Duke v. Duke

• Court: Kentucky Court of Appeals
• Writing for the Court: MOORMAN, J.
• Citation: Duke v. Duke, 198 Ky. 173, 248 S.W. 500 (Ky. Ct. App. 1923)
• Decision Date: 09 March 1923
• Parties: DUKE v. DUKE.

248 S.W. 500

198 Ky. 173

DUKE v. DUKE.

Court of Appeals of Kentucky.

March 9, 1923

Appeal from Circuit Court, Kenton County, Criminal, Common-Law, and Equity Division.

Suit for divorce by Elizabeth Duke against John T. Duke. Decree for plaintiff, and both parties appeal from the portion of the decree determining the property rights. Affirmed on original and cross appeals.

Martin J. Brown, of Covington, for appellant.

Applegate & Manson, of Covington, for appellee.

MOORMAN J.

In December, 1918, appellant, Elizabeth Duke, filed suit in the Kenton circuit court against appellee, John T. Duke, for divorce on the ground of cruel and inhuman treatment. More than a year afterwards appellee filed answer and counterclaim, denying the allegations of the petition and asking for a divorce on the ground of abandonment. The lower court granted a divorce to appellant, and, in addition to allowing her to retain about $3,000 that appellee had previously given her, awarded her alimony in the sum of $50 a month, subject to the further orders of the court. Their residence at 410 Delmar Place, Covington, Ky. was adjudged to appellee, but the household furniture was given to appellant. Appellant contends that it was error not to adjudge the residence to her, and appellee insists on the cross-appeal that the divorce was unauthorized, and, in consequence, the award of alimony should be reversed.

The parties were married in 1894. Appellee, who is a train conductor for the Chesapeake & Ohio Railway Company, is 56 years of age, and appellant is 6 years his junior. Appellee is earning about $200 a month. When the parties were married they had nothing; but both of them seem to have been industrious and economical. From their saving they bought the home at 410 Delmar Place, which is worth $6,000 or $7,000. Appellee had accumulated $3,000 in cash about a year before this suit was filed, and perhaps has saved something out of his salary during the several months that this action has been pending. The parties have no children, but the evidence shows that their married life was happy until as late as 1917. At that time they became involved in an altercation during which appellee struck appellant. She caused him to be arrested, but they agreed to compose their differences, and in an attempt to do so, he turned over to her the $3,000 that he had in bank. They lived together for several months thereafter, but their domestic affairs never again ran smoothly. In 1918 appellee lost his position at Covington, and was compelled to accept a position some distance from home. He remained away for 6 months, but was reinstated in his old position and returned to Covington. On his return he went to his home, but found several boarders in the house, and was informed by appellant that his room was occupied, but that he might occupy a room with another man in the house. He refused to stay, procured a room at the Y. M. C. A., and the next morning went to the house again, and got some of his clothing and personal effects. It is in evidence that he made threats against appellant in the neighborhood, and she then instituted this suit for divorce and procured a temporary injunction enjoining him from coming to the residence or interfering with or molesting her.

The testimony in respect to the grounds of divorce alleged is conflicting. No useful purpose can be served by discussing it in this opinion. It...