Cooke v. Cooke

• Court: Supreme Court of Kentucky
• Writing for the Court: PALMORE
• Citation: Cooke v. Cooke, 449 S.W.2d 216 (Ky. 1969)
• Decision Date: 07 November 1969
• Parties: Ralph W. COOKE, Appellant, v. Viola Dee COOKE, Appellee.

Page 216

449 S.W.2d 216

Ralph W. COOKE, Appellant, v. Viola Dee COOKE, Appellee.

Court of Appeals of Kentucky.

Nov. 7, 1969.

C. B. Creech, Creech & Hogg, Ashland, for appellant.

Henry R. Wilhoit, Jr., Grayson, for appellee.

PALMORE, Judge.

In this divorce action between Viola Cooke and Ralph Cooke the trial court granted Viola a divorce, custody of the children, and possession of a jointly owned home until further order of the court. Ralph was directed to make weekly payments for the support of the children and to assume their necessary medical expenses. There was no award of alimony. The court found that the parties had contributed equally to the ownership of their home and its furnishings and made no provision for restoration. The property was valued at $17,500 subject to a $4,000 mortgage, payment of which Ralph was directed to assume. Ralph appeals, contending the judgment should be modified to restore the property to him and award Viola alimony instead of an undivided interest in the property.

The property was purchased in 1958 for $7,500. It consisted of a small 3-room shop on a little less than two acres of land. The existing structure was enlarged and improved and made into a home by the joint efforts and industry of Ralph, Viola, and the children. This has been a continuing project, reflecting great credit on the entire family. The trial court found that Ralph and Viola, having contributed equally to the ownership of the property and its furnishings, were joint and equal owners.

As suggested in Baker v. Baker, Ky., 344 S.W.2d 391, 392 (1961), the orthodox procedure where the husband has furnished the initial capital investment is to restore the property to him and compensate the wife through alimony secured by a lien. But this is merely subterfuge. Alimony and an equitable interest in property are not the same. They have come to be brewed in the same pot only because of another fallacy, which is that the property in question must be said to belong to one party or the other, when the truth of the matter is that it belongs to both, and if it had not been for the efforts of both it would have belonged to neither.

We see no justifiable reason why the 'happenstance' of which party had the cash to put up the original down payment, however, small it may have been as compared with the present net value of the property, should be the immutable criterion of 'ownership'. This case provides an apt illustration. For example, in Viola's words this is the kind of contribution she made to the physical structure itself:

'Well, if we...