Walker v. Walker

• Decision Date: 01 March 1898
• Parties: WALKER v. WALKER.
• Court: New York Court of Appeals Court of Appeals

155 N.Y. 77

49 N.E. 663

WALKER

v.WALKER.

Court of Appeals of New York.

March 1, 1898.

Appeal from supreme court, appellate division, Second department.

Action by Frances S. Walker against Frank B. Walker. From an order of the appellate division (47 N. Y. Supp. 513) affirming an order modifying a judgment for divorce by increasing amount of alimony directed to be paid to plaintiff from four dollars to eight dollars per week, defendant appeals. Reversed.

Appeal from an order of the appellate division of the supreme court in the Second department affirming an order modifying a judgment for divorce entered February 11, 1891, by increasing the amount of alimony directed to be paid to the plaintiff from four to eight dollars per week. The judgment provided that the marriage between the parties be dissolved, and that the defendant pay to the plaintiff, as alimony for her support, the sum of four dollars a week from the 29th of November, 1890, during her natural life. The judgment contained no provision permitting either of the parties to apply for any change or modification of it. A motion was subsequently made at special term to increase the alimony allowed. It was based upon the petition of the plaintiff showing the improved pecuniary condition of the defendant. The motion was granted and the amount was increased. An appeal was taken from that order to the appellate division, where it was affirmed, and, pursuant to an order allowing the same, an appeal has been taken to this court. The question certified for determination is, ‘Did the court have power to make the order at special term from which the appeal to this court is taken?’

Daniel P. Mahony and Roger Foster, for appellant.

Meyer & Philippeau, for respondent.

MARTIN, J.

The courts of this state have no common-law jurisdiction over the subject of divorce, their authority being confined to the exercise of such express and incidental power as is conferred upon them by statute. Erkenbrach v. Erkenbrach, 96 N. Y. 456, 463;Washburn v. Catlin, 97 N. Y. 623. Therefore the power to make this order, if it existed, must be sought for in the statutes relating to the subject. As it stood when the judgment in this case was entered, the Code of Civil Procedure, the only statute then relating to the subject, provided that, where an action for divorce was brought by a wife, the court might, in the final judgment dissolving the marriage, require the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff, as justice required, having regard to the circumstances of the respective parties. Code Civ. Proc. § 1759. Under that statute, as well as under the Revised Statutes, after the entry of a final decree establishing the rights of the parties, the court had no power to order an additional allowance for the support of the wife. The jurisdiction of the court over the subject-matter of such an action, and of the parties, in respect to the matters involved in it, terminated with the entry of a final judgment, except as to proceedings for the enforcement of it, or to correct any misakes in the record. Kamp v. Kamp, 59 N. Y. 212; Erkenbrach v. Erkenbrach, supra; Chamberlain v. Chamberlain, 63 Hun, 96, 17 N. Y. Supp. 578. But the respondent contends that the doctrine of those cases has been overruled by the subsequent cases of Romaine v. Chauncey, 129 N. Y. 566, 29 N. E. 826, and Wetmore v. Wetmore, 149 N. Y. 520, 44 N. E. 169. The question under consideration here was not involved in either of the cases cited, and the remarks in the opinions which are relied upon by the respondent related only to the general duty of a husband to support his wife, and to the fact that he was not entirely relieved from his marital obligations by a judgment of divorce. We find no authority in those cases for the respondent's contention in this. Obviously, they were not so intended, as in the Romaine Case Judge Finch said: ‘The form and measure of the duty are indeed changed, but its substance remains unchanged;’ while in the Wetmore Case Judge Haight remarked: ‘Being the guilty party, his duty is continued, and is measured and fixed by the decree.’ The decisions in those cases furnish no...