Bailey v. Bailey

• Decision Date: 24 September 1971
• Citation: 474 S.W.2d 389
• Parties: Thelma Bernadine BAILEY, Appellant, v. Clarence BAILEY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 389

474 S.W.2d 389

Thelma Bernadine BAILEY, Appellant, v. Clarence BAILEY, Appellee.

Court of Appeals of Kentucky.

Sept. 24, 1971.

Rehearing Denied Jan. 21, 1972.

C. B. Creech, Stanley R. Hogg, Creech, Hogg & Johnson, Ashland, for appellant.

Charles M. Daniels, Frank K. Warnock, Greenup, for appellee.

STEINFELD, Judge.

Appellant, Thelma Bernadine Bailey, and Appellee, Clarence E. Bailey, were married on August 8, 1960. For clarity we will refer to the parties as Bernadine and Clarence. A son and two daughters were born of this marriage. Their ages when the suit was filed in June 1967 were Todd 5, Beth Ann 3 and Brenda Sue 1. Clarence is 58 and Bernadine is 38 years of age. Sometime prior to March 9, 1965 Bernadine sued for an absolute divorce in the Boyd Circuit Court, the county in which she was then residing. On that latter date the parties contracted regarding their rights to certain property and Bernadine returned to their home in Greenup County, where they resumed their marriage relationship. Before Clarence had carried out the contractual provisions or Bernadine had dismissed her action, Clarence sued in the Greenup Circuit Court for a divorce from bed and board, custody of the children and restoration of property. Bernadine counterclaimed for an absolute divorce, custody of and maintenance for the children, alimony and property.

Trial began on June 29, 1970 and continued for several days during which numerous witnesses testified for each of the parties. The court made findings of fact in which it stated that Clarence had proved his entitlement to a divorce from bed and board and to custody of the three children. It concluded that Bernadine was not entitled to a divorce but was to periodic alimony. Before judgment Bernadine moved the court to reconsider the findings and conclusions and that Honorable Oscar Sammons, Judge of the Greenup Circuit Court, vacate the bench. The motions were overruled and judgment was entered in accordance with the findings and conclusions. Bernadine appeals. We affirm.

to support the motion to vacate, she filed an affidavit, which reads in part as follows:

'It has come to the attention of the affiant in the last few days that the Hon. Oscar Sammons, Judge, Greenup Circuit Court, could not rule impartially in this case because of the conduct of the Plaintiff in this action. The Plaintiff, Clarence E. Bailey, has done, and has offered to do special favors for and has had social relationships with the presiding Judge, Hon. Oscar Sammons, towit: During the time this action has been pending Plaintiff had remodeled the Courthouse office or chambers now used and occupied by Judge Sammons; that the plaintiff has done considerable remodeling and decorative work on the Greenup Circuit Courtroom at a grossly inadequate figure; that the step-father of Judge Sammons' daughter-in-law was a witness for the Plaintiff; that the parties' child Beth Ann, only recently has informed affiant that she and her younger sister had been taken to the home of Judge Sammons by the Plaintiff after this case had been submitted for judgment; during the pendency of this action the plaintiff did work on the home of Judge Sammons, and Judge Sammons has stated that affiant's counsel was trying to confuse him.'

The appellee responds that the motion was fatally defective because it did not show when Bernadine learned of the acts of which she complains.

A motion to require a trial judge to vacate the bench must be made before the proceeds with the cause. Harrell v. City of Middlesboro, Ky., 287 S.W.2d 614 (1956). Also '* * * it must be made at once upon discovery of the facts upon which the disqualification rests; else it will be waived.' Noe v. Commonwealth, 267 Ky. 607, 103 S.W.2d 104 (1937). However, if the disqualifying information is later learned and the affidavit meets all other requirements and clearly shows that the movant acted expeditiously the judge must step aside. Conley v. Stivers, Ky., 445 S.W.2d 439 (1969); 48 C.J.S . Judges § 94c, 1086. Here Bernadine failed to show lack of knowledge of the information before the findings of fact and conclusions of law were entered or when she obtained it. She did not clearly demonstrate that she acted expeditiously. The motion was properly overruled. Cf. Jones v. Stivers, Ky., 447 S.W.2d 869 (1969).

Bernadine charges that the trial court erred in refusing to grant her an absolute divorce and in awarding Clarence a divorce from bed and board. Citing Dunning v. Dunning, Ky., 325 S.W.2d 315 (1959), she reminds us that we may set aside a divorce from bed and board and direct that an absolute divorce be granted. A review of the evidence discloses conflicts of gigantic proportions in the testimony presented by witnesses, some of whom were 'close' to Clarence and others to Bernadine. He was described by some as a hard working, devoted husband and father and by others as an ogre. She was pictured by witnesses as a considerate wife, a dutiful mother, and a perfect lady, but others depicted her as a cruel witch . Some told that the marital difficulties were solely the fault of the wife and others stated that she was blameless and the husband was the culprit. Seldom have we seen such divergence of opinions or observations.

The conflicting testimony impressed upon the chancellor the burden to ferret out the truth and make findings of fact. CR 52.01. These findings are of great importance to us. 7 Ky. Practices, Clay 101, Discussion 4. The trial judge personally confronted the witnesses and evaluated the evidence in a comprehensive analysis. It was apparent that several who testified were so related to the parties that their testimony was influenced by that relationship. He concluded that there were shortcomings as to both parties but that Clarence '* * * has overwhelmingly proven his case for divorce from bed and board.' We find this judgment to be amply supported by the proof, and not being clearly (if at all) erroneous, we cannot disturb it. CR 52.01, Spurlin v. Spurlin, Ky., 456 S.W.2d 683 (1970).

Clarence testified that at the time he sued for a limited divorce he really did not desire one, but instead wanted to hold his family together. Bernadine argues that this admission disqualified Clarence from obtaining a divorce and made it evident that he '* * * did not feel that his peace and happiness were being permanently destroyed by any cruel and inhuman behavior on the part of Bernadine .' He responds that up to the date of trial he continued to love his wife and wanted to preserve the family, that his suit was a protective measure since she had three times previously sued him for a divorce in a county that was not their residence. We find no disqualification, and ample evidence that Bernadine's acts were cruel and happiness-destroying within the meaning of our divorce laws.

And now the children; is their welfare better because they were placed in the custody of their father, rather than their mother? The Chancellor related with apparent disgust the antics of both parties, but concluded that the father, despite the handicap of the loss of both legs, should have their custody. He wrote:

'The evidence is very strong that Defendant habitually stayed in bed a large portion of the day; that the children got up early and were for the most part unattended for several hours each day; that when small, they went without having diapers changed at proper times, unless the Defendant (sic) came home from his work to care for them or hired someone else to do so. From almost babyhood, the children would have to find and prepare their own breakfast while their Mother slept, unless the Plaintiff came home from his work or unless he hired someone to prepare it for them. Often, the children, while mere babies, would get out on the streets while their Mother slept. She apparently cursed the children at any time she became aggravated with them. Her punishment of the children was spasmodic and sometimes rather severe.

'Both parties are members of the Christian Church and make a too apparent effort to prove to the Court that they are sincere. However, the Court notices that all this church going has come about since it was evident that the marriage would terminate in court action, and this Court believes that religion should extend beyond the portals of the church building, which does not seem to have occurred in this family.

'The Plaintiff has made a remarkable recovery from his accident to the extent that he walks well and performs most of the tasks required of him in his work as a building contractor. However, his work and perhaps his future earning power has been reduced to a considerable degree. He has had the children with him and has been responsible for their care during a portion of the recent separation, and there is no evidence to the effect that he has been unable to properly care for them because of his physical disability. Because of the Defendant's indolence in caring for the children, the Plaintiff has, during a good portion of the time, employed someone to assist in caring for them.

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