Asher v. Asher

• Decision Date: 16 May 1933
• Citation: 249 Ky. 215,60 S.W.2d 592
• Parties: ASHER v. ASHER.
• Court: Kentucky Court of Appeals

60 S.W.2d 592

249 Ky. 215

ASHER v. ASHER.

Court of Appeals of Kentucky

May 16, 1933

Appeal from Circuit Court, Leslie County.

Action by Rose Asher against J. H. Asher, who filed a counterclaim. From the judgment, defendant appeals, and plaintiff cross-appeals.

Judgment affirmed on appeal, and on cross-appeal judgment affirmed in part, and reversed in part with directions.

J. M Bicknell, of Hyden, and J. T. Bowling, of Hazard, for appellant.

S. M Ward and G. C. Wilson, both of Hazard, for appellee.

CREAL Commissioner.

At the March term of the Leslie circuit court, 1931, a judgment was entered in an action styled Rose Asher, plaintiff, against John Asher, defendant, granting to the former an absolute divorce and adjudging that defendant pay all costs of the action.

Thereafter this action in equity was instituted by Rose Asher against John Asher, and in her petition it is alleged that the action in which the judgment was rendered was fraudulently wrongfully, and without her knowledge and consent filed and prosecuted to judgment by the defendant in the name of plaintiff; that he caused the action to be submitted to the court upon evidence taken by him or by others at his solicitation, instance, and request, and she asked that the judgment be canceled, set aside, and held for naught.

In a second paragraph, she made all necessary allegations to entitle her to a divorce from defendant on the grounds of cruel and inhuman treatment and further alleged that during the twelve months next before the filing of her action, defendant had been living in adultery with another woman named in the petition. On these grounds she asked for absolute divorce, for the custody of the children born to her and defendant, and for $10,000 alimony and also for judgment for sums alleged to have been lent to defendant.

By answer and counterclaim, defendant denied the allegations of the petition and alleged that plaintiff owed him certain sums for which he prayed judgment, and in an amended answer and counterclaim alleged that in 1922, plaintiff committed adultery and was guilty of such lewd and lascivious conduct as proved her to be unchaste; that he never condoned her offense or cohabited with her after he acquired knowledge of her conduct; and he prayed in the event the former judgment was set aside that he be granted a divorce on the grounds alleged.

After the respective parties had taken proof covering nearly a thousand pages of transcript, the cause was submitted and it was adjudged that the judgment in the former action is and has at all times since its rendition been valid, and in full force and effect; that plaintiff's petition for divorce be dismissed, but that she recover of defendant $1,500 in alimony payable in three installments and that after payment of the last installment she be paid the sum of $30 per month until further orders of the court; that the defendant have the custody of the children; that plaintiff recover nothing on her demand for money alleged to have been lent defendant; and that defendant recover nothing on his claim for money alleged to have been advanced to plaintiff. It was further adjudged that defendant pay the costs of this action, but that plaintiff be allowed nothing to pay her attorneys for prosecuting same because a fee of $100 had been allowed for the attorney alleged to have represented her in the former action.

From so much of the judgment as awards plaintiff alimony, defendant is prosecuting an appeal, and from so much of the judgment as...