Bruton v. Tearle

NOURSE, P. J.

This is a suit by Josephine Park Tearle for the sum of $9,932.50 admitted to be unpaid alimony awarded her under a decree of divorce in New York.

The cause was tried by the court sitting without a jury upon an agreed statement of facts. Judgment was ordered for the plaintiff and defendant appeals upon typewritten transcripts. Pending the appeal Mrs. Tearle died and her administrator has been duly substituted in her stead. We may continue to refer to her herein as the plaintiff in the action. Plaintiff obtained a decree of divorce from defendant in the state of New York on November 21, 1912, wherein plaintiff was awarded alimony in the sum of $25 each week thereafter; on May 9, 1921, plaintiff obtained a second judgment in the form of a modification of the decree wherein she was awarded $75 each week thereafter; on March 21, 1928, plaintiff obtained a third judgment in the same form in which she was awarded the sum of $100 each week thereafter. The record discloses no modification and no proceeding to modify any one of these judgments. The trial court found that “there is now accrued, due, owing and unpaid” under said judgments $9,932.50, and that under the laws of the state of New York such judgments were not subject to modification as to accrued and past due installments.

Defendant and appellant contends that the judgments are not final under the laws of New York as to accrued and unpaid payments thereunder because the court which rendered those judgments had the power to modify them at any time, and that only a final judgment is within the full faith and credit clause of the federal Constitution.

Upon the first point the New York law as interpreted by the courts of that state is not in accord with appellant’s contention. In

Krauss

v.

Krauss,

127 App. Div. 140 [111

[698]

N. Y. Supp. 788, 789], the appellate division held that the statutory power conferred upon the trial court to annul, vary or modify an order for the payment of alimony did not carry jurisdiction to deprive one of that portion of such an award which was due and payable but that, as to such portion, a vested right was created which might be enforced the same as any final judgment. This is the settled rule of the authorities of that court down to