Beutel v. Beutel

• Decision Date: 28 October 1947
• Citation: 205 S.W.2d 489,305 Ky. 683
• Parties: BEUTEL v. BEUTEL.
• Court: Kentucky Court of Appeals

205 S.W.2d 489

305 Ky. 683

BEUTEL v. BEUTEL.

Court of Appeals of Kentucky

October 28, 1947

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division; Scott Miller, Judge.

Action for divorce by Cornelia F. Beutel against Clarence Beutel wherein divorce was granted and defendant filed petition to have the divorce judgment modified. From a judgment dismissing his petition, defendant appeals.

Reversed with directions.

Wilbur O. Fields and Louis H. Jull, both of Louisville, for appellant.

A. M Marret and Robert J. Hagan, both of Louisville, for appellee.

CAMMACK Justice.

In 1934, the appellee, Mrs. Cornlia F. Beutel, was granted a divorce from the appellant, Clarence Beutel. Mrs. Beutel was denied alimony because she had an estate of her own sufficient for her maintenance. She was awarded custody of their infant daughter, who was then some two and one-half years of age, and was allowed $50 a month for her daughter's maintenance. It was directed that Mr. Beutel be permitted to visit the child each Wednesday. Upon appeal to this Court the judgment was affirmed. Beutel v Beutel, 262 Ky. 805, 91 S.W.2d 528. In June, 1943, Mrs Beutel sought to have the allowance for the support of the child increased to $75 per month. In response Mr. Beutel asked that the allowance be reduced to $25. In March, 1944, Mr. Beutel moved that he be allowed to have possession of the child on each Saturday and Sunday during the months of June, July and August. The commissioner's report recommending that there be no change in the custody of the child nor the visitation period, and that the maintenance figure be fixed at $60 per month, was approved and judgment was entered accordingly October 17, 1944. On the last day of October Mr. Beutel moved that the judgment be set aside, alleging that Mrs. Beutel had changed her residence from Kentucky to Florida, thereby depriving him of his right to see the child. This motion was overruled.

Mr. Beutel appealed from the actions just mentioned, and in the case of Beutel v. Beutel, 300 Ky. 756, 189 S.W.2d 933, 934, we upheld the rulings of the chancellor. During the course of the opinion it was said:

'Although appellee's departure from Kentucky might be sufficient ground for modifying the decree in respect to reasonable visitations, it did not entitle appellant to have the decree set aside; especially in view of the fact that, although both he and his child have been living in Louisville since the divorce was decreed, he has made only two attempts to visit the child, and it does not appear that either of these were calls during the hours allocated to him by the Court. He admits that for the past several years he has neither communicated with the child nor made any endeavor to see her. Virtually all courts, in proper circumstances, will permit a child to be taken out of their jurisdiction; indeed, in the circumstances therein involved, such was permitted by this Court in Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22, 154 A.L.R. 549. The question is fully discussed in the annotation following the publication of that opinion, in 154 A.L.R., commencing at page 552 and ending at page 573. But since proper relief, based upon removal of the child from Kentucky, was not requested of the Chancellor, it is unnecessary for us to discuss the question further.'

In April, 1946, Mr. Beutel filed a petition to have modified the divorce judgment of 1934. After setting forth the proceedings heretofore mentioned, Mr. Beutel alleged:

'The defendant states that the said plaintiff removed said child from the State of Kentucky without the permission of this Court, and at a time when this Court had jurisdiction of the custody of this child.

'The defendant files herewith a postal card addressed by the plaintiff to him, said card being postmarked St. Petersburg, Florida, January 22, 1946, in which the plaintiff states, 'You well know we don't reside in Louisville, Kentucky.'

'The defendant states that the plaintiff is estopped from enforcing the judgment of this Court for the payment of maintenance for her infant...