Canine v. Canine

• Decision Date: 16 May 1891
• Citation: 16 S.W. 367
• Parties: CANINE v. CANINE.
• Court: Kentucky Court of Appeals

16 S.W. 367

CANINE v. CANINE.

Court of Appeals of Kentucky.

May 16, 1891

Appeal from Louisville law and equity court.

"Not to be officially reported."

J. B. &amp R. C. Kinkead, for appellant.

Fairleigh & Straus, for appellee.

HOLT C.J.

The appellant, Lillian C. Canine, sued her husband, the appellee Hal B. Canine, for divorce upon the ground of abandonment. The defense was that she caused it. An absolute divorce was granted to her. She was, however, refused alimony, and of this she now complains. The husband attempts to justify his leaving her upon the ground that her temper was so ungovernable he could not live with her. Our statute authorizes a divorce, "to the party not in fault, for * * * abandonment by one party of the other for one year;" and she now contends-- First, that such a defense cannot be heard; but, second, if it can, that then she was not in fault. It is true, that mere fits of ill temper upon the part of the wife, or occasional quarrels occasioned by her, although rendering the marriage relation unhappy, do not authorize her abandonment by the husband just as they do not authorize the dissolution by a court of that relation, unless they go to the extent of endangering his personal safety. In the language of the English common law, they must proceed to the extent of saevitia involving his personal security, before they can constitute ground for a divorce. This rule is necessary to the maintenance of the marriage relation, and the proper conduct of society. The question in such a case is, therefore, to what extent has the manifestation of the ill temper gone? and this involves the introduction of testimony. If it has gone to the extent indicated, then it cannot be said that she is not in fault, and it would be improper to either grant her a divorce or give her alimony upon the ground of abandonment. The statute provides: "If the wife have not sufficient estate of her own, she may, on a divorce obtained by her have such allowance out of that of her husband as shall be deemed equitable." Gen. St. c.52, art. 3, § 6. This statute gives a discretion to the court; but it is, of course, not an arbitrary, but a legal, one. It should be exercised in her favor, unless it appear the husband had legal cause for leaving her. It is said, however, that the allowance of alimony must depend upon the facts of each case, and must be regulated by a sound discretion; therefore, if the chancellor has refused it, his judgment should be presumed to be correct. This view should not control, as this case is presented. The chancellor, by ordering the divorce, has said that the husband was in fault; and yet he has refused the wife, who is utterly without means, alimony. This court is, by statute, without revisory power over a judgment of divorce. It must...