Opinion
June 28, 1943.
Plaintiff appeals from an order, made on her motion to direct the defendant to pay to her the sum of $583.33 a month as alimony, which provides for payment by defendant of the sum of $450 a month commencing February 1, 1943, the additional payment of a maximum of $500 a year to reimburse plaintiff for income tax payments, a modification of the final judgment of divorce in accordance therewith, and the vacatur of certain paragraphs of a prior order. Order, insofar as appealed from, reversed on the law and the facts, without costs, and the motion denied, without costs. The order of October 28, 1942, is a nullity. It purports to delegate the statutory power of the court to modify a final judgment of divorce as justice requires to a designated individual, described as a "Justice of this Court," and to vest in him the power to fix alimony in accordance with the fluctuating income of the defendant and pursuant to a restricted formula set up in accordance with the intention of the parties. The present motion of the plaintiff is without basis, in the light of the fact that the prior order is void and, in any event, seeks a direction which is already contained in the final judgment of divorce. The support provision of the final judgment remains operative unless and until a modification thereof is effected in accordance with the pending and undecided motion of the defendant. The provision in the order presently appealed from with respect to reimbursement by defendant of payment by plaintiff of income tax is inseparable from the preceding support provision and a part thereof. It is, therefore, within the scope of this appeal. Hagarty, Johnston, Adel and Lewis, JJ., concur; Carswell, J., concurs in the result.