Beeler v. Beeler

• Decision Date: 15 January 1898
• Parties: BEELER v. BEELER (two cases).
• Court: Kentucky Court of Appeals

44 S.W. 136

BEELER v. BEELER (two cases).

Court of Appeals of Kentucky.

January 15, 1898

Appeal from circuit court, Bullitt county.

"Not to be officially reported."

Action by T. M. Beeler against Laura M. Beeler for divorce. Judgment for defendant, and plaintiff appeals. Reversed.

Fairleigh & Straus and William Marble, for appellant.

Charles Carroll, for appellee.

BURNAM J.

Appellant instituted this action against appellee, setting up as grounds for divorce, in the first paragraph, adultery, and in the second, "such lewd and lascivious conduct as proved defendant to be unchaste." Appellee denies both grounds of divorce, and pleads condonation, alleging that after plaintiff had knowledge of the alleged facts on which the charges of adultery and lascivious conduct are based they cohabited as man and wife; and further, by way of cross petition, seeks divorce and alimony, on the ground that appellant had habitually behaved towards her in such a cruel and inhuman manner as to indicate a settled aversion to her, and to destroy permanently her peace and happiness. The chancellor refused any relief to appellant, and granted appellee a divorce, and adjudged her $25 per month alimony, and also attorney's fee. Appellant appealed.

This court has no power over the judgment of divorce, but it has the power to determine whether alimony has been properly allowed, and, in doing so, has the right to consider the entire case, and determine whether the law and facts justified the judgment on the question of alimony. See Lee v. Lee, 1 Duv. 197; Beall v. Beall, 80 Ky. 675; and Evans v. Evans, 93 Ky. 510, 20 S.W. 605. These parties were married in December, 1892, in Bullitt county, and immediately thereafter took up their residence in Princeton, appellant's home, and lived together until about the 1st of January, 1895, boarding at an hotel in that town. The business of the husband as a drummer kept him almost constantly away from home, and the testimony shows that he could be with his wife but a few days in each month, and that during the periods of his absence she became acquainted and extremely intimate with one Pepper. They were frequently seen together, in his store (which was in the hotel building), on the streets, in the hotel, and in sleighs and buggies driving together; and this intimacy finally culminated in the facts detailed by the witnesses Edwards, Fralick, Beck, Hipple, and Pepper. It is an uncalled for and unnecessary task on our part to review this testimony in detail. It is sufficient to say that, in our judgment, if credible, it conclusively establishes the grounds of divorce relied upon by appellant. These witnesses have not been impeached in any way. The certificate of the examiner shows that at least three of them are credible, and it cannot be presumed that all of these parties, without apparent motive, would have engaged in a deliberate conspiracy to blacken the character of a good woman by willful perjury.

But little credit should ordinarily be given to the testimony of a co-respondent who voluntarily...