Dayton v. Dayton

• Decision Date: 24 April 1942
• Citation: 290 Ky. 418,161 S.W.2d 618
• Parties: DAYTON v. DAYTON.
• Court: Kentucky Court of Appeals

161 S.W.2d 618

290 Ky. 418

DAYTON v. DAYTON.

Court of Appeals of Kentucky

April 24, 1942

Appeal from Circuit Court, Fleming County; C. D. Newell, Judge.

Action for divorce by Bessie Dayton against Clinton Dayton, wherein defendant filed counterclaim also seeking a divorce. From a judgment granting plaintiff a divorce but denying to her the custody of the two younger children and awarding alimony in a lump sum, plaintiff appeals.

Judgment affirmed in part and reversed in part and remanded with directions.

B. S Grannis, of Flemingsburg, for appellant.

John P McCartney, of Flemingsburg, and Will Conley, of Carlisle, for appellee.

THOMAS Justice.

In the preparation of this opinion there will be cited only a small number of domestic cases as examples of many others sustaining the propositions advanced, the cited ones referring to others of like tenor. This case is a divorce action filed by appellant, the wife and plaintiff below against the appellee, husband and defendant below. They were married on October 9, 1918, and at the time of the filing of the action in the Fleming Circuit Court on March 26, 1941, and at the time of the rendition of the judgment, they had four children, three boys and one girl. The oldest boy was 21 years of age, the next oldest 19 years of age, and the youngest 8 years of age, the girl being 17 years of age. Plaintiff at the time of the marriage was a young widow 25 years of age and she had one son by her first marriage, but he was not a member of the family at the time of the filing of the action. Defendant at the time of the marriage was some two or three years older than plaintiff and they immediately took up their abode in Nicholas County across the line from the adjoining one of Fleming. Plaintiff possessed at the time of the marriage household goods sufficient to supply a home and $2,100 in cash collected from an insurance company carrying a life policy on her deceased first husband. She carried all of her household goods to their first acquired home and supplied it with those articles. She likewise turned over to her husband, the defendant, $1,030 from her insurance money, and the parties started out on life's journey as cultivators of the soil. Children began to appear until the daughter, now 17 years of age, was born, but there was an interim of nine years between her birth and that of the youngest 8-year old boy.

The grounds of divorce alleged in the petition are, cruel and inhuman treatment of plaintiff by defendant, and his settled aversion to her so as to permanently destroy her peace and happiness and which existed more than six months prior to the filing of the petition. Those grounds were denied by defendant's answer, and he counterclaimed in reliance upon the same grounds leveled against defendant, which were in turn denied by a reply and proof was taken. Upon submission the court granted plaintiff a divorce, thereby sustaining her grounds and rejecting defendant's counterclaim. Plaintiff prayed in her petition for the custody of the daughter and the youngest male child, but the court in its judgment denied her that relief and adjudged her a lump sum of $800 alimony. Complaining of the inadequacy of alimony, and disallowing her the possession of her two children, the right to the custody of whom she asserted--and especially as to the young boy--she prosecutes this appeal; but no cross-appeal has been prosecuted by the husband.

As is usually true in such cases the proof on the relied-on grounds for the divorce is more or less contradictory. Our appraisement of it, however, coincides with the judgment of the Chancellor to the effect that the husband was to blame for the tragic and unfortunate conditions produced, resulting in the breaking up of a home to the detriment of the fruits of the marriage as well as to the parties themselves. The proof shows that the wife may have possessed some temper, and--being human--she, no doubt, also possessed some resentment and retaliation. The husband was more or less cold and appears to have lacked an appreciation of domestic duties and a proper conception of his obligations to the plaintiff as his life partner. She is shown, without contradiction, to have loyally and industrially devoted herself to the running of the household and in caring for her children, and, no doubt, she entertained the same sentiment toward her husband, the defendant, so far as his attitude towards her would permit. There is proof that the plaintiff on occasions abused defendant in more or less rough language but which she denied. However, if true such occasions were shown to be those when her husband would be venting on her one of his more or less rampages and exhibiting the constant growing coldness which eventually resulted in plaintiff leaving the household and taking up her abode in Fleming County with some of her relatives. About four years before the filing of this instant action she proceeded in a similar manner to have the bonds of matrimony dissolved upon the same grounds relied on in this one, but that case never went to trial, since she was persuaded by her husband to return home and resume her station therein, followed by a dismissal of that action. However, plaintiff's proof showed that instead of her husband's attitude and conduct towards her improving thereafter, matters grew worse, but which plaintiff endured until the final separation, followed by her filing the instant action.

It will serve no useful purpose to recite in detail the testimony of the various witnesses on the determinative factual issues except to say that there was most convincing testimony that defendant frequently employed most abusive language to plaintiff, calling her the vilest of names, profanely expressed. Not only so, but on occasions he would assault her person by striking her, and at least on one occasion the proof shows that he bruised her body and loosened one of her front teeth. If, therefore, defendant's testimony as to retaliatory conduct on the part of the wife were true, it could easily be attributed to that quality of human nature limiting human endurance--known as...