From Casetext: Smarter Legal Research

Walker v. Walker

Court of Appeals of the State of New York
Mar 1, 1898
49 N.E. 663 (N.Y. 1898)

Summary

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

Opinion

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.


Summaries of

Walker v. Walker

Court of Appeals of the State of New York
Mar 1, 1898
49 N.E. 663 (N.Y. 1898)

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

In Walker v. Walker, the order increased the amount of alimony awarded by a final judgment of divorce, which was lacking in any provision reserving the power to change it, and the discussion in this court related to the effect of the section of the Code, at that time, (1897), in permitting the court, after a final judgment, to annul, vary, or modify it, in its direction for the payment of alimony.

Summary of this case from Livingston v. Livingston

In Walker v. Walker the question arose upon an appeal from the order modifying the judgment by granting alimony, and it appeared that no reservation of the question of alimony had been made by the court, and, because of that fact, that case is not authority in the case at bar.

Summary of this case from Hauscheld v. Hauscheld

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.

Summary of this case from Patton v. Patton
Case details for

Walker v. Walker

Case Details

Full title:FRANCES S. WALKER, Respondent, v . FRANK B. WALKER, Appellant

Court:Court of Appeals of the State of New York

Date published: Mar 1, 1898

Citations

49 N.E. 663 (N.Y. 1898)
49 N.E. 663

Citing Cases

Wetmore v. Markoe

The decree of divorce of April 1, 1892, containing no provision by virtue of which it may be modified,…

Livingston v. Livingston

In this judgment of divorce there was no provision reserving the right of the court thereafter to modify it;…