FORM No. 1920. Execution. That the plaintiff may, from time to time, have execution for the collection of said costs, and the moneys ordered to be paid for support and maintenance [and education] as aforesaid.76 FORM No. 1921. Another method. That from time to time, as any sum or sums of money shall become payable by the terms of this order and judgment, the said plaintiff, upon the allowance of any justice of this court, to be made on presenting and filing an affidavit that such sum or sums have not been paid, after days may have an order entered as of course on the foot of this order and judgment, that an execution issue, in such form as said justice may direct, against the defendant, Z. B., for the sum or sums so unpaid, with interest thereon, from the time the same became payable. FORM No. 1922. Security for alimony,77 etc. That the said defendant give security to the clerk of this court [or, of the county of ], to be approved by one of the justices of this court, for the payment of the allowance for support and maintenance [and education] hereinbefore awarded. FORM No. 1923. Leave to apply for further directions.78 That in case any event shall occur, materially changing the circumstances or conditions of the said parties, or either of them, an application may be made on the foot of this judgment, by any party in interest, for such modification or annulment of the provisions of this judgment, touching the said allowance for support, and the custody and support of the children, as may be just. 76 It is extremely doubtful if such a provision is proper. Execution cannot issue to collect alimony pendente lite. Weber v. Weber, 93 App. Div. 149, 87 N. Y. Supp. 519. 77 See N. Y. Code Civ. Pro., § 1772. As to enforcing payment by proceedings for contempt, see notes to Forms 950, 951, and CONTEMPT, pp. 583 et seq. As to charging on specific property, see Holmes v. Holmes, 29 N. J. Eq 9: Carpenter v. Osborne, 102 N. Y. 552, 7 N. E. Rep. 823. Whether security is discharged by death, compare Miller v. Miller, 64 Me. 484, and note, and Wilson r. Hinman, 182 N. Y. 408. 78 This power of modification is specifically given by Code Civ. Pro.. $$ 1759, 1771, and need not now be inserted. FORM No. 1924. Reserving authority.79 And the court hereby reserves authority upon proper application made at the foot hereof, to modify this judgment by inserting therein a provision requiring the defendant to make suitable payments for the support of the plaintiff, and the support and education of the said children [and fixing their custody]. FORM No. 1925. That the plaintiff recover of the defendant the sum of dollars, costs as taxed. FORM No. 1926. Order granting leave to a defendant to make application for a modification of final judgment.81 [After proper recitals:82] ORDERED, that the defendant have leave to move to modify the directions in the final judgment of divorce entered herein on the day of 19 providing for the care, custody, education and maintenance of C. B., the child of the parties hereto, by providing [here state specifically the nature of modification to be sought, as:] for her residence or custody within the jurisdiction of this court, or at such other 79 Necessarily inserted when the original judgment omits any provisions as to alimony or for support of children; or the court is without power. See Salomon v. Salomon, 101 App. Div. 588, 92 N. Y. Supp. 184, 34 Civ. Pro. Rep. 113. 80 Since costs are discretionary, they must be awarded by the referee, upon a reference to hear and determine; the Special Term has no power to award costs in such case, if the referee has omitted to pass upon the question. Sabater v. Sabater, 7 App. Div. 70, 39 N. Y. Supp. 958. After trial at Special Term, the decision should determine whether costs are to be awarded. The court has no power to award a counsel fee, or an extra allowance, in the final judgment. Atherton v. Atherton, 82 Hun, 179, 31 N. Y. Supp. 977; aff'd, 155 N. Y. 129; Lonsdale v. Lonsdale, 41 App. Div. 224, 58 N. Y. Supp. 532. 81 Required under N. Y. Code Civ. Pro., § 1759, 1771, as amended in 1895. Mersereau v. Mersereau, 51 App. Div. 461, 64 N. Y. Supp. 635. Leave to move may be denied if the undisputed facts show that a modification is sought to which the moving party is not entitled. Newman v. Newman, 105 App. Div. 63, 93 N. Y. Supp. 847. A defendant in contempt for failure to pay the past due alimony, and who keeps without the jurisdiction, will not be heard upon an application to modify. See Wetmore . Wetmore, 34 Misc. 640, 70 N. Y. Supp. 604. It is doubtful whether this application for leave could be united with the motion itself (as is sometimes done in applications for leave to renew), for to permit it to be done would defeat the plain object of the statute to require the granting of this order as a preliminary to the right to make the motion. 82 Must be a court order, though it may be granted without notice. N. Y. Code Civ. Pro., § 1771. place beyond its jurisdiction as will enable the defendant to visit and care for her, or for such other or further relief relating thereto as to the court upon the application may seem just and proper. Enter: FORM No. 1927. Notice of motion to annul or modify a direction in final judgment for support of wife or children.83 [Title of court and cause.] [As in Form 820, p. 1174 of this volume, stating as relief sought:] For an order annulling [or, modifying] the provision in the final judgment of divorce entered herein on the day of 19 directing [state what, and if modification be sought, state to what extent], and for such other and further relief as may be just. FORM No. 1928. Petition to modify divorce judgment, by giving leave to marry again.84 [Name of] Court. The petition of Z. B. respectfully shows: I. That on the the said plaintiff A. B. day of 83 Under N. Y. Code Civ. Pro., §§ 1759, 1771, the court may upon either party's application (the defendant first having to obtain leave, as in preceding Form), annul, vary or modify any directions contained in the final judgment of divorce or separation, respecting the support of the wife or maintenance or custody of the children. These sections do not, however, permit a provision to be inserted by order when the final judgment contained no provisions whatever on the subject. Salomon v. Salomon, 101 App. Div. 588, 92 N. Y. Supp. 184, 34 Civ. Pro. Rep. 113. And so far as section 1759 purports to give the court power to annul or modify a pro 19 he was married to vision in a judgment rendered before the amendment took effect, it is unconstitutional. Livingston v. Livingston, 173 N. Y. 377. Allegations as to defendant's changed circumstances held insufficient to warrant a reduction of the alimony. Goodsell v. Goodsell, 95 N. Y. Supp. 242. See, also, a previous decision in 82 App. Div. 65, 81, N. Y. Supp. 806. Where the wife has remarried, the direction for her support must be annulled upon the defendant's application. Code Civ. Pro., § 1771, as amended 1904. 84 This and the following Form are from Greene's Case, 8 Abb. N. C. 450. day of 19 said plain II. That on or about the tiff commenced an action in this court for an absolute divorce against your petitioner, and on the day of 19 a judgment of divorce was duly rendered therein by this court against your petitioner, and in favor of the plaintiff A. B., dissolving the said marriage between them, and it was further adjudged, that it should be lawful for the said plaintiff A. B. to marry again, as though your petitioner were actually dead, but it should not be lawful for your petitioner to marry again until the said plaintiff should be actually dead; as appears by the certified copy of the said judgment hereto annexed. III. That [the said plaintiff A. B. has married again, as appears by the affidavits hereto annexed; and that] five years have elapsed since the decree of divorce was granted. IV. That since the dissolution of the said marriage your petitioner has resided at and his conduct has been uni formly good [annex affidavits of witnesses]. V. That no previous application for an order such as is asked below has been made. 19 WHEREFORE, your petitioner prays that the judgment of divorce rendered by this court on the day of dissolving the marriage between the said plaintiff A. B. and your petitioner, be modified so that it shall be lawful for your petitioner to marry again as though the said A. B. were dead. [Date.] [Signature of], Petitioner. [Verification as in Form 821, p. 1175.] FORM No. 1929. Order allowing defendant in divorce leave to marry again. [Title of action.] As a Special Term [etc.; see In the Matter of [etc., as in last Form]. On reading [and if not already filed, add: and filing] the petition of the above-named Z. B., verified the 19, filed the day of affidavits of M. N. [etc.] verified the See, also, Matter of Salmon, 34 Misc. 251, 69 N. Y. Supp. 215. Affidavits of witnesses to the applicant's good conduct should be annexed. Waas v. Waas, 5 Monthly L. Bul. 59. 19 day of and the day of For the New York statute, see L. 1897, chap. 452 (1 Birdseye's Rev. Stat. [3d ed.], 998). The application may be made ex parte. Matter of Salmon, supra. 19 day of , [and if reference has been had, add: and the report of R. F., the referee to whom said petition was referred, and which was filed herein the 19 and if excep tions were filed: and the exceptions thereto filed on behalf of A. B. the day of 19], and the court being satisfied thereby that [the said A. B., now A. M., has married again, and that] five years have elapsed since the judgment of divorce herein was granted, and that since the dissolution of the said marriage the conduct of the said petitioner has been uniformly good; and after hearing Z. T., of counsel for said petitioner, and A. T., of counsel for plaintiff in opposition, and due deliberation being had; Now, on motion of Z. T., attorney for said petitioner: It is ORDERED AND ADJUDGED [that said exceptions are overruled, and said report is hereby confirmed, and] that the judg ment of divorce entered herein on the day of 19 be and the same is hereby modified so that it shall be lawful for the said petitioner Z. B. to marry again in the same manner as though the said A. B., [now A. M.,] were actually dead. Enter: [signature of judge by initials of name and title.] FORM No. 1930. Petition to revoke final judgment of separation.85 [Title of court and action.] The joint petition of the above-named plaintiff and defendant respectfully shows: I. That final judgment for a limited divorce and separation between the petitioners was entered in this action on the day of 19, in the office of the clerk of the county of II. That your petitioners have since become reconciled to each other, and desire to end the separation and to resume their marital relations, and to have said judgment revoked [may state evidence, and grounds for any special directions desired]. WHEREFORE, your petitioners pray that, by an order of this court, the said judgment may be revoked, pursuant to the statute, and that it be cancelled and discharged of record. [Date.] [Signatures.] [Verification by both petitioners; see Form 821, p. 1175.] 85 A decree of separation is not revoked by a reconciliation of the parties; a formal order of revocation is essential. Hobby v. Hobby, 5 App. Div. 496, 39 N. Y. Supp. 36. |