Franck v. Franck

• Decision Date: 07 December 1899
• Citation: 107 Ky. 362,54 S.W. 195
• Parties: FRANCK v. FRANCK. [1]
• Court: Kentucky Court of Appeals

54 S.W. 195

107 Ky. 362

FRANCK v. FRANCK. ^[1]

Court of Appeals of Kentucky.

December 7, 1899

Appeal from circuit court, Jefferson county, law and equity division.

"To be officially reported."

Rule by Katie Franck against John L. Franck to enforce payment of alimony previously adjudged to plaintiff. Judgment refusing to enforce payment of alimony which accrued subsequent to plaintiff's second marriage, and plaintiff appeals. Affirmed.

Lane &amp Burnett, for appellant.

Harris & Barr, for appellee.

BURNAM J.

On the 15th day of May, 1879, the following judgment was rendered in the Louisville chancery court in a proceeding by appellant against appellee for alimony: "It is further ordered and considered by the court that the defendant, John L. Franck pay unto the plaintiff, Kate Franck, the sum of $15 on the 8th day of June, 1879, and a like sum of $15 on the 8th day of every month from and after the 8th day of June, 1879 until the further order of this court. The said sum of $15 is hereby allowed plaintiff for her support and maintenance, to be paid by defendant as aforesaid." Subsequently the appellant brought another suit in the same court, in which she was decreed an absolute divorce, and on the 24th day of January, 1889, she married one A. W. Bollinger. Appellee never paid any part of the alimony adjudged against him in the first proceeding, and no steps were taken to enforce it until October 31, 1896, when appellant obtained a rule against appellee to show cause why he had not complied with the judgment, to which he responded--First, with a plea of limitation; and, second, he pleaded that appellant was the wife of another man who was willing and able to support her and that since the rendition of the judgment for divorce he had himself married again, and had five children by the second wife, who were dependent upon him for support; and, third, that he had no means out of which to pay her judgment for alimony or any part thereof. Appellant, in her response to this reply, denied that limitation applied, or that her marriage to Bollinger annulled her judgment for alimony, or that appellee had no means with which to pay the judgment; and averred that he was the only child of J. T. Franck, who died in October, 1896, the owner of a lot on Madison avenue, and a lot on the east side of Pope street, in the city of Louisville, which were not disposed of by his will, and which descended to appellee as heir at law, and were subject to his debts, and asked that they be subjected to the payment of her judgment for alimony. Appellee, for rejoinder to this reply of plaintiff, said that his father at the date of his death owned a piece of ground lying along the south side of Frankfort avenue, through the eastern part of which Pope street was cut; that he owned one lot east of Pope street, which was situate on the southeast corner of Frankfort avenue and Pope street; and that the remainder of the tract lay south of Frankfort avenue, and along the west side of Pope street; and further averred that his father owned, at the date of his death, the lot on Madison street, upon which he had a mortgage at the time his will was made, which mortgage was afterwards foreclosed, and the lot bought in by him for the amount of the mortgage; and he alleged that all of this property is covered by the fourth clause of his father's will, which reads as follows: "I give and bequeath all my personal property that I have, or may have after my death, to my daughter-in-law Clara Franck; also all the ground or lots on both sides of Pope street shall belong to her; also all the ground fronting on Frankfort avenue, west of Pope street and extending back to Hunter's line; also the old dwelling house shall belong to my daughter-in-law Clara Franck, free from the control of her husband;" and that he had no interest therein. The motion being submitted to the chancellor upon the pleadings and exhibits, it was adjudged that there was due and owing by appellee to appellant $2,707.90, with interest from the 15th day of May, 1897, this being the amount of principal and interest due appellant, as alimony, up to her marriage, on the 24th day of January, 1889, and for which she could sue out execution. The chancellor refused to enforce the payment of any alimony which accrued subsequent to the date of the second marriage, and also refused to subject the property alleged to belong to appellee to the payment of this judgment, and to correct these alleged errors this appeal is prosecuted.

"The right to alimony, and the amount thereof, is not a strict and absolute right, but largely rests upon judicial discretion to be exercised according to established principles of law, and upon an equitable view of all of the circumstances of the particular case." See Bish. Mar. & Div. § 996. And when the allowance is to be paid in installments fixed...