In Walker v. Walker, 155 N.Y. 77, and Livingston v. Livingston, 173 N.Y. 377, the effect of the holdings is that a judgment for alimony, in the absence of reservation, is a fixed and unalterable determination of the amount to be contributed to the wife's support after the decree, and is beyond the power of the court to change even under the authority of subsequent legislation.Summary of this case from Wetmore v. Markoe
Argued January 10, 1898
Decided March 1, 1898
Daniel P. Mahony for appellant.
Roger Foster for appellant. Max Meyer and William Phlippeau for respondent.
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. (§ 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 mistakes in the record. ( Kamp v. Kamp, 59 N.Y. 212; Erkenbrach v. Erkenbrach, supra; Chamberlain v. Chamberlain, 63 Hun, 96.)
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), and Wetmore v. Wetmore ( 149 N.Y. 520). 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 authority for the doctrine that, under the statute as it stood in 1891, the amount of alimony might be changed after a final judgment is entered.
Another ground upon which the respondent seeks to defeat this appeal is, that the statute as it existed in 1891 was amended by chapter 728 of the Laws of 1894 and chapter 891 of the Laws of 1895 by adding a provision to the effect that the court might, after a final judgment, annul, vary or modify such a direction, and that, under the statute as thus amended, an order might be made to change the amount of the alimony allowed. In determining the effect of these amendments, the question arises whether they were retroactive and thereby conferred upon the court authority to alter, vary or modify a final judgment which had been previously entered in pursuance of a statute which contained no such provision. The general rule is that an original statute, or an amendment, will be construed as prospective only, unless the language clearly and plainly indicates a contrary purpose, and it will not be given a retroactive effect when it is capable of any other construction. (Sutherland on Statutory Construction, p. 600; Dash v. Van Kleeck, 7 Johns. 477; People v. Supervisors, 43 N.Y. 120; Benton v. Wickwire, 54 N.Y. 226, 229; N.Y. Oswego M.R.R. Co., v. Van Horn, 57 N.Y. 473, 477; People v. McCall, 94 N.Y. 587; People v. O'Brien, 111 N.Y. 1, 60.) There is nothing in the amendments under consideration to show that they were intended to have other than a prospective effect. But it is urged that as the statute was a remedial one, a different construction should obtain. While it has been held that remedial statutes may have a retroactive effect where it is clear that the legislature so intended, still, as there is in these amendments nothing to indicate any intent upon the part of the legislature that they should affect judgments already entered, they fall within the general rule, and not within any exception. If the doctrine contended for was sustained, it would apply to the reduction of alimony in judgments existing when the amendments were adopted, as well as to its increase. If such an effect was given to them their constitutionality might well be doubted, as they might affect the vested rights of a party, and impair the obligation of contracts. We think they should receive no such construction, but should be held to have only a prospective effect and to apply only to judgments entered subsequently to their passage. Hence, the Supreme Court had no authority to make the order appealed from.
The orders of the Appellate Division and Special Term should be reversed, the motion denied, and the question certified to this court answered in the negative, with costs in all the courts.
All concur, except GRAY, J., absent.
Orders reversed, etc.