Corrigan v. Corrigan

• Decision Date: 28 October 1947
• Citation: 205 S.W.2d 495,305 Ky. 695
• Parties: CORRIGAN v. CORRIGAN et al.
• Court: Kentucky Court of Appeals

205 S.W.2d 495

305 Ky. 695

CORRIGAN v. CORRIGAN et al.

Court of Appeals of Kentucky

October 28, 1947

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Lawrence F. Speckman, Judge.

Action for divorce by Mary Marcella Corrigan against Raymond Bernard Corrigan, wherein defendant filed a counterclaim for divorce. From a judgment granting plaintiff a divorce and awarding to her alimony and attorney's fee, defendant appeals, making plaintiff's attorneys joint appellees.

Judgment affirmed in part and reversed in part for further proceedings consistent with opinion.

Arny & Richard, of Louisville, for appellant.

Mortimer Viser and Davis, Boehl, Viser & Marcus, all of Louisville for appellees.

SILER Justice.

Mary Marcella Corrigan, appellee, recovered a judgment against Raymond Bernard Corrigan, appellant, for a divorce and for alimony amounting to $40 monthly and for a fee amounting to $300 for her attorneys, now joint appellees herein. Thereupon, the former husband perfected this appeal.

Appellant contends that the divorce should have been granted to him on his counterclaim and that since the chancellor erroneously granted the judgment to Mrs. Corrigan, this court should now reverse that part of the judgment allowing her either alimony or an attorney fee.

Mrs Corrigan based her suit on a claim of six months cruel and inhuman treatment. The husband, after denying the existence of her claim, based a counterclaim on the ground of Mrs Corrigan's sexual impotence and malformation and on the ground of her abandonment of him.

These parties made their final separation on December 7, 1945, and they, with the aid of their respective attorneys, executed a formal separation agreement in writing on December 29, 1945. The agreement provided for payments of $40 to be made monthly by Corrigan to Mrs. Corrigan for her future support, also provided for Mrs. Corrigan to have all the husehold furniture in their mutual home, also provided for Corrigan to pay the costs, including a $75 fee for her attorney, in any action for divorce that she might institute, also provided for an inclusion of this separation agreement in any judgment that might be rendered in any divorce action between them.

This marriage of the Corrigans began on June 18, 1934, and it continued in effect for nearly 12 years. They are both members of the Catholic faith. No child has ever been born to their union. Corrigan's position with one of the leading Louisville banks pays him a salary of only $200 monthly and therefore this couple has never succeeded in accumulating any property and has continually lived in modest circumstances.

In support of her charge of cruel and inhuman treatment, Mrs. Corrigan produced evidence tending to show that her husband had fallen into the habit of staying out most of the night on many nights, staying out the entire night on some occasions, staying away from home in poker games until late in the night or until early in the morning a few times, stayng out long hours at night sometimes and then coming home full of beer, whiskey, raw onions or limburger. Her evidence showed that he would often call and say he was coming home and that he would then fail to arrive. And sometimes, as she stated, she would ask him where he had been and he would, by way of reply, only look at her. These were typical elements and instances of Corrigan's cruel treatment of her and they undoubtedly were, if accepted as true, sufficient to support Mrs. Corrigan's claim for divorce.

On the other hand, the former husband related that although he and Mrs. Corrigan got married 12 years ago, yet they never became one flesh. He said, in substance, that she was as cold as an Arctic snowdrift and that the marriage status between them was continually nominal in character rather than actual. He said that her love, if any, for him was always Platonic and that he was never once able to sell to her the idea of the desirability of a coition with him. He pointed to their childless condition as evidence sustaining his assertions. He explained that he continued this sexless marriage because he never quite abandoned his illusion of hope for a happier, more successful, future relationship and also because cause his religious conviction uncompromisingly denounced any thought of a divorcement of this marriage. He furthermore explained that before he ever understood his legal rights under these circumstances and before he had even mentioned Mrs. Corrigan's unwifely attitude of 12 years' standing to his attorney, he had executed their separation agreement which he says should now be vitiated by the court in this litigation.

By way of rebuttal, Mrs. Corrigan categorically, emphatically and repeatedly denied all of the evidence produced by her husband and his witnesses relating to any unwifely attitude on her part at any time. Their marital adventures began, she said at the rate of three weekly experiences and continued without termination clear into...