Beall v. Beall

• Decision Date: 03 February 1883
• Citation: 80 Ky. 675
• Parties: Beall v. Beall.
• Court: Kentucky Court of Appeals

80 Ky. 675

Beall v. Beall.

Court of Appeals of Kentucky.

February 3, 1883.

APPEAL FROM WARREN CIRCUIT COURT.

R. S. BEVIER, J. H. BOWDEN, AND WILBUR F. BROWDER FOR APPELLANT.

A. G. RHEA FOR APPELLEE.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

One of the grounds for a divorce on the part of the wife, when not in like fault, is "the habitual behavior towards her by the husband for not less than six months, in such cruel and inhuman manner as to indicate a settled aversion to her, or to destroy permanently her peace and happiness." (General Statutes, chapter 52, subsection 2 of article 3.)

In this case the appellee, Lucy Beall, filed her petition in the Logan circuit court against her husband, Geo. R. Beall for a divorce and alimony, and on the final hearing a judgment of divorce from the bond of matrimony was granted, and a further judgment, in the way of alimony, for $3,500.

The husband has appealed from the judgment as to the alimony, and insists that, upon the facts of the record, she was not entitled to a divorce, and therefore no allowance should have been made her for support and maintenance out of his estate; and further, that if an allowance was proper, the sum awarded is for a greater sum than she is entitled to, and should be reduced.

It is provided in section 6 of article 3, chapter 52, General Statutes, "if the wife have not sufficient estate of her own, she may, on a divorce obtained by her, have such an allowance out of that of her husband as shall be deemed equitable, and be restored to the name she bore before marriage, if she desire it."

It would seem to follow, that if the ground for a divorce had not been made out by the testimony, that no allowance for alimony should have been made; but the chancellor in this case has determined from the facts before him that the appellee was entitled to a divorce, and upon rendering the judgment in the exercise of the power given him by the statute, or that he could have exercised regardless of the statute, proceeded to make to the wife the allowance complained of.

This court has no revisory power over a judgment of divorce, but may determine whether the allowance made the wife by the chancellor was, under all the circumstances of the case, proper, and if excessive, considering the pecuniary condition of the husband, will reverse the judgment that the error may be corrected; nor are we prepared to say that this court would approve an allowance for even the smallest sum, when it clearly appeared from the record that the divorce was improperly granted. It should appear that the habitual behavior of the husband to the wife was such as showed a settled aversion to her. Hatred and bad treatment must be the rule of his conduct towards her, and his exhibition of affection for her the exception, in order to entitle the wife to relief upon that ground; but while the husband may now and then manifest such an affection for the wife as to negative the idea that he has lost all regard for her, still if his cruel and inhuman conduct towards her is such as to destroy permanently her peace and happiness, the wife is entitled to a divorce.

We are inclined to conclude, from a careful reading of the testimony, that the appellant loved his wife, and that his continued and persistent efforts to...