
    Lida G. Chamberlain, App’lt, v. Allen Chamberlain, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 13, 1892.)
    
    Divorce—Alimony—Amendment of decree.
    After judgment in an action for absolute divorce the judgment can neither be modified nor an order made so as to provide for the care, custody and education of the. children, if not provided for by such judgment, or by changing the provisions of the judgment in that respect.
    Appeal from an order, entered in Broome county, February 4, 1891, denying the plaintiff’s motion for an order directing the decree herein to be so modified as to require the respondent to pay the appellant for the care, support, maintenance and education of the children of their marriage.
    
      H. S. Williams, for app’lt'; A. D. Wales, for resp't.
   Martin, J.

This action was for divorce. The judgment granted the plaintiff an absolute divorce and the custody of their two infant children. The plaintiff sought, by motion at special term, to obtain an order modifying it so that it should provide for the payment by the defendant to the plaintiff of certain sums for the support, care, maintenance and education of the children.. The plaintiff’s complaint asked for a judgment of divorce and the custody of the children, but contained no prayer for alimony, or for any allowance for such care and maintenance. The special term denied the appellant’s motion upon the sole ground that it. had no authority to grant the relief sought. Thus, the only question before" us is, whether the court possessed the power to order such a modification of the judgment.

It is well settled that the courts of this state have no common law jurisdiction over the subject of divorces, and that their authority is confined to the exercise of such express and incidental powers as are conferred by statute. (Erkenbrach v. Erkenbrach, 96 N. Y., 463.) Therefore, we must seek for authority to modify this judgment, if it exists, in some statute by which the power to. do so was expressly or incidentally conferred. Do the statutes as; they now stand, or as they stood when this judgment was entered,, confer such authority ? This question is dependent for its solution upon the construction of the present statutes relating to this subject, as there has been no change since this action was commenced.

Before the adoption of the last eight chapters of the Code of' Civil Procedure, actions like this were regulated by the provisions, of the Revised Statutes. Section 59, tit. 1, chap. 8, pt. 2 of the Revised Statutes, provided: “ In any suit brought by a married woman for a divorce, or for a separation from her husband, the court in which the same shall be pending may, during the pend-ency of- the cause, or at its final hearing, or afterwards, as occasion may require, make such order as between the parties for the custody, care and education of the children of the marriage as may seem necessary and proper, and may at any time thereafter annul, vary or modify such order.”

Under the provisions of this statute it was held that after a final decree an order might be granted in such an action making provision for the care, custody and education of the children of the marriage, and that there was no distinction in this respect between an action for separation and one for an absolute divorce. Erkenbrach v. Erkenbrach, supra; Washburn v. Catlin, 97 N. Y., 623. That statute was, however, repealed by chapter 245 of the Laws of 1880.

The Code of Civil Procedure now contains the only existing statutes relating to the subject. It is provided by § 1759, subdivision 2, that vrhere the action is 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 the plaintiff, .as justice requires, having regard to the circumstances of the respective parties.” While § 1771 declares, “ Where an action is brought by either husband or wife, as prescribed in either of the last two articles (being articles 2 and 3, the former relating to an action for divorce, and the latter to an action for separation), the court must, except as otherwise expressly prescribed in those •articles, 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 and education of any of the children of the marriage. Where the action was brought, as prescribed in article 3 of this title, the •court may by order, at any time after final judgment, annul, vary, or modify such a direction.”

These sections of the Code are a revision of §§ 45 and 59 ■of title 1, chapter 8, part 2 of the Revised Statutes. Mr. Throop, in his notes to those sections of the Code, states that §§ 45 and 59 have in the revision been so amended as to make them conform to the theory of the decision of the' court of appeals in Kamp v. Kamp (59 N. Y., 212), where it was held that in an action for divorce a vinculo the jurisdiction of the court over the subject-matter of the action and over the parties in all respects as to matters involved in it terminates with the entry of final judgment therein, save for the enforcement or correction of the judgment; that where the action is ]?y the wife, her claim for alimony is to be determined by the situation of herself and husband at the time of making the decree ; that if no provision for her is made therein, it is to be presumed that the court -decided adversely to her claim, and the decree is equally final as if such provision had been made, and that the court has no power on subsequent application showing circumstances thereafter arising to award alimony.

Thus if we rely upon the notes to those sections as evidence of the intent of the amendments, it would seem that it was intended to change the rule as it existed under the former statutes, so that after judgment in an action for an absolute divorce the judgment could neither be modified nor an order made so as to provide for the care, custody and education of the children if not. provided for by such judgment, or by changing the provisions of the judgment in that respect, and by applying to such a case the same rule as formerly existed in regard to alimony for the wife, under the decision of Kamp v. Kamp. This intent is made more manifest by the change made in the language of the statute. The former statute provided that in such an action the court might, during the pendency of the action, at its final hearing, or after-wards, make the order. The statute as it now stands provides, that the court may make such an order before final judgment (§ 1771), and such a provision may also be included in the final judgment (§. 1759, subd. 2). There is now no provision in the statute authorizing the making of such an order after judgment. Thus it becomes quite evident that it was the intention of the legislature to change the statute as stated in Mr. Throop’s notes to the Code. This is rendered more obvious by the last paragraph of § 1771, which provides, where the action is for a separation, that the court may at any time after final judgment vary or modify such direction, but makes no such provision when the action is for a divorce.

It is true that in Wells v. Wells (10 St. Rep., 248), a contrary doctrine was held, biit an examination of that case discloses that the court construed § 1771 as though it expressly provided that an order might be granted in an action for a divorce annulling, varying or modifying a direction as to the care, custody and education of the children contained in a judgment in such actions. It is quite manifest that the fact that the last paragraph of that section is applicable only to an action for a separation, and not to an action for a divorce, escaped the attention of the court. This misapprehension is so apparent from reading the opinion in that case that we do not think it should be followed.

The other cases cited by the appellant were decided under the statute as it existed before the adoption of that portion of the Code which relates to this subject. These considerations lead us to the conclusion that the order appealed from should be affirmed.

Order affirmed, without costs to either .party.

Hardin, P. J., and Merwin, J., concur.  