Clay v. Clay

• Decision Date: 11 December 1945
• Citation: Clay v. Clay, 301 Ky. 547, 191 S.W.2d 819 (Ky. Ct. App. 1945)
• Parties: CLAY v. CLAY et al.
• Court: Kentucky Court of Appeals

191 S.W.2d 819

301 Ky. 547

CLAY v. CLAY et al.

Court of Appeals of Kentucky

December 11, 1945

Rehearing Denied Feb. 1, 1946.

Appeal from Circuit Court, Montgomery County; James Dedman, Special Judge.

Action by William C. Clay, Jr., against Elizabeth E. Clay for a divorce and custody of infant daughter, wherein the defendant filed a counterclaim seeking a divorce, alimony, custody and maintenance for the child. A judgment was entered granting the divorce to plaintiff, denying alimony to defendant awarding alternate weekly custody of the child to each of the parties, decreeing that plaintiff should pay an amount for support of infant while in defendant's custody, and awarding defendant's attorneys $1,500 for their services. From so much of judgment as denied him exclusive custody of the child and allowed more than $500 to defendant's attorneys, the plaintiff appeals, and the defendant cross-appeals from so much of the judgment as denied her alimony and the exclusive custody of the child, and defendant's attorneys cross-appeal from the judgment denying them more than $1,500 for their services.

Affirmed on original appeal of defendant and cross-appeal of defendant's attorneys, and reversed on cross-appeal of defendant.

Edward C. O'Rear, of Frankfort, and H. Reid Prewitt, of Mount Sterling, for appellant.

Harry B. Miller, of Lexington, Fennell & Tucker, of Cynthiana Samuel M. Rosenstein, of Frankfort, and Robert Moss, of Mount Sterling, for appellees.

VAN SANT, Commissioner.

The motion to dismiss the cross-appeal, having been passed to the merits of the case, now is overruled.

The action was instituted by appellant, William C. Clay, Jr., who sought a divorce from appellee, Elizabeth E. Clay, and the custody of their infant daughter. In her counterclaim, Mrs Clay sought a divorce, alimony, custody of and maintenance for the child. The Chancellor granted the divorce to appellant; denied alimony to appellee; awarded alternate weekly custody of the child to each of the parties; and decreed that appellant should pay appellee $50 bi-weekly for the support of the infant while in the mother's custody. Appellee's attorneys were awarded $1,500 for their services, to be taxed as costs against appellant.

Appellant has appealed from so much of the judgment as denied him exclusive custody of the child, and as allowed more than $500 to appellee's attorneys. Mrs. Clay has cross-appealed from so much of the judgment as denied her alimony and the exclusive custody of the child. Mrs Clay's attorneys have cross-appealed from the judgment denying them more than $1,500 for their services in the action.

This Court may not reverse a judgment granting a divorce. KRS 21.060; Hanks v. Hanks, 282 Ky. 236, 138 S.W.2d 362. But it may review the evidence to determine the propriety of the judgment in other respects, such as awarding or refusing to award alimony, custody of children, and attorney fees. Winfrey v. Winfrey, 286 Ky. 245, 150 S.W.2d 689.

In recent years, we have adhered more strictly to the policy of refusing to detail evidence in a written opinion, where, as here, its recitation will not benefit the Bar or future litigants by establishing precedents considered to be helpful as a guide in subsequent litigation. We believe this to be a case in which this policy should be adopted; especially since appellant, in his brief in this Court, commended the Chancellor's 'admirable wisdom' in sealing the record from the public gaze, and has requested us to omit a review of certain portions of the evidence.

In granting the divorce, the Chancellor said: '* * * as Special Judge in this action I am hardly convinced that either the plaintiff or defendant is necessarily entitled to a divorce, * * *.'

After carefully reviewing all of the evidence, which consists of more than twelve hundred typewritten pages, we are firmly convinced that neither party was entitled to an absolute divorce. We have arrived at this decision because we have concluded that neither of the parties is without fault in respect to the charges made against the other. Appellant is of a studious temperament,...