
    Estelle L. Salomon, Appellant, v. Sidney H. Salomon, Respondent.
    
      Custody of children by the court—its power to enforce the duty of a father to support them by a decree in an action for separation or divorce — it has no power to amend a decree making no provision on the subject — the court is hot compelled to make such a provision in a decree — practice of reserving the right in a decree to thereafter make such provision, approved.
    
    The court has inherent power over the custody and control of children. Its power to provide for their support in actions for separation and divorce is, however, purely statutory and the court' cannot enforce a father’s duty to support his children by an order or decree made in an action for separation or divorce except to the extent that it is expressly authorized to do so by statute. Where the final decree, granting a wife an absolute divorce from her husband, awards to the wife the custody of the infant, children of the marriage, but makes no provision for their education or maintenance, the court has no power to subsequently amend such decree by incorporating therein a provision for the support and maintenance of the children. t •
    
    Section 1771 of the Code of Civil Procedure, authorizing the court, upon the application of either party upon due notice to the other party, to annul, vai;y or modify a direction contained in a final decree of divorce respecting' the support and maintenance of the children of the marriage and for the support of the wife, only applies where the final decree contained such a provision. '
    The Legislature, by changing the word “may” to “must,” when .re-enacting section 59 of title 1 of chapter 8 of part 2 .of the Revised Statutes in section 1771 of the Code of Civil Procedure, did not intend to make it mandatory upon the court to make provision- for the children before, or in every final decree of divorce, but rather to render the action of the court in making or refusing to make such a provision reviewable on appeal.
    In every final decree of divorce or separation not making provision for the maintenance and education of minor children, issue of the marriage, a suitable provision should be incorporated reserving to the court the authority to require suitable provision therefor at any time in the future.
    Yan Brunt, P. J , dissented.
    • Appeal by the plaintiff, Estelle L. Salomon, from an order of the Supreme Court, made at the New York Special Term and entered in the office of th§ clerk of the county of New York on-the 9th day of January, 1905, denying the plaintiff’s motion to amend a final decree of absolute divorce by incorporating therein a provision for the support, maintenance and education of the two children, the custody of whom was awarded to plaintiff by said decree.
    
      A. li. Kafferiburgh, for the appellant.
    
      Eugene Van Sehaio/c, for the respondent..
   Laughi/ig, J.:

The interlocutory decree was made final on the 16th day of April, 1903. The final decree, following the interlocutory decree, awarded the custody of the two children, aged five and six years respectively, to the plaintiff but contains no provision for their education or maintenance. At the time of the making of the decree the defendant was contributing to the plaintiff the sum of $150 per month for the support, education and maintenance of the children pursuant to a separation agreement made between the parties on the 1th day of November, 1902, which contemplated the payment of that amount until the children should attain their majority with a modified provision in the event of the death of either or the marriage of the daughter. An action is now pending between the plaintiff and the defendant for the enforcement of the agreement for the benefit of the children.

The respondent stands on the literal reading of section 1111 of the Code of Civil Procedure and contends that since no provision for the support, maintenance or education of the children was contained in the final decree the court is without authority to regulate the matter by amending or supplementing the decree. Even though the contention of the respondent be untenable there would be difficulty with this motion. The application is not in form to have the court make a suitable provision for the children but to have incorporated in the final judgment the provision of the agreement between the parties for the payment of $150 -per mouth for that purpose and the plaintiff fails to present any facts tending to show that justice between the parties requires such a provision or any provision. It does not appear but that the plaintiff has ample means for the support and education of her children. The agreement between the parties recites that she has means of her own ” and it appears that the defendant within eight months prior to the 11th day of June, 1903, paid her more than $11,000, the major part of which was for the purpose as shown by the agreement, of placing “ her property in better paying shape so as to increase the earnings from her property.” The denial of the motion, however, upon this ground would likely only result in its renewal, and since we are of opinion that there is no authority to change the decree, our views may as well be expressed. While the court has inherent authority over the custody and control of children, its authority to grant divorces and bills'of separation and to provide by orders or'decrees in such actions for the support, maintenance and education of the children is entirely statutory. It is, of course, the duty of a father to properly provide for the support and education of his children, and remedies, .though inappropriate and at times inadequate, exist for the enforcement of that duty. The court, however, is powerless to enforce any duty in this regard by an order or decree- in an action for separation or divorce except .to the extent that it is expressly authorized by statute. Prior to the enactment of the Code .of Civil Procedure special provision was made in sectión 45 of title 1 of Chapter 8 of part 2 of the Revised Statutes authorizing the court, in granting a decree of absolute divorce, to make provision for. the maintenance of the issue of the marriage and for the support of the wife; and, in granting a bill of separation, like authority was. granted by section 54 of said title. Section 59 of said title contained a further-provision applicable to actions brought by the wife either for a ■divorce or- for a separation authorizing the court “during the pendency.of the cause, or at its final hearing, or afterwards, as occasion may require,” to 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 to “ at any time thereafter, annul, vary or modify such order.” It was the settled law -under the provisions of the Revised Statutes .that alimony could not be ■awarded after-the final decree in an action either for divorce or for a separation,'and that a provision in the final decree awarding alimony could not be thereafter changed. It will be observed, however, that the statute expressly provided otherwise with reference to the maintenance of the children and provision therefor could be made during the pendency of the action before final judgment, in the final decree or afterwards ; and it might thereafter be annulled; varied or-modified. When the revisers came to incorporate.these •provision's into the Code of Civil Procedure they provided in subdivision 2 of section 1759, contained in the article relating to divorces, substantially and so far as the' question now presented is concerned, the same as had been provided previously in said section 45 of the Revised Statutes-; and in section 1766, in the article relating to actions for separation,. substantially as had been provided in said section 54 of the Revised Statutes; but in re-enacting said section 59 of-.the Revised Statutes in section 1771 of the Code of Civil Procedure, relating to both actions for a divorce and .for a separation, they provided that 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,” and, further, that in actions for a separation, the court may, by order, at any time after final judgment, annul, vary or modify such a direction.” (See Laws-of 1880, chap. 178.) It will thus be observed that-'the express authority to make provision for the support and education of the children after final judgment which. was contained in said section 59 of the Revised Statutes was omitted and the section was repealed. (Laws of 1880, chap. 245, § 1, subd. 2, Tf 4.) The revisers’ note to section 1771 of the Code of Civil Procedure shows that it was intended to confine the authority of the court to make a provision for the support and education of the children to a provision made at or before the making of the final decree in accordance with the decision of the Court of Appeals in Kamp v, Kamp (59 N. Y. 212). (See Thróop’s Code Civ. Proc. [1880 ed.] § 1771.) It thus appears that until the subsequent amendments to the Code of Civil Procedure there was no jurisdiction in the court to make any provision for the support or education of the issue of the marriage unless made in the final decree or by an order before. The subsequent amendments of these sections have not restored the statutory authority for making a provision on this subject after the final decree where no provision was made bathe final decree. • They have merely authorized the court upon the application of either party, upon due notice to the other, to be given in such manner as the court shall prescribe,- to annul, vary or modify a direction in this respect contained in the final decree. (Code Civ. Proc. §' 1771, as amd. by Laws of 1895, chap.- 891 and Laws of 1904, chap. 339.) It was held in the Ka/mp Oase {supra) that where no provision for the support of the wife or children was contained in the final judgment, since that question could have been litigated,.it was conclusively presumed to have been decided that no necessity existed for making such provision,. and subsequent events could not justify a modification. That, decision,, applies to this decree, and since the only statutory authority is to annul, vary or modify a provision made in the final decree the ¡court is without power to incorporate a provision in a decree which contains no provision on the subject. If the court, had in the final decree required the father to contribute any s.um, no matter how small, for the support of his children, the court would be authorized, under the provisions of-the Code of Civil Procedure • as they existed at the time and still remain, to require him to contribute such further amount as the changed conditions ■ or circumstances require, but no provision having been made, and the question not having been reserved for future consideration, the decision must be deemed an authoritative determination as betw.een the parties, of • course not binding on. the children* that there was and could-be no necessity for a‘provision on the-subject. The purpose of the Legist 1 ature in changing the phraseology of the provision of said section 59 of the Bevised Statutes from “may” to must” in re-enacting . the same in section 1771 of the Code of Civil Procedure was not, as might on first reading appear, to make it the mandatory duty of the court to make provision for the, issue of the marriage before ór in the final judgment in all eases, but rather to render the action of the court in making or refusing to make such .provision re viewable on appeal. (See Bevisers’ Note, Tliroop’s .Code Civ. Proc. [1880 ed.] § 1771.) As section 1771 of the Code of Civil Procedure now stands, if the decree herein can be opened as to the children, it can also be opened as to alimony for the wife, for both depend .on the same clause. This manifestly could not be done. -'

We are of opinion that in 'every final decree .of divorce or separation, not making provision for the maintenance and education of minor children, issue of the marriage, a suitable provision should befihborporated reserving to the court the authority ,to require suitable'pro^ vision therefor at anytime in the- future and we recommend the. universal adoption of this practice.

■ It follows, therefore, that the. order should be affirmed.

O’Brien, Ingraham and Hatch, JJ., concurred; Van Brunt,

P. J., dissented.

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Van Brunt, P. J.

(dissenting):

I dissent. If the court has neglected to do- what it is expressly directed to do, I suppose in the interest of the party wronged by the court, who had no opportunity to insist upon his- rights, at the time of the making of the decree, the omission may be supplied in furtherance of justice.

Order affirmed, without costs. - 
      
       Relating to actions for divorce and for separation.— [Rep.
     