Barrett v. Barrett

• Decision Date: 13 June 1941
• Citation: Barrett v. Barrett, 287 Ky. 216, 152 S.W.2d 610 (Ky. Ct. App. 1941)
• Parties: BARRETT v. BARRETT.
• Court: Kentucky Court of Appeals

152 S.W.2d 610

287 Ky. 216

BARRETT v. BARRETT.

Court of Appeals of Kentucky

June 13, 1941

Appeal from Circuit Court, Pike County; Fred Howes, Special Judge.

Contempt proceeding by Martha Barrett against W. W. Barrett.From an adverse judgment, defendant appeals.

Affirmed.

A. F Childers, of Pikeville, for appellant.

F. M Burke, of Pikeville, for appellee.

FULTON Justice.

In the year 1932 a divorce was granted to appellee in an action filed against her by appellant.A settlement of property rights was made and entered as a part of the judgment.In addition to the settlement of other property rights, the agreed judgment contained this provision: "It is further ordered and adjudged by the court by consent of the parties hereto, that the defendant, Martha Barrett, recover of the plaintiff, W. W. Barrett, the sum of One Hundred ($100.00) Dollars per month alimony and maintenance for herself and infant children, during the time Martha Barrett remains unmarried, and in event Martha Barrett re-marries, then and in that event the said allowance is to be reduced to the sum of Fifty ($50.00) Dollars per month during infancy of said children, and to be paid for the support and maintenance of the infant children of plaintiff and defendant."

On May 10, 1940, on motion of appellee, a rule was issued against appellant to show cause why he should be punished for contempt on account of his failure to pay $50 per month to appellee since November 1, 1939, aggregating $286.85.

The regular judge vacated the bench and Hon. Fred Howes was designated special judge.Appellant filed a motion, supported by his affidavit, seeking to have Judge Howes vacate the bench, and this motion was overruled, Judge Howes thereafter proceeding with the trial of the motion.Appellant filed a response setting up numerous grounds and reasons why he had made no payments since November 1, 1939, and orders were entered directing the taking of proof by depositions and fixing the time therefor.

Later the facts were stipulated as follows: "It is stipulated that the plaintiff, W. W. Barrett, had complied with the agreed judgment by paying to the defendant, Martha Barrett as provided in said judgment, the sum of $100.00 per month up to May 1, 1936; that upon said date, their youngest son, Paul Judson Barrett, who was then about fourteen years of age, left the care and custody of the defendant and came to the plaintiff, and has, since that time, resided with him or with plaintiff's sister, Mrs. Nora E. Dotson, and that the plaintiff has provided for the said Paul Judson Barrett since that time; that upon that date (May 1, 1936)the plaintiff ceased to pay the defendant the sum of $100.00 per month, but did pay, beginning with that date, the sum of $75.00 per month up until September 1, 1938, when it was that the oldest son, William Prentiss Barrett, entered the University of the South at Swanee, Tennessee that on September 1st, 1938, the plaintiff ceased to pay the defendant $75.00 per month, but did pay, beginning on that date the sum of $50.00 per month, and continued to pay the defendant $50.00 per month until November 1st, 1939, at which time he ceased such payments and since said date has not paid the defendant any sum or amount under said agreed judgment, or otherwise; that beginning September 1st, 1938the plaintiff paid all expenses of the said William Prentiss Barrett, in the said University of the South, and for the school year 1938-39 plaintiff paid approximately the sum of $1,250.00 for him; that for the school year 1939-40 the plaintiff paid all expenses of the said William Prentiss Barrett in said University amounting to approximately $1000.00; that the said William Prentiss Barrett graduated from said University in June, 1940 and is now temporarily in charge of two churches in the state of Florida."The cause was submitted on this stipulation of facts and the rule was made absolute.Appellant was adjudged to be in contempt of court but was permitted to purge himself of the contempt by paying the past due installments as indicated in the motion and affidavit, failing in which he was ordered committed to jail until he had complied with the court's order.This appeal follows.

Since the facts were stipulated and since we would be called on in any event to direct the correct judgment to be entered on the stipulated facts, we have decided not to consider the question whether Judge Howes should have vacated the bench.A reversal of the judgment because of his failure to vacate would, in the...