In 1928 appellant obtained a divorce from respondent. The judgment provided for weekly alimony payments. In 1938 (L. 1938, ch. 161) the Legislature of this State enacted a statute (now Civ. Prac. Act, § 1172-c, second sentence) which empowered the court in its discretion to modify a judgment of divorce by striking out its alimony provisions "upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man." The courts below, on sufficient proof have found that appellant was, on March 26, 1938 (the effective date of the statute hereinabove described) and thereafter, "habitually living with a man not her husband and holding herself out to be his wife." Acting within the terms of section 1172-c of the Civil Practice Act, those courts have modified the 1928 divorce judgment by striking therefrom the award of alimony. Now we are told that such an excision is beyond the *Page 257 power of the courts, since, it is said, the statute, to save its constitutionality, must be read to permit such an operation only on judgments entered after the effective date of the statute, and not to judgments, like the one here involved, which were entered before the statute went upon the books. The rule of law cited as impelling us to that result is that which accords to certain judgments a finality beyond the reach of the Legislature, or the courts, so that the benefits decreed to a successful party by such a judgment become vested in that party, forever.
If all this be binding law, strange results follow. A wife who filed her divorce judgment in April of 1938 would find herself deprived of support from her former spouse if he could prove her guilty of unlawful cohabitation, while her erring sister, whose decree had been handed down in February of that year, would be safely beyond the reach of the statute. Each of those women would have secured her divorce and grant of alimony, originally, on proof of her husband's guilt and, inferentially at least, of her own innocence. Neither woman could have had any divorce or alimony at all if the divorce proceedings involving her and her husband had been brought after the meretricious relationship with another man, here proven, had begun. A conclusion that the lawmakers intended to make of our divorce laws, expressive as they are of deep moral convictions, so asymmetrical a pattern, should be avoided, if avoidance is possible. "Whatever the legislative purpose may have been, it cannot have contemplated such an incongruous result." (Matter of Morse, 247 N.Y. 290,302.)
The jurisdiction of the courts in matters of divorce and alimony is derived exclusively from statute. (Erkenbrach v.Erkenbrach, 96 N.Y. 456.) A statutory grant of jurisdiction to grant divorce judgments including alimony awards, would not, without more, authorize the modification of such a judgment, previously entered, as to its alimony features, since the judgment would have become final and in that sense would have created vested rights in the successful wife. (Livingston v.Livingston, 173 N.Y. 377.) Where authority to modify as to alimony was not expressly reserved by a statute in force before entry of judgment, or was not reserved in the judgment itself at the time of its rendition, those "vested rights" were beyond attack from Legislature or court. So, when in 1900, the Legislature *Page 258 attempted to bestow upon the courts the power to annul or modify directions for alimony "at any time after final judgment, whether heretofore or hereafter rendered" the statute was, as to judgments entered before its passage, inoperative (Livingston v. Livingston, supra). But this careful protection of the finality of alimony judgments was not based on any theory that they were akin to judgments on contract debts. Alimony ("alimonia-sustenance") means the continued support of a wife by her divorced husband. "The divorce with its incidental allowance of alimony simply continues his duty beyond the decree and compels him to perform it, but does not change its nature" (Romaine v. Chauncey, 129 N.Y. 566, 570). Alimony is not a property settlement or a finally arrived at division between husband and wife of the former's income. It is a device for enforcing our public policy that an innocent wife's sustenance by her guilty husband should be continued after the divorce. But it would be a faulty public policy which would enforce the husband's public duty of support and not the correlated public duty of the wife. The Legislature, by the statute we are examining, has ordained that the wife's right to continued support from her husband after divorce, shall be forfeited by such misconduct as here appears. Concededly, the enactment of such a statute is within the Legislature's competence. It seems plain the Legislature could not reasonably have intended, in 1938, to authorize such a forfeiture only as to wives divorced before that date. We concede that a statute might be considered unreasonable or invalid which contemplated such a forfeiture for immoral acts done before the statute's enactment. No such question is here. We are investigating only the validity of a forfeiture of alimony for wrong conduct after the statute's passing. We find no unconstitutionality in such a law.
We have seen that alimony provisions are Immune from modification if the judgments of which they are a part contain no reservation of power to modify, and if they are entered at a time when no statute exists making such judgments subject to modification. But when the judgment in the present case was handed down in 1928, there was already on the books a statute (Civ. Prac. Act, § 1170) which in sweeping terms said that the court was authorized, at any time after a final judgment for *Page 259 divorce, to annul, vary or modify an award of alimony contained therein. "The effect of the statute is to write a reservation into every final judgment of divorce. The jurisdiction of the court over the parties and over the incidental subject-matter is prolonged; and to that extent the action may be said to be pending within the meaning and intent of section 1169 of the Civil Practice Act" (Fox v. Fox, 263 N.Y. 68, 70). Jurisdiction of this judgment, therefore, remained in the court precisely as if the judgment itself had, as was formerly the practice, contained an express reservation of leave to apply at its foot for its modification (Fox v. Fox, supra). Thus when the divorce judgment with which we are here dealing was granted in 1928, it plainly was not final. It created no "vested rights" at all in appellant, since, by the statutory law then in force, it was expressly subject to future modification in the court's discretion. The rule of Livingston v. Livingston, supra, had no application to that judgment.
Hayes v. Hayes (220 N.Y. 596), announces no different rule. At the time the Hayes judgment was entered there was no statute authorizing modification because of the wife's immoral behavior, so that in that case, while the judgment was non-final, while it created no vested alimony rights and was open to modification generally, yet there could be found no express statutory grant of authority to modify it for that particular reason. That deficiency in the statutes was supplied in 1938, by the enactment of the second sentence of section 1172-c. Thereafter alimony judgments, long since deprived of their erstwhile finality, were specifically made alterable for the particular reason here assigned.
In the time of Forrest v. Forrest (9 Abb. Pr. 289), there was a broad and fundamental reason why a wife's alimony judgment could not be modified because of her misbehavior, that reason being the absence of any statute at all on the subject of modification. At the time of Hayes v. Hayes, supra, there was a narrower reason, i.e., the absence of a definite legislative declaration that such misbehavior was one of the grounds on which could be exercised the general power to modify, which general power had been provided between the time of the Forrest case and the time of the Hayes case. Now the Legislature has made that express declaration and no reason at all remains why *Page 260 there may not be modification for the precise cause relied on here.
We need not be fearful that we are here doing violence to any settled rules against retroactive application of statutes. The courts may, and in the present case did, give full and immediate effect to section 1172-c, without taking a single backward look. The misconduct for which the forfeiture of alimony was here imposed was misconduct after the date of the statute, and the alimony payments forfeited were those which were to come due in the future. In no real sense can such a use of the statute be considered to be retrospective (see discussion in Sistare v.Sistare, 218 U.S. 1, 24 et seq.).
The order of the Appellate Division should be affirmed, with costs.
LOUGHRAN, LEWIS and CONWAY, JJ. concur with RIPPEY, J., DESMOND, J. dissents in opinion in which FINCH, J., concurs; LEHMAN, Ch. J., taking no part.
Orders reversed, etc.