Clark v. Clark

• Decision Date: 23 June 1944
• Citation: 298 Ky. 18
• Parties: Clark v. Clark.
• Court: United States State Supreme Court — District of Kentucky

298 Ky. 18

Clark v. Clark.

Court of Appeals of Kentucky.

June 23, 1944.

1. Divorce. — Paramount consideration in awarding custody of child in divorce action is welfare of child.

2. Divorce. — Courts are loath to deprive divorced mother of custody of very young child and only when it clearly appears that mother is unfit person to have custody of young child, should she be deprived of it.

3. Divorce. — Where it was not established that wife was promiscuously immoral, although she was indiscreet with another man during her marriage, but she married such man after divorce was granted, and husband was engaged in war work in another state, custody of boy five years old was awarded to wife, notwithstanding that husband's mother was willing to live with husband to take care of boy.

Appeal from Warren Circuit Court.

G.S. Milam for appellant.

G.D. Milliken for appellee.

Before Robert M. Coleman, Judge.

OPINION OF THE COURT BY CHIEF JUSTICE FULTON.

Affirming.

In this action the appellee sought a divorce from the appellant on the ground of cruelty. The appellant, by counterclaim, sought a divorce on the ground of lewd and lascivious conduct proving the appellee to be unchaste. The Chancellor awarded the appellee a divorce and custody of a five and a half year old boy and directed the appellant to pay twenty dollars per month for his maintenance. The appellant was given the right of visitation. This appeal is from so much of the judgment as awarded custody of the child to the appellee.

The parties were residing in Idaho in 1939 and the appellant was doing farm work. The appellee returned to Kentucky with her mother on January 1, 1940 and the appellant went to the state of Washington to seek work. He there attended a government school in connection with a war industry and later went to Pensacola, Florida, where he was employed as a metal worker. He returned home in the month of April to attend the funeral of his baby. He admits that he sent his wife only thirteen dollars from January to July.

Sometime in the month of June the appellee became enamoured of a man by the name of Ray Purdy. Without going into details, we are convinced from the evidence that undue intimacy existed between the appellee and Purdy. The appellee filed this action in July for the purpose of securing a divorce and marrying Purdy, proceeding against the appellant as a non-resident. The appellant knew nothing about the divorce action but returned to Kentucky upon receiving information as to the affair between Purdy and his wife. He then made defense to the action.

The evidence for the appellee...