Opinion
October, 1896.
Isaac B. Barrett, for plaintiff.
Clute McCormic, for defendant.
The plaintiff moves to modify a judgment of absolute divorce obtained by her from the defendant in 1887 on the ground of adultery, by inserting a provision therein for her support and for the maintenance of an infant daughter of the plaintiff and defendant.
The relief asked for is sought to be justified by the amendment in 1895 to section 1771 of the Code of Civil Procedure. This amendment, however, only authorizes the court to annul, vary or modify a direction in a final judgment. The Code, as it existed at the time this judgment was granted, authorized, in section 1759, a provision requiring the defendant, where the action was brought by the wife to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff. But no such provision is contained in this judgment and, therefore, there is no direction in the judgment which can be annulled, varied or modified as provided by section 1771, as it now stands.
The case of Erkenbrach v. Erkenbrach, 96 N.Y. 456, is not an authority in favor of the plaintiff's contention, for the reason that that was decided under a provision in the Revised Statutes, since repealed, which authorized the court in a suit brought by a married woman for a divorce or a separation, after a final hearing, to make such order as between the parties for the custody, care and education of the children of the marriage as may seem necessary or proper. 2 R.S. 147, § 59.
Even though the court had the power, under the law, to grant the relief asked for it could not be granted because of the general release executed by the plaintiff to the defendant after the judgment in question was made, which the defendant has read on this motion. This, among other things, is a release on the part of the plaintiff of all claims for alimony and also for the support and maintenance of the child during the time she is under the care, custody and control of the plaintiff, such custody having been awarded to her in the judgment. The release is, therefore, broad enought to stand in the way not only of the provision for support now asked for by the plaintiff, but also to prevent the plaintiff from having the relief she seeks on behalf of the child.
The motion should, therefore, be denied.
Motion denied.