Boreing v. Boreing

• Decision Date: 13 January 1903
• Parties: BOREING v. BOREING.
• Court: Kentucky Court of Appeals

71 S.W. 431

114 Ky. 522

BOREING v. BOREING.

Court of Appeals of Kentucky.

January 13, 1903

Appeal from circuit court, Laurel county.

"To be officially reported."

Action by Sarah R. Boreing against Vincent Boreing. From so much of a decree of divorce as refused to award plaintiff either maintenance or alimony, she appeals. Reversed.

W. S Pryor and W. R. Ramsey, for appellant.

T. L Edelen, Chas. R. Brock, Tinsley & Faulkner, and Hazelwood &amp Parker, for appellee.

BARKER J.

The appellee, Vincent Boreing, and the appellant, Sarah R Boreing, were married in Laurel county, Ky. in 1889, and lived together as man and wife until 1893, when appellant left appellee's home, and has lived separate and apart from him, without cohabitation, ever since. After leaving appellee, appellant departed from the state of Kentucky, and spent the greater part of the time intervening between said date and the time when this action was instituted in various parts of the United States, teaching school and doing clerical work in order to support herself. She finally returned to this state, and on the 23d day of February, 1901, instituted this action against her husband, praying for a divorce from the bonds of wedlock with him, upon the ground of their having lived separate and apart, without cohabitation, for five consecutive years next before the institution of the action. She further alleges in her petition, among other things, that she was without any estate or income, was out of employment or means of support, and that the appellee, her husband, was the owner of a large estate, from which he derived, together with his avocations, a large annual income; and she prays for alimony, maintenance, and costs, including reasonable counsel fees. Upon the trial of the case below, the chancellor divorced appellant from appellee a vinculo matrimonii, but refused to award her either maintenance or alimony, from which latter part of the decree she is in this court on appeal.

We think the allegations of the petition are sufficient to warrant both the claims for divorce and alimony; but, if there be any weight to the contention that it was necessary, in order to maintain her claim for alimony, that she should have alleged that the separation was without her fault, it is clear that appellee's specific allegation in his answer that the separation was without his fault cured such defect.

We do not think that appellant lost her residence in Kentucky by the fact that, in order to maintain herself, she left the state; she was still the wife of appellee, and his residence was her residence, and continued to be so during all of the time that she was absent. The separation commenced in Kentucky, and, if it be necessary, in order to obtain a divorce on the grounds relied upon in this action, that her home should have been in Kentucky during the five years specified, we think that the facts in this case show that appellant had the necessary residence here.

The appellant was not competent to testify in this case, and the exception to her deposition was properly sustained.

The record shows a lamentable state of affairs existing between the parties hereto. They are both people of high standing culture, and social position, and it is a matter of deep regret that their marital life should have been so unfortunately disrupted. Appellant is shown, by all of the evidence in this case, to be a woman of the highest education and refinement, deeply religious in her life, gentle in her manners, and considerate of all with whom she came in contact. When she went to the home of appellee as his wife, she seems to have been a happy, bright, and cheerful woman. She took up her household duties at once, and discharged them, during the time that she remained in the house of appellee, faithfully and well. All of the witnesses agree upon this, whether they have deposed for her or for her husband. The household work cast upon her was hard and onerous, and she often performed domestic labor which must have severely taxed both her strength and patience; but this record fails to show that she at any time complained of or repined at the hardness of her lot. We are not disposed to impute any blame to appellee for this state of affairs. It may have been (and he is entitled to the presumption, in the absence of evidence on that point) that there was great difficulty in obtaining household help in London, and that it was the result of his inability to obtain domestic servants that his wife had to perform the severe duties of which the witnesses speak. Perhaps we could not better illustrate her self-sacrificing fidelity to her husband's interest than by relating that the evidence shows that upon one occasion, when there was a political convention being held in London, before which her husband was a candidate for nomination, his wife left the side of her dead mother, where she was watching, in order to superintend and assist in preparing dinner at his home for the entertainment of his political friends. It does not appear that...