Burns v. Burns

• Decision Date: 09 January 1917
• Parties: BURNS v. BURNS.
• Court: Kentucky Court of Appeals

190 S.W. 683

173 Ky. 105

BURNS v. BURNS.

Court of Appeals of Kentucky.

January 9, 1917

Appeal from Circuit Court, Robertson County.

Suit by Iva D. Burns against J. S. Burns for an absolute divorce and for alimony, and for an amount alleged to be due her under a written contract entered into between them, and to recover certain articles of personal property. Judgment for plaintiff, granting an absolute divorce and awarding her alimony and certain property, and dismissing the petition as to all other relief prayed for, and defendant appeals, and plaintiff cross-appeals. Affirmed upon the appeal, and reversed upon the cross-appeal with directions to modify the judgment.

R. L Northington, of Mt. Olivet, Jno. P. McCartney, of Flemingsburg, Robert Buckler, of Mt. Olivet, and Worthington Cochran & Browning, of Maysville, for appellant.

M. C Swinford, of Cynthiana, for appellee.

THOMAS J.

The appellee, to whom we shall refer as plaintiff, filed her suit in the court below against appellant, to whom we shall refer as defendant, seeking from him an absolute divorce from their bonds of matrimony, and to recover from him the sum of $4,000 alimony, and the further sum of $1,500, alleged to be due her under a written contract entered into between them on November 6, 1911, and some further items for money which she claims to have advanced to her husband from time to time during their married life. She furthermore sought to recover and have restored to her the following articles of personal property, which she claimed to have purchased and placed in the home with her own means: One Davis sewing machine, one organ, five rugs, a bed, a washstand, six rockers, a dining room safe, and hall tree. She furthermore claimed that she had purchased several other articles for the home, but they are neither specified in the petition nor, so far as we are able to discover, in the proof. The grounds alleged in the petition for the divorce which she seeks by the petition and the amendment thereto are (1) habitually behaving toward her by her husband for a period not less than six months in such cruel and inhuman manner as to indicate a settled aversion to her and to destroy permanently her peace and happiness; and (2) living in adultery with another woman. The trial court granted to the plaintiff an absolute divorce, and adjudged to her alimony in the sum of $3,500, and restored to her the organ, but dismissed the petition as to all other relief prayed for, and from that judgment the defendant prosecutes this appeal and the plaintiff has procured a cross-appeal in this court.

The questions presented are ones purely of fact to be gathered from the testimony in the record, with the application of the rules of law prevailing in this state in such cases. A brief statement of the facts shown by the record will be necessary to a proper understanding and adjustment of the unfortunate differences that have arisen between this husband and wife.

They were married in 1895 in Kentontown, Ky. near where the husband lived with his mother on a farm valued at about $4,000. At that time he was about 30 years of age, and his bride only 15 years of age. After living at this place some few years, another farm was purchased near Sardis, in Mason county to which the couple removed, and where they resided until the early part of the year 1915, when that farm was sold for $16,700, about half of which was paid in cash, and the other in deferred payments. After the sale of the farm they moved to the town of Sardis, where they resided until the separation occurred.

Aside from cultivating the farm, for a number of years the defendant had been engaged in operating a team between the cities of Maysville and Mt. Olivet, with which he hauled freight to and fro between said places and also for intervening points. This character of work necessarily kept him away from home a considerable portion of the time, and frequently at night. Most of the times when he would be absent, including at night, his wife would be alone in the home, and this, from time to time, caused protests to be made by her, and a naturally expressed desire that this feature of her husband's business be abandoned, which, however, was never done.

The plaintiff was notified before her marriage that her prospective husband's mother would be expected to live with them as a member of the household, to which arrangement she agreed. From some cause not shown by the record, disagreements arose between the plaintiff and the mother-in-law, resulting in the latter taking up her abode with another son after some seven or eight months following the marriage.

The defendant is shown to have been an industrious, economical, and steady worker, but he was addicted to the habit of an occasional use of liquor up until some few years immediately preceding August 21, 1911, after which time, and until the latter date, he consumed it in excessive quantities. This became so prevalent and common that on the day mentioned his wife left him and remained away until November 6, 1911, at which time, through the intercession of friends, the parties became reconciled and agreed to terms which were embodied in a written contract that day executed. The only stipulation of that contract with which we have any concern in this case is that providing that the husband would abstain from the use of intoxicants forever afterward "whilst they lived together as husband and wife," and if he should fail to do so he would pay to his wife the sum of $1,500, for which he executed to her his note with the foregoing condition contained therein. He was then treated for inebriety, and so far as the proof is concerned, he scrupulously observed his promise as long as he and his wife lived together. So without having to refer to this point again, and waiving the question as to whether this is such an obligation as may be enforced in law, the judgment appealed from in so far as it denied a recovery of the $1,500 is undeniably correct, and we will make no further reference to it, except to say that in that contract the defendant admitted that:

"His wife was legally justified in leaving him, and that she so left him because of first party's excessive use of liquors and his consequent acts of wrong treatment of her growing out of the same; that their lives were happy at all times save by the use of liquor by the first party."

There were no children born of the marriage. It is shown without contradiction that the plaintiff was a most industrious and painstaking wife. She is shown to have constantly had in mind, even to an exceptional degree, the fulfilling of the requirements which might be expected of a faithful, assisting, and economical helpmeet. She did, almost without help, all the household duties, including the cooking, and a large part of the washing. Sometimes when her husband was away she would attend to the stock on the farm, and she busied herself year after year raising poultry of different kinds, selling eggs and butter, from the proceeds of all of which she clothed herself and furnished a large portion of the clothing for her husband. Not only so, but from this source she furnished to him from time to time different sums of money as he would request, the largest amount at any one time being $80, and ranging from that on down to a paltry sum. From this same source, also, she purchased the organ and articles of personal property before mentioned, which she asked to be restored to her in this case. Her husband, although a man of good standing, and, so far as we can detect, an honorable, upright citizen, having filled the office of sheriff of his county, was lacking in his full, congenial affections so much necessary in a husband for the happiness of his wife. While in a way, and according to his manner, he appeared to be kind, still this was tempered with a noticeable coolness and indifference which chilled the glow of the family fireside, and while he was what is known in common parlance as "a good provider," he was not a scatterer of sunshine in the pathway of his wife. He may not be to blame for this, as such conduct is frequently the outgrowth of a disposition for which the possessor is not responsible. For instance, he would not go with his wife to church, although she seems to have desired this and was a regular attendant herself. The only public gathering which the record discloses that he ever attended with her was the funeral of a neighbor, occurring a year or more before the separation. He would seldom visit her people, and manifested indifference as to whether they visited his house. Yet in all his conduct toward his wife, except that to which we shall hereafter refer, we find nothing smacking of the dishonorable, or subject to legal criticism.

Along...