Summary
In Rigney v. Rigney, 62 N. J. Eq. 8, 49 A. 460, 461, it was held: "The statutory jurisdiction to vary the amount of alimony from time to time, which is found in this legislation (2 Gen. St. p. 1269, § 19), will not, in my judgment, be ousted because the decree has omitted to reserve to the parties the right to apply for such variation.
Summary of this case from Williams v. WilliamsOpinion
06-07-1901
RIGNEY v. RIGNEY.
James P. Northup. for petitioner. M. T. Rosenberg, for complainant.
(Syllabus by the Court.
Rill by Ella L. Rigney against Thomas G. Rigney for the modification of a decree for alimony. Petition dismissed.
James P. Northup. for petitioner.
M. T. Rosenberg, for complainant.
MAGIE, Ch. A petition in the above-entitled cause has been presented by Abigail R. Rigney, claiming to be the executrix of the last will of Thomas G. Rigney, late of the state and county of New York, who was the defendant therein. The petition purports to recite a decree of this court, made in the said cause on the 11th day of June, 1887, whereby the parties to the said cause were divorced from the bond of matrimony, and the custody of the two children of their marriage was awarded to the complainant, and defendant was decreed to pay to the complainant alimony pendente life, and alimony from the date of the decree, at the rate of $45 per week for complainant's support and maintenance, and the support, maintenance, and education of their children. It is asserted in the petition that the petitioner intermarried with the defendant on August 27, 1987, and lived with him as his wife until his death, May 23, 1898, when she was left his widow, with four children of their marriage. The petition also asserts that the deceased, Thomas G. Rigney, left a will, subsequently admitted to probate by the surrogate of the county of New York, upon which letters testamentary were issued to the petitioner as sole executrix, and that after the said letters were granted to petitioner the said complainant filed a claim against the petitioner as such executrix, which the petitioner rejected; and thereupon the complainant brought an action in the supreme court of the state of New York against petitioner, as executrix, to recover the amount of alimony alleged to be due upon the said decree from the 4th day of August, 1887, to the death of the defendant. The petition further asserts that the complainant in this cause intermarried with one Edgar L. Laing in June, 1889, and lived with him until his death, in the latter part of the year 1899. and that the two children of the complainant had resided with the said Laing during that time, and it is asserted (upon the belief of the petitioner) that Laing was, during the continuance of his marriage relation with the complainant, able to support and maintain, and did support and maintain, complainant as his wife. The prayer of the petition is for an order varying or modifying the former decree in the said cause. An affidavit of the petitioner is appended to the petition, verifying it as far as the same asserts her own acts and deeds, and her belief of its truth in respect to what it asserts as to the deeds of others. The affidavit was sworn to August 20, 1900. The complainant presents an answer to the said petition. She thereby admits that a decree substantially such as is set out in the petition was made in the above-entitled cause, except that the decree, in addition, adjudged that the defendant should pay the costs of the action. The complainant in the answer asserts that the defendant, before the decree was made, removed from New Jersey, where complainant and defendant had previously resided, and thereafter continued to absent himself from New Jersey, and to remain in the state of New York; that she was compelled to bring an action against the defendant in New York on August 4, 1887, for the costs and the alimony then accrued, and which the decree adjudged defendant should pay to her; that defendant contested her right to recover upon said decree through the courts of New York, and in the supreme court of the United States, and after she had secured a judgmentin her favor on June 29, 1897, defendant attempted to evade the payment, and did succeed in evading payment until by supplementary proceedings she recovered part of the Judgment in his lifetime, and the remainder after his death. Complainant further asserts in her answer that no part of the alimony decreed to be paid to her has ever been paid, except that which had accrued August 4, 1887, and which she secured by the judgment above mentioned. The answer further shows that, after the death of the defendant, complainant presented to the petitioner, as defendant's executrix, a claim for the alimony which accrued from August 4, 1887, to his death, on May 23, 1898, and, the claim being rejected, she brought suit against the petitioner, as his executrix, in New York, for such alimony, which suit petitioner is resisting. The answer admits the marriage of the petitioner with the defendant August 27, 1887, and complainant's own marriage to Laing in June, 1889, and that one of her children by the defendant became of age January 1, 1895, and the other October 15, 1897. The answer further asserts that Laing never contributed to the support of her children, but their support came from the complainant's means and the labor of herself and the children. There is no affidavit annexed to the answer, but it purports to be signed by the complainant, and to have been sworn to September 8, 1900, before a notary public of New York.
Neither the petition nor the answer has been tiled. Both were first presented on May 15, 1901. This practice is irregular, and not to be encouraged.
Upon the petition and answer thus presented briefs have been submitted, and counsel for the petitioner urge that I may and should make some order in conformity with the prayer of the petition. They do not maintain that the decree in question may be annulled as is prayed for. Manifestly, no such course could be taken. It was made in a cause the subject-matter of which was within the jurisdiction of this court, and it has been solemnly adjudged in the supreme court of the United States that this court had obtained jurisdiction of the defendant against whom it was made. Laing v. Rigney, 160 U. S. 539, 16 Sup. Ct. 366, 40 L. Ed. 525. There is no pretense that the decree does not express (as it was finally entered) the real judgment of the court, nor that it was obtained by any fraud or under any mistake. Nor do they ask that an order should be now made for a modification of the decree as now prayed for, but a reference to a master to ascertain what complainant in equity is entitled to under the decree. It will be observed that such a reference assumes the right in this court to make a decree, different not in respect to its operation in the future, for that ceased on the death of the defendant, but to its operation in the past. Under the former practice, a decree awarding permanent alimony contained a clause giving liberty to the parties to the cause to apply, on future change of circumstances, for a variation and modification of the decree as to such alimony. An example of this practice will be found in the decree appended to the opinion of Chancellor Pennington in Richmond v. Richmond, 2 N. J. Eq. 91. See, also, Miller v. Miller, 1 N. J. Eq. 386; Snover v. Snover, 13 N. J. Eq. 261; 2 Bish. Mar. & Div. § 428.
Under a New York statute conferring jurisdiction to decree permanent alimony, but without providing for subsequent variation or alteration of the decree, it was held that a decree once made was irrevocable, notwithstanding changed circumstances. Walker v. Walker, 155 N. Y. 77, 49 N. E. 663. By the legislation in this state now contained in section 19 of the divorce act (2 Gen. St. p. 1269), this court has been empowered to make such order respecting alimony "as from the circumstances of the case shall be fit, reasonable, and just." This language, standing alone, might reasonably be construed to give jurisdiction to alter and vary the allowance made thereunder according to the changed circumstances of the parties. But such a construction is required to be given to that language in view of the subsequent provision in the same section for the sequestration of the property of the defendant, which is expressly declared to be applicable to the maintenance and allowance fixed by the decree, or to "such maintenance and allowance as to the said court shall from time to time seem reasonable and just." Such was the view expressed by Chancellor Pennington, Richmond v. Richmond, supra.
Application to vary a decree in this respect may be made by petition in the cause. Snover v. Snover, supra; Id., 17 N. J. Eq. 85. Such an application is not one involving a review of the propriety of the decree as made. It must exhibit changed circumstances and new facts which have arisen since the decree. To succeed on such an application, there must be clear proof of such new facts and circumstances as will justify and require a variation in the amount of alimony allowed, either increasing or diminishing it. 2 Bish. Mar. & Div. §§ 429, 429a, 433. There must appear to be cogent reason for diminishing the amount of alimony. Barrett v. Barrett, 41 N. J. Eq. 139, 3 Atl. 689. The statutory jurisdiction to vary the amount of alimony from time to time, which is found in this legislation, will not, in my judgment, be ousted because the decree has omitted to reserve to the parties the right to apply for such variation. The defendant in the original action, therefore, had a right to apply for and urge the reduction of the amount of alimony allowed by the decree, upon proof of changed circumstances and conditions. The claim of petitioner is that, upon complainant's marriage to Laing, the defendant could have so applied, and upon proof ofsuch marriage this court would have diminished the amount allowed by so much as was included therein for complainant's support and maintenance. What this reduction would have been, if any was proper to be made, does not appear. It is not claimed in the petition, but yet it is obvious, that the defendant might have also applied for a reduction of the amount allowed by the decree when the children for whose support and maintenance the decree was in part made came to years when they became self-supporting, or, at least, when they became of age. In Snover v. Snover, supra, the chancellor suggested that a defendant, in similar circumstances, might apply for a reduction of the allowance made in respect to a female child, when the child had attained the age of 18 years.
The defendant in the action neglected to present to the court the suggested changes of circumstances, or to ask the variation or modilication of the decree on either ground. The petition discloses no reason for such neglect, but, on the facts disclosed by the answer, it is apparent that the cause was his continued and obstinate resistance to the decree, and his purpose not to perform it by paying the alimony. An application on his part would not have moved this court to give him relief by reducing the alimony, except upon condition that he should obey the decree at least by payment of the alimony up to the time when the changed circumstances were shown to exist, and to justify the reduction. While resisting the decree (and, according to the answer, his resistance continued until his death), he manifestly had no right to relief. What he could not have done while he lived his executrix, in my judgment, may not do after his death. The decree which he resisted, and neglected to assail by an application for variation, must stand unvaried. How far the decree is binding on the executrix, or the estate which she is administering, in a foreign state, is not for this court to determine. The relief applied for must be denied, and the petition dismissed, with costs.