Livingston v. . Livingston , 173 N.Y. 377 ( 1903 )

This was an application by the defendant for an order modifying and varying the direction as to alimony, contained in a judgment which had dissolved the marriage of the parties. The application was granted and an order was made changing the provisions of the judgment of divorce, by reducing the amount of alimony ordered to be paid by the defendant to the plaintiff from four thousand dollars to three thousand dollars a year. This order was reversed by the Appellate Division and the motion for the modification of the judgment was denied; whereupon the defendant appealed to this court.

Within the authority of Wetmore v. Wetmore, (162 N.Y. 503), the order is appealable and this court has jurisdiction to review the determination of the Appellate Division. The appeal presents a question of law as to the validity of chapter 742 of the Laws of 1900; in so far as it has amended section 1759 of the Code of Civil Procedure by permitting the court, upon the application of either party to an action, in which a final judgment has been granted dissolving the marriage of the parties and requiring "the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of plaintiff, * * * at any time after final judgment, whetherheretofore or hereafter rendered," to annul, vary or modify such a direction. The amendment was in making the statute apply to judgments theretofore rendered. It was decided below that such legislation violated the constitutional provision, that no person shall be deprived of property without due process of law, (Const. art. 1, § 6), in the attempt to confer a power upon the court to annul, or vary, valid and final judgments theretofore rendered.

The judgment divorcing these parties was rendered in 1892; it decreed the custody of their children to the wife, who was plaintiff in the action, and it ordered the defendant to pay to her, during her lifetime, the sum of four thousand dollars a year, in equal monthly payments in advance, for her support and that of the children. No appeal from the decree was prosecuted by the defendant, and it contained no provision reserving to the court the right thereafter to alter it; nor did the statute, then in force, confer any such power, although it existed where the action was for a separation. (Code Civ. Pro. § 1771.)

What jurisdiction the courts of this state acquired to entertain actions of divorce was conferred, wholly, by statute and their powers are confined to such as are expressed, or as may be incidental to the exercise of the jurisdiction conferred. (Walker v. Walker, 155 N.Y. 77.) Concededly, prior to this amendment, the jurisdiction of the court terminated with the final judgment in divorce actions, and there was neither inherent power in, nor authority conferred by the Code upon, the court to modify the judgment. (Kamp v. Kamp, 59 N.Y. 220; Erkenbrach v. Erkenbrach, 96 ib. 456.) 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. The argument was that the statute was remedial and, therefore, should be given a liberal and retroactive effect, and, while the denial of the contention was placed upon the ground that nothing indicated a legislative intent to affect judgments already entered, Judge MARTIN, in his opinion, added the significant remark that "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."

The argument now made is that the provision for alimony "does not constitute a vested right belonging to the wife;" because, as I understand the contention, alimony, being incidental to the granting of a divorce, is within the discretionary power of the court to vary, according to the altered circumstances of the parties, and is but the wife's "mere potential expectant right" to the particular payments as they become due. It seems to me that, in such an argument, sight is utterly lost of the nature of a decree awarding alimony, or of the right, which accrues to the wife, as the result of an adjudication by the court; when, in divorcing the parties from their respective marital obligations, it fixes the alimony to be paid by the husband. The marriage relation has been terminated by the decree. The wife has no future rights, and the husband is under no future obligations, such as are founded upon, or spring out of, the marriage relation. Judge FINCH observed in Matter of Ensign, (103 N.Y. 284), that, "the court is authorized to give by its decree, in the form of an allowance, a just and adequate substitute for the right of the innocent wife, which the decree cuts off and forbids in the future." By the decree, in this action, the obligation, before resting upon the husband for the support and education of the children and for the support of his wife, was changed. It, thereafter, was made to rest upon the wife and the decree adjudged that the husband should pay to her a certain fixed sum of money in a certain manner, in lieu of his previous obligation. The judgment defined and created a new obligation on his part and as the amendment of the statute, necessarily, affected the wife's right to compel exact performance and bore upon the obligation, to her possible injury, it was obnoxious to the constitutional prohibition. It would be absurd to call it remedial, as affecting merely a remedy upon the decree. Even then, it would violate a substantial right of the plaintiff. It was, however, in fact, the impairment of, or interference with, a vested right conferred by a final judgment. The plaintiff's protection in the enjoyment of her right under the decree is not, necessarily, referable to the prohibition in the Federal Constitution against the impairment of the obligations of contracts. It is not at all necessary, for the plaintiff's purposes, that the judgment of divorce should be deemed a contract. A judgment is not a contract, in the ordinary sense of an agreement reached between persons, to whose terms their mutual assent has been given, and it is in that sense that the word is used in the Federal Constitution. (State ofLouisiana v. Mayor of New Orleans, 109 U.S. 285.) A judgment creates an obligation of the highest nature known to the law and it is enforceable against the judgment debtor as upon his promise to perform it; but that promise is only implied by law. The obligation is imposed; it is not assumed voluntarily. But a final judgment creates and vests substantial rights, and, if the statute were allowed this retroactive effect, a new stipulation would be imported into it, in effect, that the defendant's obligation might be changed upon showing subsequently occurring facts.

In State of Louisiana v. Mayor of New Orleans, (supra), where it was held that a judgment of damages recovered for a tort was not a contract in the constitutional sense, Mr. Justice BRADLEY, in his opinion, takes occasion to say of it, that "it is founded upon an absolute right and is as much an article of property, as anything else that a party owns, and the legislature can no more violate it, without due process of law, than it can other property." In Gilman v. Tucker, (128 N.Y. 190), Chief Judge RUGER, delivering the opinion of this court, said: "We must bear in mind that a judgment has here been rendered and the rights flowing from it have passed beyond the legislative power, either directly, or indirectly, to reach or destroy. After adjudication, the fruits of the judgment become rights of property. These rights became vested by the action of the court and were thereby placed beyond the reach of legislative power to affect." So fixed and so inviolate are the rights secured by a judgment that any legislation, which attempts to deprive a party of their absolute enjoyment, must be condemned. It has been quite recently held, in accordance with a line of authorities, that legislation conferring a right to appeal from a judgment, which, according to existing law, had become final, was violative of section VI of article I of the State Constitution, as depriving a party of his property in a vested right conferred by the judgment. (Germania Sav. Bank v.Village of Suspension Bridge, 159 N.Y. 362; and see Burch v.Newbury, 10 ib. 374.) It is the peculiar privilege enjoyed by the citizens of this country that the legislative body is not above the law and that its powers are prescribed and limited by a written Constitution. Their lawful contracts are beyond legislative interference and they may not be deprived of their vested rights without due process of law. They are secure against an arbitrary exercise of governmental power, which is unrestrained by the established principles of private rights. The judgment in this case, in determining that, for cause, the marriage should be dissolved, also, determined, with equal finality, that the defendant, while released from the general duty, or liability, which he had been under, should pay a fixed sum during the plaintiff's life. Can it, reasonably, be doubted that a right was vested in the plaintiff to the receipt of the annual sums, which the judgment adjudged the defendant should pay? As Judge CULLEN well expressed it, in his dissenting opinion at the Appellate Division, in Walker v. Walker, (21 App. Div. 226), "the plaintiff, prior to the decree, had a right of support; by her divorce, she lost that right and, in substitution for it, acquired a new right, a judgment requiring the payment to her of a specific sum of money." That right, as a vested interest, is property, which the legislature is powerless to divest her of. If the interest is, as it is claimed, an expectant one, in the sense that the obligation of the defendant was a continuing one to pay alimony in the future, nevertheless, the interest was one fixed by the judgment and was not a mere contingency. It was not a capacity to acquire a right to the payment of money; it was a right fixed by the judgment and, hence, vested in the plaintiff. I think enough has been said, in connection with the careful and elaborate opinion of Mr. Justice INGRAHAM, at the Appellate Division, to warrant me in advising the affirmance of the order appealed from, with costs.