On May 24, 1928, the appellant was awarded a decree of absolute divorce from defendant by the Supreme Court of Kings County and provision was therein made for alimony of $35 per week up to and including February 21, 1929, and $25 per week thereafter.
By chapter 161 of the Laws of 1938, effective March 26, 1938, the Legislature amended section 1159 of the Civil Practice Act (now numbered 1172-c), which related to "Modification of judgment or order in action for divorce brought by wife," by adding the following provision: "The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife."
On April 14, 1938, respondent applied to the court to have the alimony provisions in the decree annulled. Appellant contended at that time, as now, that the statute was unconstitutional as interfering with her vested rights and could not be given a retroactive effect. Justice RIEGELMANN, at Special Term, overruled that contention and referred the matter to an official referee to take proof and report "whether the plaintiff was, on March 26th, 1938, and since that time, has been habitually living with a man known as Augustus S. Kibbe, holding herself out to be his wife, although not married to him." The referee reported in the affirmative. Special Term thereupon adopted the report of the referee and made an order annulling the alimony provisions of the decree and that order has been affirmed by the Appellate Division.
Courts have jurisdiction over the marriage relation, its incidents and its ultimate consequences only as such jurisdiction is conferred by statute (Erkenbrach v. Erkenbrach, 96 N.Y. 456,463; Wilson v. Hinman, 182 N.Y. 408, 410). The power of the Legislature to enact the statute under consideration (L. 1938, ch. 161) cannot be doubted (Cf. Fearon v. Treanor,272 N.Y. 268). The decisive question here is whether the effect given to the statute by the courts below deprives the appellant of some substantial vested right. If the order from *Page 254 which the appeal is taken so operates, it is not the result of due process and the statute so applied would violate both the State and Federal Constitutions. In determining the constitutional question, "the courts must give consideration to the proper construction and effect of the statute" (Valz v.Sheepshead Bay Bungalow Corp., 249 N.Y. 122, 132).
It is a settled rule of statutory construction that the provisions of a statute will not be applied retrospectively where they are capable of any other construction unless the intent of the Legislature to the contrary clearly appears (New York Oswego Midland R.R. Co. v. Van Horn, 57 N.Y. 473, 477;Walker v. Walker, 155 N.Y. 77, 81). There is nothing in the statutory provision that exhibits any intent other than that it should apply prospectively only. We cannot read into it something that is not there. Nor can we read into the act of 1938 any legislative intent to make it applicable to decrees entered prior to March 26, 1938, by construing it with section 1170 of the Civil Practice Act. The statutes were not enacted at the same time. The amendment to section 1159 was not an amendment to nor any part of section 1170. The Legislature, by its form as well as by the fact that it was, by its terms, an amendment to section 1159, indicated that its purpose was to deal with a situation not deemed to be covered by the provisions of section 1170. Even though the Legislature had indicated by express declaration its intent that the act should have retrospective application, it would not be effective as to decrees entered prior to the date it went into effect since the right of appellant to alimony became a vested property right upon the entry of the judgment and could not be affected by subsequent legislation (Livingston v.Livingston, 173 N.Y. 377).
Furthermore, the question of whether legislation with respect to varying, modifying or annulling provisions for alimony in final decrees of divorce may be applied retrospectively is not an open one in this court. The provisions contained in section 1170 of the Civil Practice Act to the effect that the court may, upon the application of either party to the action, at any time after final judgment and upon due notice to the other party, vary, modify or annul directions contained therein for the support of the wife have been in effect under one or another Code of Civil Procedure or Civil Practice Act reference since 1895 *Page 255 (L. 1895, ch. 891). Where claims were made that that statutory provision was retroactive in effect, this court held that it conferred no authority upon the court to vary, modify or annul provisions for alimony contained in any final decree entered prior to its effective date, although, by its express terms, it provided that it should apply to such decrees (Livingston v.Livingston, supra; Lake v. Lake, 194 N.Y. 179). By true analogy, the same rule must be applied to the amendment to section 1159 (now 1172-c) of the Civil Practice Act.
Nor can this court sustain the contention of respondent that without the 1938 amendment to section 1159 he is entitled, in the sound discretion of the court, to the relief which he seeks under the provisions of section 1170 of the Civil Practice Act because the effective date of the applicable provisions in that section was prior to the date of the entry of the final decree of divorce. It is true, of course, that the final decree in the instant case was entered subsequent to the enactment of the provisions of section 1170 and while it was in effect. The effect of that section was to write into every final judgment of divorce, entered after its enactment, a reservation, although none such was contained in the decree itself, of jurisdiction in the court to vary, modify or annul any provisions contained therein for alimony or to insert such provisions in the decree by amendment if previously it had contained no such award (Fox v.Fox, 263 N.Y. 68, 70; Karlin v. Karlin, 280 N.Y. 32). Nevertheless, that statutory provision did not authorize the court to annul for her misconduct by fornication, or immoral course of living, subsequent to the final decree, a provision for alimony contained in a final decree of divorce entered after its effective date in favor of the wife (Hayes v. Hayes, 220 N.Y. 596). Thus, the question of whether, under the provisions of section 1170 of the Civil Practice Act, a provision in the final decree for alimony awarded to the plaintiff in this case could be annulled because she has been habitually living with a man although not married to him, and yet holding herself out to be his wife, has been set at rest in her favor in this court.
In 1904 (L. 1904, ch. 339) the Legislature determined that public policy dictated that a woman who had received a final decree of divorce in her favor from her husband should no longer be permitted to hold her husband liable for alimony after *Page 256 she had again married. However, not until 1938 (L. 1938, ch. 161) did the Legislature determine that public policy required a ban on further alimony payments provided in a final decree of divorce granted to the wife for the wife's failure otherwise to live, subsequent to the divorce, in her character of former wife. It is asserted here without contradiction that counsel for the defendant was instrumental in causing the introduction in and passage by the Legislature of the 1938 amendment, since previous efforts of the defendant in the courts to procure an annulment of the alimony provisions of his former wife's final decree of divorce under other provisions of the Civil Practice Act then in effect had been unsuccessful. No indication has been furnished to us that any public emergency then arose requiring that legislation and no circumstances are presented to indicate that the Legislature by the mere determination then made indicated that it intended that the cause specified, if found to exist, should be available to annul provisions in a final decree entered before it made its determination. The public policy of the State of New York as determined and recorded by the Legislature may not be changed and rewritten by a court to satisfy its own private notion of what the public policy of the State ought to be.
The orders appealed from should be reversed, and the motion denied with costs in all courts.