Kamp v. Kamp

Monell, J.

The power of the court to award alimony, is not restricted to the times of granting the j udgment of divorce, but the allowance may be made afterwards by supplemental order or judgment; such I think is the construction to be put upon the words of the statute, that if a decree dissolving the marriage be pronounced, the court may make a further decree or order against the defendant to provide such suitable allowance to the complainant for her support as to the court may seem just. It is usual to make provision for alimony in the judgment oí divorce; but if circumstances exist at the time the judgment is pronounced, rendering it inexpedient to make the allowance at that time, and the situation of the parties afterwards are changed, it would be proper for the court to grant the appropriate relief by a supplemental decree.

It does not appear upon what ground the motion to open *509decree, so as to provide tor alimony made in December, 1854, was denied.

And unless the disposition of that motion is to be considered as res judicata it cannot embarrass this application. I cannot give to it the effect of res judicata. It may have been, and I have the right to presume that it was, decided upon facts before the court, which were deemed insufficient to allow of alimony being made at the time, and not for the want of power in the court to award it after judgment.

The principal objection to this application, however, arises upon the effect which is to be given to the receipt signed by the plaintiff on the day the judgment of divorce was entered, and which is as follows:

New York, August 3d, 1852.

Received from Henrich Kamp, the sum of three hundred dollars in full, for all my claims against him for alimony and costs of suit of divorce.

“ Ann Catharine Kamp.” [l. s.]

This receipt is held by' the referee to operate as a satisfaction of all alimony, and, therefore, as a bar to this motion.

I cannot give to it such effect.

The seal affixed to it is of no consequence, under- the statute (2 R. S., 406, § 77) it is open to let in all such proof as would be proper, if it was not sealed (Stearns agt. Tappin, 5 Duer, 294).

And if necessary, therefore, to resort to extrinsic evidence, the testimony taken by the referee, establishes, I think, that the sum paid was received by the plaintiff as payment of alimony to that time, and was not intended' to bar a future claim.

But even if it should have given to it, the effect of a release under seal, and- hence operate as a discharge of the claim for alimony, it cannot reach forward so as to defeat a future application when the changed circumstances and condition of the parties appeal to the court for relief.

*510After the payment and receipt of the three hundred dollars, it is probable that the plaintiff was debarred from demanding any other or further sum for previous alimony, and so far it was a release and discharge of the defendant.

But there is nothing in the receipt, which in terms or by necessary inference or implication, releases the defendant from future alimony, if the court, in the exercise of its powers, shall deem it proper to niake a further judgment or order for its payment.

If the receipt is to be interpreted in the light of the evidence it cannot have given to it any greater effect, than to discharge the claim for alimony down to the time of entering judgment.

Having determined that the court has power to make a supplemental order for the payment of alimony, and that neither the former decision nor the receipt should bar the application, the only remaining consideration is addressed to the discretion of the court.

About twenty years have passed since the marriage contract- of these parties was dissolved, during all which time-the plaintiff has maintained herself by her own efforts. For that long period of time the defendant has contributed nothing towards her support, so long as her health was sound, she seems to have been willing and has been able to sustain herself, .and has thus relieved the defendant of a burden, which the court might have made him bear during all the intervening time.

It appears that the plaintiff has now reached the age of upwards of sixty-three years, and is in feeble health, unable by reason of her advanced age and bodily infirmities, to labor for her own support.

These facts furnish a suEcient ground for granting her such an amount of alimony, as in view of the pecuniary ability of the defendant, shall be proper.

As the papers before me do not furnish the requisite proof *511and the referee not deeming it necessary to take any, it must be sent to a referee to take proof on this subject.

The plaintiff may have an order to that effect, containing the same provision for payment of fees, &c., by defendant, as was inserted in the previous order of reference.

Upon a reference to Hon. James 0. Sbencer, the sum of $1,000 was awarded to the plaintiff as a yearly allowance,

' commencing from the date of his report, which was after-wards confirmed by the court.