Opinion
May, 1910.
Griggs, Baldwin Pierce (Martin Conboy and Philip S. Hill of counsel), for appellant.
John Francis Heffernan (John J. Dockry, of counsel), for respondent.
This action is brought to recover unpaid alimony, accrued since April 1, 1908, under a decree of absolute divorce entered on May 15, 1907, in the Supreme Court of the District of Columbia. The decree is absolute in form, and the complaint makes no reference to any law of the District of Columbia relative to the power of the court to modify a decree of this character.
A demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action was overruled.
In support of the demurrer, it is urged that a decree for alimony to accrue after entry of a decree, i.e., for what is commonly known as future alimony, lacks the conclusiveness essential to entitle it, in another State, to "full faith and credit" under the Federal Constitution.
A final decree for future alimony, however, is, in the absence of qualification in the decree itself, or of a statutory provision permitting it to be subsequently modified, quite as final and conclusive as any other decree. While there are expressions to the contrary in some cases in other States (see Barclay v. Barclay, 184 Ill. 375, which, by the way, was an action for a separation only), our Court of Appeals has never subscribed to that doctrine.
Since the Revised Statutes of 1829 (2 R.S. 145, § 45, subsequently embodied in Code Civ. Pro., § 1759), and until the act of 1894, which first permitted subsequent modification of a decree for alimony, such a decree was unchangeable.
In Walker v. Walker, 155 N.Y. 77, 80 (decided in 1898), and again in Livingston v. Livingston, 173 N.Y. 377, 380 (decided in 1903), the Court of Appeals distinctly held that alimony granted in decrees entered in 1891 and 1892, respectively, constituted a vested interest in favor of the wife which could not be reduced by future legislation; and that Laws of 1894, chapter 728; Laws of 1895, chapter 891, and Laws of 1900, chapter 742 (being the present section 1759 of the Code) were ineffective to warrant the modification of such a decree.
There is nothing, therefore, in a decree for future alimony to differentiate it from any other decree, in so far as its finality may be concerned.
In the case of Lynde v. Lynde, 162 N.Y. 405, 408, 418; affd., 181 U.S. 183, the decree of divorce upon which suit was brought in itself contained the reservation of the right to change the amount of future alimony. In the case of Israel v. Israel, 148 Fed. Rep. (C.C.A.) 576, arising in Pennsylvania, upon facts similar to those of the Lynde case, supra, it appears, at page 577, that that statute of New York, now in force, was put in evidence. The court, therefore, was properly made aware of the tentative character of the decree, so far as it related to future alimony.
It remains then to consider whether we may indulge in any presumption that the law of the District of Columbia in respect of such decrees is the same as section 1759 of our Code.
In the absence of proof of the law of any other State, there is no presumption that the statutes of this State are there in force; that presumption applies only to the common law. Vanderpoel v. Gorman, 140 N.Y. 563, 568; First National Bank v. National Broadway Bank, 156 id. 457, 472; Lewisohn v. Kent Stanley Co., 87 Hun, 257, 260.
The jurisdiction of the courts of our State over the subject of divorce, however, is derived exclusively from statute (Walker v. Walker, supra), it having been repeatedly held that the Colony did not take over the law of England respecting divorce as it existed at the time of the separation. See Gilbert Dom. Rel. (2d ed.) p. 41, notes, and cases there cited.
Upon all these considerations, it appearing that the decree for alimony in the case at bar is final in form, and there being neither allegation in the complaint nor warranted presumption that such a decree is subject to modification, an action may properly be maintained in this State, based upon the decree; and the demurrer was, therefore, properly overruled.
Interlocutory judgment affirmed, with costs, with leave to defendant to answer within six days upon payment of costs in this court and in the court below.
SEABURY and GUY, JJ., concur.
Interlocutory judgment affirmed, with costs, with leave to defendant to answer within six days upon payment of costs.