
    Catharine L. Tonjes, Respondent and Appellant, v. John H. Tonjes, Appellant and Respondent.
    
      Action for a separation—power of the court to subsequently change the alimony.
    
    The court had po.wer, in November, 1894, to direct, in a final judgment in an action brought to procure a separation, that the plaintiff should have the right to move ior an increase of her allowance and alimony in case -her mother died, or. if a change Should occur in the pecuniary circumstances of her husband.
    
      In an action for separation alimony stands upon a different basis from what it does in an action to dissolve a marriage; as the marriage tie is not severed by a separation, the provision for alimony is at all times the subject of equitable protection and control.
    The amendment, made in 1895 to section 1771 of the Code of Civil Procedure, authorizing either party to an action for a separation to move the court to amend, vary or modify the decree, constitutes remedial legislation and should be liberally construed.
    It is not necessary to determine whether such amendment has a retroactive effect upon decrees of separation granted before its passage, but it may be considered that, as the obligation to support and maintain is a continuing one, the amendment operates upon the subject as it finds it, and, finding it existing, the provisions of the amendment become immediately applicable to a decree of separation in the same manner and to the same extent as any other change in a law, operative upon individual rights.
    Cross-appeals by the plaintiff and defendant from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of November, 1896, which modified the provisions of a judgment in respect to alimony for the support and maintenance of the plaintiff and her children entered in an action for separation.
    
      Henry Schmitt, for the plaintiff.
    
      E. H. Harrison, for the defendant.
   Hatch, J.:

The plaintiff appeals from that part of the order which fixes the sum awarded as alimony to the plaintiff, claiming that the sum allowed is not a proper or sufficient sum to meet • the necessities of the plaintiff and her children, and that the same is disproportionate to defendant’s income and his ability to pay. The defendant appeals from so much of the order as changes the award of alimony for plaintiff’s support and maintenance and the support and maintenance of her children. The last appeal challenges the power of the court to' make the order appealed from. The action is for separation, and the proof offered in support of plaintiff’s right of action was undisputed. The only controverted question in the case related to thé amount of alimony which should be decreed. By the provisions of the final judgment liberty was given to the plaintiff to move for an increase of the allowance and alimony awarded upon the death of the plaintiff’s mother, or upon the occurrence of a change in the pecuniary circumstances of the defendant. It is now claimed by the defendant that the court was without power to make this decree. We might well say, in answer to this claim, that defendant appealed from such decree to the General Term of the Supreme Court, and upon such appeal this part of the decree was affirmed, thus affirming the power in the court so to decree, and if the power existed to decree the right so to move, power exists to make disposition of the motion by a determination of the question based upon the changed circumstances. If, however, we regard . the question as unaffected by the previous decision, we are still able to reach the same result. The decree wus entered November 13,1894. ■ At that time the statutory provisions which control such actions provided for an allowance to be made for the education and maintenance of the children of the marriage and for the support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties. The law in this respect remains unchanged at the present time. (Code Civ. Proc. § 1766.)

The provision of the Code in respect to decrees awarding alimony when this decree was entered, so far, at least, as the sum awarded for the support and maintenance of the children, of the marriage is concerned, authorized an application to the court at any time after final judgment to modify or amend such -final 'judgment. (Code Civ. Proc. § 1771.) The rule in this respect was different as to an action for the dissolution of the marriage. (Chamberlain v. Chamberlain, 63 Hun, 96.) In this respect the decision in Wells v. Wells (10 N. Y. St. Repr. 248) is erroneous. So that even under the law as it then stood express authority existed to make application on behalf of the children of the marriage for a modification of the decree in this respect, and of right upon the part of the defendant to apply to have: the same wholly annulled. Under the decisions, however, it is clear that the sum which is awarded as alimony does not exist as a debt in favor of the wife against the husband in the sense of indebtedness as generally understood ; it is founded upon the marital obligation of the husband to maintain and support the wife and children; it is awarded and made specific in amount by the court ■ as incidental to the decree which is entered, (Romaine v. Chauncey, 129 N. Y. 566.) The specific sum and allowance which is thus made originates in a duty,, is created by the court upon the application of equitable rules, based, upon a consideration of the circumstances of the husband and the» needs of the wife and children, and is at all times the subject of equitable protection. (Wetmore v. Wetmore, 149 N. Y. 520.) This, principle of equitable protection is not limited to the security of the» fund awarded for the purposes for which it was created, but it is,., within the principle of the cases above cited, extended, to and covers., the whole subject-matter of enforcing the obligation which rests, upon the husband to maintain and support the wife. This is the» primary duty, and for this purpose equity creates the fund. We-think, therefore, that it is clearly within the equitable power of the court, not only to tentatively fix the sum which shall be paid at the time when the decree is rendered, but to provide in the decree for a reservation of such question to await any change of condition in the circumstances of the parties which may require the in tea-position of equitable power to work justice by an enforcement of the» primary obligation. In this view it was clearly within the power of the court to make the provision in the judgment which it did, and,, therefore, the power existed to change the award of alimony upon the application which was made. If, however, no provision were, made in a judgment in an action for separation, reserving the right, in the court to subsequently modify or change the same, still we» think such power exists. . It is to be borne in mind that the judgment does not dissolve the marriage contract; that still continues.. The marital relation is so far modified by the decree, based upon, the misconduct of the husband, that the wife is permitted to live, separate and. apart from the husband and he is compelled to comply with the marital obligation to support and maintain. If the husband, while subject to this decree of separation, should obtain an absolute divorce, based upon the misconduct of the wife, it would then be clear that he would be discharged from the marital obligation of maintenance and support. If the decree of separation was final in this regard, then no power would exist in a court of equity to relieve the husband from its obligation. It would be a monstrous perversion of justice to say that the husband was bound by a decree resting upon the obligation to maintain and support, when by his, judgment such obligation was swept away. Equity permits of no such result. As the decree awarding alimony in an action of separa-' tion is of equitable creation, based upon the marital' obligation to maintain, when that Support is swept away equity will, upon proper . application, decree that the former obligation created by the judgment is also swep>t away. It seems plain, therefore, that in actions ■of separation, where the obligation to support and maintain is a ■continuing one, it is at all times within the piower of a court of ■equity to take cognizance of this subject, although there exists no spfecial statutory authority upon the subject. In this respect the case differs from that of a judgment for a dissolution of the marriage. In such case the contract of marriage ceases, and the. obligation of support and maintenance is only continued by the’ p>rovisions of the judgment. In the other case the obligation continues irrespective of the judgment. The right, however, in case of absolute divorce, to apply for modification of the decree awarding alimony is now secured by statute-. (Code Civ. Proc. § 1771.)

If, however, it should be assumed that there existed no paower in the court to reserve the right to change or modify the decree awarding alimony at the time when this decree was entered, and that the court possessed no piower in that regard, still, we think, it would furnish no answer to the pn-esent application. In 1895, section 1771 was amended by authorizing either party to an action for an absolute divorce or for a sepoaration, to move the court to afnend, vary or modify the decree providing for the custody, care, ■education and maintenance of the children of the marriage, and, where the wife is the pdaintiff, for her support. By virtue of this authority, a clear right is given to make this application. The statute is remedial; it was designed to confer p>ower necessary to be exercised in order to prevent injustice. The books abound in instances where the alimony decreed to be p>aid in final judgment has piroved greater than the. entire income of the party charged with the continuing burden of the decree, by reason of changed circumstances land loss of property," or the offending party has risen to affluence since the decree was rendered and could p>ay much more. In either event the court was paowerle'ss to work any change of condition by subtracting from or adding to; the burden imposed. Tet, if the offending party failed to pay, although his income was gone, upon which the decree was based, he might be imprisoned. On the other hand, an innocent wife might he compelled to eke out a miserable existence upon a mere pittance, while a guilty husband revelled in. luxury which a change of fortune had produced. The only relief lay with the Legislature, and through it the courts are now vested with authority to remedy any injustice which has been or may he wrought. The statute being remedial, courts are bound to give it its largest, fullest and most extensive meaning; in other words, a liberal construction. (Endlich Interp. Stat. §§ 107, 108 et seq) The true rule for the construction of this statute is stated by Judge Allen in The People v. Suprs. of Columbia Co. (43 N. Y. 132), where he says: The occasion of the enactment of a law may always be referred to in interpreting and giving effect to it. The court should place itself in the situation of the Legislature and ascertain the necessity and probable object of the statute, and then give such construction to the language used as to carry the intention of the Legislature into effect, so far as it can be ascertained from the terms of the statute itself.” And this is the true rule in determination of the question whether the act is prospective or retroactive. (People ex rel. Collins v. Spicer, 99 N. Y. 225.)

It is not needful that we should now determine whether this amendment has a retroactive effect upon decrees dissolving the marriage absolutely, as such question is not essential to a disposition of this case. 27or is it essential to say that it has a retroactive effect upon decrees in separation heretofore granted. As we have seen, in the latter class of cases the obligation to support and maintain is a continuing obligation, and this amendment operates upon this subject as it finds it, and finding it existing, its provisions become immediately applicable thereto in the same manner and to the same extent as any other change in a law operates upon individual rights. In any view, therefore, the court was possessed of power to make the order appealed from, and defendant’s appeal must, therefore, fail.

So far as plaintiff’s appeal is concerned, we are of opinion that the amount awarded by the court, in its order modifying the decree, is fairly sufficient to meet the wants of the plaintiff and her children, and is fairly sufficient for their comfortable support and maintenance, and that her appeal in this respect should be denied.

As we have seen, the right to apply for a modification or amendment of the decree awarding alimony and maintenance is open to both parties; the order permitting such an application by defendant can work no harm to plaintiff.

The order appealed from should be affirmed, without' costs and disbursements to plaintiff.

All concurred.

Order affirmed, without costs.  