Waddey v. Waddey

Citation290 N.Y. 251,49 N.E.2d 8
Decision Date15 April 1943
CourtNew York Court of Appeals

290 N.Y. 251
49 N.E.2d 8


Court of Appeals of New York.

April 15, 1943.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Ethel M. Waddey against Everett Waddey, Jr., for divorce. From an order of the Appellate Division, 259 App.Div. 852, 20 N.Y.S.2d 406, unanimously affirming an order of the Special Term, Riegelmann, J., which modified a final judgment granting plaintiff a divorce by eliminating a provision therein for alimony, plaintiff appeals as of right under Civil Practice Act, s 588, subd. 1, after denial of her motions for leave to appeal by the Appellate Division, 259 App.Div. 1013, 20 N.Y.S.2d 1018, and the Court of Appeals, 285 N.Y. 609, 33 N.E.2d 543, and denial of her motion for reargument by the Court of Appeals, 285 N.Y. 744, 34 N.E.2d 904.

Orders of the Appellate Division and Special Term reversed, and motion denied.

See, also, 168 Misc. 904, 6 N.Y.S.2d 163.

DESMOND and FINCH, JJ., dissenting.

[49 N.E.2d 9]

Henry H. Shepard, of New York City, for appellant.

William J. H. Molinari and Helen Borgia, both of New York City, for respondent.

RIPPEY, Judge.

On May 24, 1928, the appellant was awarded a decree of absolute divorce from defendant by the Supreme Court of Kings County and provision was therein made for alimony of $35 per week up to and including February 21, 1929, and $25 per week thereafter.

By chapter 161 of the Laws of 1938, effective March 26, 1938, the Legislature amended section 1159 of the Civil Practice Act (now numbered 1172-c), which related to ‘Modification of judgment or order in action for divorce brought by wife,’ by adding the following provision: ‘The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may 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 payment of money for the support of such wife.’

On April 14, 1938, respondent applied to the court to have the alimony provisions in the decree annulled. Appellant contended at that time, as now, that the statute was unconstitutional as interfering with her vested rights and could not be given a retroactive effect. Justice Riegelmann, at Special Term, overruled that contention and referred the matter to an official referee to take proof and report ‘whether the plaintiff was, on March 26th, 1938, and since that time, has been habitually living with a man know as Augustus S. Kibbe, holding herself out to be his wife, although not married to him.’ The referee reported in the affirmative. Special Term thereupon adopted the report of the referee and made an order annulling the alimony provisions of the decree and that order has been affirmed by the Appellate Division.

Courts have jurisdiction over the marriage relation, its incidents and its ultimate consequences only as such jurisdiction is conferred by statute. Erkenbrach v. Erkenbrach, 96 N.Y. 456, 463;Wilson v. Hinman, 182 N.Y. 408, 410, 75 N.E. 236, 2 L.R.A.,N.S., 232, 108 Am.St.Rep. 820. The power of the Legislature to enact the statute under consideration (L.1938, ch. 161) cannot be doubted. Cf. Fearon v. Treanor, 272 N.Y. 268, 5 N.E.2d 815, 109 A.L.R. 1229. The decisive question here is whether the effect given to the statute by the courts below deprives the appellant of some substantial vested right. If the order from which the appeal is taken so operates, it is not the result of due process and the statute so applied would violate both the State and Federal Constitutions. In determining the constitutional question, ‘the courts must give consideration to the proper construction and effect of the statute.’ Valz v. Sheepshead Bay Bungalow Corp., 249 N.Y. 122, 132, 163 N.E. 124, 127.

It is a settled rule of statutory construction that the provisions of a statute will not be applied retrospectively where they are capable of any other construction unless the intent of the Legislature to the contrary clearly appears. New York & Oswego Midland R. Co. v. Van Horn, 57 N.Y. 473, 477;Walker v. Walker, 155 N.Y. 77, 81, 49 N.E. 663. There is nothing in the statutory provision...

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31 cases
  • Sanseri v. Sanseri
    • United States
    • United States State Supreme Court (New York)
    • 6 avril 2015
    ......L. 1904, ch. 339, cited in Waddey v. Waddey, 290 N.Y. 251, 255–256, 49 N.E.2d 8 (1943). A decade later, the Court of Appeals in         [16 N.Y.S.3d 649] Hayes v. Hayes, ......
  • Sanseri v. Sanseri
    • United States
    • United States State Supreme Court (New York)
    • 6 avril 2015
    ......L. 1904, ch. 339, cited in Waddey v. Waddey, 290 N.Y. 251, 255–256, 49 N.E.2d 8 (1943). A decade later, the Court of Appeals in 16 N.Y.S.3d 649 Hayes v. Hayes, 220 N.Y. 596, 115 ......
  • Pattberg v. Pattberg
    • United States
    • United States State Supreme Court (New York)
    • 4 décembre 1985
    ...... between persons merely living together in temporary laison and those living in a more permanent relationship as described in the statute); Waddey v. Waddey, 290 N.Y. 251, 49 N.E.2d 8 (1943) (statute found prospective only and due process challenge not entertained); Gallin v. Gallin, No. ......
  • Knight-Ridder Broadcasting, Inc. v. Greenberg, KNIGHT-RIDDER
    • United States
    • New York Court of Appeals
    • 7 juillet 1987
    ......Foursome Inn Corp., supra, 54 N.Y.2d at 592, 446 N.Y.S.2d 917, 431 N.E.2d 278; see, Waddey v. Waddey, 290 N.Y. 251, 256, 49 N.E.2d 8; cf., Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d . Page 599 . 427, 436, 301 N.Y.S.2d 23, 248 N.E.2d ......
  • Request a trial to view additional results
1 books & journal articles
  • New York. Practice Text
    • United States
    • ABA Antitrust Library State Antitrust Practice and Statutes (FIFTH). Volume II
    • 9 décembre 2014
    ...of the legislative purpose to justify retroactive application.”) (quoting Jacobus v. Colgate, 111 N.E. 837 (N.Y. 1916)); Waddey v. Waddey, 49 N.E.2d 8 (1943); Mendler v. Fed. Ins. Co., 607 N.Y.S.2d 1000, 1003 (N.Y. Sup. Ct. 1993) (“[A] statute should be construed as prospective unless the l......

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