Duncan v. Duncan
| Citation | 170 S.W.2d 22,293 Ky. 762 |
| Parties | DUNCAN v. DUNCAN. |
| Decision Date | 16 February 1943 |
| Court | Court of Appeals of Kentucky |
Rehearing Denied April 27, 1943.
Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division; Gilbert Burnett, Judge.
Action by Anne Louise Munson Duncan against Charles Y. Duncan for divorce and custody of the parties' minor children. From a judgment amending a judgment, awarding the children's custody to plaintiff, by allowing her to move to another state with them, defendant appeals.
Affirmed.
Dodd & Dodd and W. S. Heidenberg, all of Louisville, for appellant.
Kammerer & Hatton, of Louisville, for appellee.
This is a companion case to Duncan v. Duncan, this day decided. In that case Charles Y. Duncan, the defendant in a divorce action instituted by his wife, appealed from so much of the judgment rendered by the Jefferson circuit court May 13 1942, as awarded to the plaintiff the custody of their three children. The judgment was affirmed.
On December 7, 1942, while the appeal from the judgment of May 13, 1942, was pending, the plaintiff in the divorce action Anne Louise Munson Duncan, filed an amended and supplemental petition in the Jefferson circuit court asking for a revision of clause 3 of the judgment relative to the care and custody of the children and that she be permitted, by reason of the change of circumstances set out therein, to move with her three infant children to Wayne, Delaware county Pennsylvania. With her amended and supplemental petition she filed her affidavit in which she stated, in substance, that her residence is located in Jefferson county about 10 miles east of the city of Louisville, and that since June, 1942 she has found living at that distance in the country under wartime conditions increasingly difficult for herself and her three infant children, Charles Y. Duncan, Jr., Annie Franchot Duncan, and Edgar Munson Duncan, now 8, 5, and 3 years of age, respectively; that at her present residence she cannot maintain herself and her three children in the station of life to which they are accustomed for the sum of $60 a month, the amount allowed her as alimony for herself and maintenance for the children in the divorce judgment; that she has arranged to lease a modern frame residence in Wayne, Pennsylvania, about a mile from the home of her brother, his wife and their two small children, and about 5 miles from the home of her uncle, George Munson, and his family; that Wayne, Pennsylvania, a modern suburb of Philadelphia, has suburban train service, a modern retail district, schools, and excellent physicians; that her uncle, Charles P. Franchot, has made arrangements for her and her children to be furnished funds at the rate of $400 a month; and that it is essential that she live near her relatives for help, comfort, safety, and financial assistance for herself and children. The defendant, Charles Y. Duncan, filed an answer to the amended and supplemental petition and his affidavit in which he stated that he is a school teacher employed in the Shawnee High School in Louisville, Kentucky, at a salary of $2,350 per annum; that under the judgment he is forced to pay to the plaintiff for the maintenance of herself and their infant children the sum of $60 a month and an attorney's fee of $500 at the rate of $20 a month, and that by reason of these and other expenses growing out of the litigation he has not now and will not have for a long period of time funds with which to make a visit to the state of Pennsylvania for the purpose of seeing his children; that aside from the condition of his financial affairs it would be exceedingly unpleasant and embarrassing to visit his children in the home or locality of the home where plaintiff proposes to reside. He further stated that the plaintiff has lived in Louisville for many years, is acquainted with many people, and that there are many places in and about the city of Louisville where she could live in the same comfort and society which she has heretofore enjoyed;...
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