Morris v. Birmingham

Lydon, J.

(dissenting). I dissent and vote to reverse and dismiss the complaint.

The matrimonial domicile was in New York and defendant still lives here. Plaintiff, desiring a divorce, went to Nevada and brought her action there. Defendant appeared, and the court, having complete jurisdiction of the parties and of the subject-matter, rendered its decree of divorce on October 14, 1930. That decree was as comprehensive as the jurisdiction was complete. It divorced the parties, provided for the custody of the children and awarded the wife an allowance for the support of herself and the children. The wife remarried within a week of the entry of the decree and resides with her present husband in the State of Connecticut. She now brings this action to recover the sum of $470.71 claimed to have been expended by her for the support of the children during the period from July 1, 1930, to April 25, 1931. This is a period of ten months. Under the terms of the decree she was awarded forty dollars per month for the support of herself and the children, beginning as of the 1st day of October, 1930, and to continue only so long as she should remain unmarried. Under the terms of the decree her allowance thus came to an end within a week after it had been granted. It seems to me that nothing *631further need be said to show that plaintiff has no cause of action as a matter of law. But it is easy to show that the result thus reached on purely legal grounds is also the natural and proper one from any point of view.

The decree dealt with the situation in which the parties then found themselves. The wife was divorced and free to remarry. There were two young children. Their custody was given to the wife and the court awarded a sum which is considered proper for their support and her own. But it also provided that the husband, who was to pay the alimony, should have the right to visit his children at week-ends and at all reasonable times and should further have the right to have the children with him at week-ends and during vacations. Thus a complete disposition of the case was made and the rights of the respective parties were fully determined in the situation which they then were. But the court could not foresee whether or not the wife would remarry or where she might choose to reside in the future, whether married or unmarried. Obviously, if she should remarry and take the children to a foreign country, a further consideration of the question of what allowance, if any, she should then have, would be necessary. And so the court did the only thing it could do to provide against possible changes in the status of the parties. It ordered that all the provisions of the decree with respect to alimony and custody of the children should be subject to the further order of the court. The wife has now remarried and removed to another jurisdiction, taking the children with her, and she brings this action in which she seeks the judgment of a court and jury on the question of what allowance she should have for expenditures for the support of her children. She would substitute the judgment of a common-law tribunal for that of the court of equity to which she voluntarily submitted the whole controversy between herself and her husband.

It is suggested that whatever we may think of the case, we are concluded by the authority of Laumeier v. Laumeier (237 N. Y. 357). I have examined the case cited and cannot subscribe to the contention that it supports the plaintiff’s claims, as in that case the court said: There was nothing whatever said in the decree regarding a child, for the simple reason that at the time there was no child in existence.”

The order should be reversed, with ten dollars costs, and the motion granted, with ten dollars costs.