Cawood v. Cawood

Decision Date04 December 1959
Citation329 S.W.2d 569
PartiesHelen R. CAWOOD, Appellant, v. Charles D. CAWOOD, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

James S. Golden, James C. Helton, Julian H. Golden, Golden, Helton & Golden, Pineville, for appellant.

Hubert F. White, Middlesboro, for appellee.

CULLEN, Commissioner.

The appeal is from orders overruling a motion and supplemental motion made under CR 60.02, by Helen R. Cawood, to set aside a divorce judgment granted to her husband, and for a new trial on the question of alimony.

The divorce judgment, granted on December 4, 1958, allowed the wife lump sum alimony, consisting of cash and personal property, in the amount of $21,500. She appealed, maintaining that the alimony allowance was inadequate. On that appeal the judgment has been affirmed. Cawood v. Cawood, Ky., 329 S.W.2d 567.

In September 1959 (while the appeal from the divorce judgment was pending), Mrs. Cawood filed her motion under CR 60.02 to have the judgment set aside. The motion was accompanied by her affidavit, stating that on August 10, 1959, she underwent an operation for the removal of a cancer of the breast; and that due to the operation and its permanent effect she would be disabled from earning her own living, and had been and would be subjected to medical and hospital expenses. She predicated her motion upon those provisions of CR 60.02 authorizing the setting aside of a judgment on the ground of newly discovered evidence, or if 'it is no longer equitable that the judgment should have prospective application,' or for a 'reason of an extraordinary nature justifying relief from the operation of the judgment.'

The husband, with his response to the motion, submitted a copy of a biopsy, showing that there was no evidence of a spread of cancer beyond the tissue removed in the operation, and a statement showing that the medical and hospital expenses of the operation had been taken care of by the husband's insurance and by a professional courtesy waiver.

The court overruled the motion. Mrs. Cawood then renewed her motion, and filed the affidavit of her doctor, which stated that the operation was performed, that there was no way to determine to what other parts of the body active cancer cells might have spread, that Mrs. Cawood would be required to undergo a course of therapy, and that in the doctor's opinion it would be difficult for Mrs. Cawood to obtain employment due to her history of having had cancer.

The trial court overruled the renewed motion and the appeal here is from the orders overruling both motions.

While it is most unfortunate that Mrs. Cawood has suffered an attack of the dreaded disease of cancer, we are unable to find in this fact a basis for setting aside the judgment.

A judgment granting lump sum alimony is not subject to modification upon a change of conditions, as is the case where alimony is payable in...

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  • Wilkes v. Iowa State Highway Commission
    • United States
    • Iowa Supreme Court
    • May 5, 1971
    ...v. Curtis Publishing Company, 242 F.Supp. 390, 392 (N.D.Ga.); Rogers v. Ogg, 101 Ariz. 161, 416 P.2d 594, 596--597; Cawood v. Cawood, 329 S.W.2d 569, 570--571 (Ky.). Also, as stated in 66 C.J.S. New Trial § 101, at 294: 'In any but an extraordinary case in which an utter failure of justice ......
  • Foley v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • March 20, 2014
    ...“may be invoked only under the most unusual circumstances[.]” Howard v. Commonwealth, 364 S.W.2d 809, 810 (1963); see also Cawood v. Cawood, 329 S.W.2d 569 (1959). Furthermore, and perhaps most importantly for our present purposes, “in order for newly discovered evidence to support a motion......
  • Asset Acceptance, LLC v. Moberly, 2006-SC-000617-DG.
    • United States
    • United States State Supreme Court — District of Kentucky
    • December 20, 2007
    ...of an extraordinary nature," is to be invoked "only with extreme caution, and only under most unusual circumstances." Cawood v. Cawood, 329 S.W.2d 569, 571 (Ky.1959). It is available only for reasons "not otherwise set forth in the rule," Commonwealth v. Spaulding, 991 S.W.2d 651, 655 (Ky.1......
  • Peeler v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • October 12, 2018 judgments, this clause must be invoked only with extreme caution, and only under most unusual circumstances." Cawood v. Cawood, 329 S.W.2d 569, 571 (Ky. 1959). "The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion. For a trial c......
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