
    Mary E. White, Respondent, v. William W. White, Appellant.
    Second Department,
    December 30, 1912.
    Husband and wife — divorce — decree not providing for support of children— modification of decree — constitutional law — section 1771 of the Code of Civil Procedure though retroactive, not unconstitutional.
    Although a decree of absolute divorce in favor of a wife which awarded her custody of a Child of the marriage made no provision for the maintenance of the child or for alimony, the father was not thereby relieved of his common-law duty to support his .child, although the wife may have waived her right to alimony.
    The decree was not binding upon the child and it may be amended, on proper notice to the father, by inserting a provision requiring him to pay to the mother a weekly Sum for the maintenance and education of the child where the mother shows that she is no longer able to support it herself.
    Although the provision of section 1759 of the Code of Civil Procedure empowering the court to ¡annul, vary of modify a decree for alimony or for the support and education of children of the marriage was held to be unconstitutional, as applied to decrees entered before it took effect,- said section has no relation to a case where no provision for alimony or for support and maintenance of children was made, as in such case there was nothing to annul, vary of modify.
    The jurisdiction of the courts of this State over actions for divorce is wholly statutory and the powers of the court are confined to such as are expressed or may be incidental to the exercise of the jurisdiction conferred.
    Those provisions of section 1771 of the Code of Civil Procedure which authorize the court in matrimonial actions to modify a decree respecting the education and maintenance of children of a marriage although retroactive are not unconstitutional, and a decree entered prior to the time said provisions went into effect may be modified on motion so as to compel a divorced husband to pay money to his wife for the support and education of his child.
    Appeal by the defendant, William W. White, 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 Suffolk on the SHh day of July, 1912, amending a judgment of divorce and directing the husband to provide a sum of money weekly for the support and maintenance of a child of the marriage.
    
      
      Arthur H. Cameron [George C. Eldridge with him on the brief], for the appellant.
    
      Maurice J. Katz [Charles Weishaupt with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff sued the defendant for an absolute divorce, the action resulting in a judgment entered on the 31st day of January, 1905. The judgment, among other things, provided that the plaintiff have the care, custody and education of Le Eoy W. White, the child of said marriage,” making no provision for the maintenance of such child or of the plaintiff. This was, in effect, an adjudication that the defendant, as the father of the child, had so far sacrificed the rights of a parent as to be no longer entitled to the general right to support and maintain such child in his own home, but it in no manner relieved him from the obligation which the parent owes to the State to support his own lawful issue, however loosely or inadequately that obligation may be defined. (Salomon v. Salomon, 101 App. Div. 588, 590.) Nor could the omission of a provision in the judgment to maintain the child of the marriage operate to estop the State from subsequently compelling the defendant to discharge this obligation, either directly or by means of an amendment of the judgment in the original action upon proper notice. As between the plaintiff and defendant, of course, the judgment is conclusive; by not insisting upon the provisions of law for her own support and maintenance, the plaintiff would be deemed to have waived the right, and the judgment would be construed as an adjudication that there was no necessity for a provision upon the subject. (Salomon v. Salomon, supra.) But this adjudication is not binding upon the children. (Id.) It does not abrogate them right to support from the father, at least not when the mother is no longer able to afford such support, and the particular manner which the legislative department of the government shall devise for the enforcement of this obligation on the part of the father ought not to be limited except by express constitutional provisions.

In the case now before us the plaintiff, after supporting herself and child for seven years, asserts that she has become destitute, and that she is no longer able to stand the expense. She has, therefore, moved for an order amending the judgment by adding thereto a direction to the defendant to pay to the plaintiff a reasonable sum for the support of the plaintiff and for the support and maintenance of her child. This motion resulted in an order entered July 27, 1912, amending the judgment by directing the defendant to pay to the plaintiff six dollars per week “permanently or until the further order or direction of the court, for the support, maintenance and education ” of said child, and the only question presented upon this appeal by the defendant from such order is whether the court had power to so amend the judgment.

At the time judgment was entered in the present action, section 1159 of the Code of Civil Procedure provided that where the action for divorce was brought by the wife, the court “may, 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 plaintiff, as justice requires, having regard to the circumstances of the respective parties; and may, by order, upon the application of either party to the action, and after due notice to the other, to be given in such manner as the court shall prescribe, at any time after final judgment whether heretofore or hereafter rendered, annul, vary or modify such a direction.” This provision, as affecting alimony awarded under judgments heretofore existing, has been held unconstitutional, as taking the property of the plaintiff in her judgment without due process of law. (Livingston v. Livingston, 173 N. Y. 377, 379.) It, however, has no relation to the present case, as there was no provision for alimony or for the support and maintenance of the child of the marriage in the final judgment, so that there is nothing to “ annul, vary or modify ” of “such a direction.” The jurisdiction of the courts of this State over actions for divorces was conferred wholly by statute, and their powers are confined to such as are expressed or may he incidental to the exercise of the jurisdiction conferred. (Livingston v. Livingston, supra, 377, 380, and authority there cited,) W© must look beyond the' provisions of section 1759 for the power sought to be exercised in the case at bar.

A similar provision was made by section 1771 of the Code of Civil Procedure, the language being that “the court must, except as otherwise expressly prescribed in those articles [relating to divorces and separations], give, either in the final judgment, or by one or more orders, made from time to time, before final judgment, such directions as justice requires, between the parties, for the custody, care, education and maintenance of any of the children of the marriage, and where the action is brought by the wife, for the support of the plaintiff. The court may, by order, upon the application of either party to the action after due notice to the other, to be given in such manner as the court shall prescribe, at any time after final judgment, annul, vary or modify such directions.” This would authorize the court, no doubt, to make an order annulling, varying or modifying the order in respect to the custody of the child; it would permit, under proper circumstances, the making of an order allowing the defendant to have the custody of the child a portion of the time, or it might go to the extent of giving the defendant the entire custody of the child, with the incidental duty of maintaining such child, and it would not be a great stretch of construction to hold that the power to “ annul, vary or modify such directions ” carried with it the power to vary the provision for custody by a condition that this custody should be at the expense of the defendant. “ Vary” is defined to be “To change to something else ” (39 Oyc. 1125), and it would seem to be a word of sufficient scope to give the court the power above suggested in the interest of justice.

It does not seem necessary, however, to go to this length in support of the order now before us, for the reason that the Legislature, in 1908, amended section lYYlof the Code of Civil Procedure, so that it now provides in a case of the character now under review, that the “court may, by order, * * * at any time after final judgment, annul, vary or modify such directions, or in case no such direction or directions shall have been made, amend it by inserting such direction or directions as justice requires for the custody, care, education and maintenance of any such child or children in such final judgment or order or orders.” This provision was enacted in 1908, and was obviously designed to meet just such a situation as we have before us, if it be assumed that the power to “ annul, vary or modify such directions ” does not permit of a variance of a provision in the judgment for the custody of the child such as above suggested, and to make effective what was evidently intended in the original statute, for it will not be presumed that the Legislature ever intended that the innocent children of a marriage should be deprived of their right to support and maintenance by the father simply because the mother, in conducting an action for divorce, was content to accept a judgment without provision for her own or her children’s support. ‘1 It may be said,” to quote the language of the United States Supreme Court in the case of Blount v. Windley (95 U. S. 173, 180), “ that this legislation is retroactive; and, as applied to the case before us, it is so. But there is no constitutional inhibition against retrospective laws. Though generally distrusted, they are often beneficial, and sometimes necessary. Where they violate no provision of the Constitution of the United States, there exists no power in this court to declare them void.” This is not a case in which alimony has been fixed and determined by a final judgment; it involves no rights of the parties to the action, but concerns the right of the child of the marriage between the parties, and it does not come within the reason of the rule which condemns retroactive legislation. “ Upon principle,” says Hr. Justice Stoby in Society for Propagation of the Gospel v. Wheeler (2 Gall. 139), “ every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect tó transactions Or considerations already past, must be deemed"retrospective.” (See Sturges v. Carter, 114 U. S. 511, 519.) The act of 1908 (Chap. 291) took away no vested right of the defendant; he could have no vested right in a judgment in favor of his wife, in which she had .merely neglected to impose upon him the mandate of the court to provide for the support of the child of the marriage. The act did not impose any new obligation; the obligation to care and provide for children is imposed by the contract of marriage and becomes operative upon the birth of every legitimate child. It is obvious that it created no new duty; that it attached no new disability in respect to ■ transactions or considerations already passed. It simply provided a means of enforcing the duties and obligations which the defendant owed to the child of the marriage, and is no more to be criticised as retrospective legislation than would be an act of the Legislature which should declare that every father of a legitimate child should provide for his support, notwithstanding that the custody of such child had been taken away by the court for any reason whatever. The judgment of divorce in the case now before us could not be urged against such a statute. The act would merely continue the duty and obligation accepted in entering into the marriage contract, and no g’ood reason suggests itself to our mind why the same result may not be reached properly by means of an order, on proper notice to the party to be affected, in the action, .even though the legislation authorizing such proceeding was enacted after the judgment had become final as between the parties thereto. It gave a new remedy to the State for enforcing a right which it had all the time possessed, namely, the right to compel the father of a legitimate child to provide for its support and maintenance. (Sturges v. Carter, 114 U. S. 511, 518.) Because the defendant has been permitted to escape the obligations of parenthood for a period of seven years does not give him a vested right to continue to do so, and we are clearly of the opinion that the court was authorized by the provisions of section 1771 of the Code of Civil Procedure to amend the judgment and to enforce the obligations which the defendant owed to the child of the marriage and to the State.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Hirschberg-, Burr, Thomas and Carr, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  