever unless she obtained a divorce from him, upon grounds the evidence for which was to be furnished her by her said husband.’ The petition further states that she thereupon consulted counsel, and entered into negotiations with her husband through her counsel about an allowance to her by the defendant for alimony, counsel fees, and future support, and that she consented to the agreement, which was signed on the day that the action was commenced. The petition further states that she relied upon statements made by the defendant that he was not worth the sum of $7,000 and that he was not willing to give her a larger sum than the amount stated in said agreement, and that by reason of the statements so made by him she assented to the agreement and accepted the sum so paid to her. She further states that she has since been informed and believes that he has at least $30,000 on deposit in certain banks. The motion was denied, and it was stated, in the order denying the motion, that it was denied ‘for want of sufficient evidence without prejudice to a renewal thereof upon further or additional evidence.’ An appeal was taken from such order to the Appellate Division, where the order was reversed, and the application of the plaintiff remitted to the Special Term for rehearing and decision. Lake v. Lake, 124 App. Div. 89,108 N. Y. Supp. 964. On the rehearing many affidavits were read by each party, and the Special Term then made an order appointing a referee to take proof and report to the court with his opinion thereon in substance whether there was collusion between the parties, or coercion of the plaintiff, or fraud practiced upon the court, because of which the judgment and agreements or either of them should be vacated, and the order further provided: ‘That within 10 days the defendant pay to the plaintiff the sum of $250 counsel fee herein.’ An appeal was taken therefrom to the Appellate Division, where the order was affirmed, one justice dissenting upon the ground that no counsel fee should be awarded while the plaintiff is shown to have $2,000 of the defendant's money. Lake v. Lake (Sup.) 113 N. Y. Supp. 1136. The Appellate Division then made an order granting leave to the defendant to appeal to this court, and certified to the court the following question: ‘Did the Special Term have power to award the plaintiff any sum a counsel fee in the order made?’ Lake v. Lake (Sup.) 113 N. Y. Supp. 1136.

Edgar T. Brackett, for appellant.

Danforth E. Ainsworth, for respondent.

CHASE, J. (after stating the facts as above.)

The power of the court to require a husband to pay a sum of money to his wife to enable her to carry on or defend an action between them affecting the marriage relation is either derived from the statute (Code Civ. Proc. § 1769), or it is incidental to the statutory jurisdiction to entertain such actions (Jones v. Brinsmade, 183 N. Y. 258, 76 N. E. 22, 3 L. R. A. (N. S.) 192, 111 Am. St. Rep. 746). Said section 1769 provides that: ‘Where an action is brought, as prescribed in either of the last two articles (for divorce or for a separation), the court may, in its discretion, during the pendency thereof, from time to time, make and modify an order or orders, requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action, * * * having regard to the circumstances of the respective parties. * * *’ In either case the power of the court to make such an allowance is dependent upon the necessity therefor. Collins v. Collins, 80 N. Y. 1; s. c., 71 N. Y. 269;Poillon v. Poillon, 75 App. Div. 536,78 N. Y. Supp. 323;Osgood v. Osgood, 2 Paige, 621;Rose v. Rose, 11...