Freeman v. Freeman

• Decision Date: 13 March 1890
• Citation: 13 S.W. 246
• Parties: FREEMAN v. FREEMAN.
• Court: Kentucky Court of Appeals

13 S.W. 246

FREEMAN v. FREEMAN.

Court of Appeals of Kentucky.

March 13, 1890

Appeal from circuit court, Washington county.

"Not to be officially reported."

J. W S. Clements and T. C. Bell, for appellant.

C. C McChord and John W. Lewis, for appellee.

HOLT J.

The appellant, S.W. Freeman, and the appellee, Laura Freeman intermarried on September 26, 1887. He was then about 60 and she about 26 years old. Their honey-moon was of short duration. They separated on November 29, 1887. December 5, 1887, the appellant conveyed to his sisterin-law, a woman without means, and then about 50 years old, his land and all his property; the recited consideration being that she should pay his debts, care for him during life, and bury him decently at his death. December 19, 1887, the wife brought this action for alimony. Her petition avers that the appellant, during the short time they lived together, had abused and assaulted her, and then driven her from his home. Other conduct improper in a husband is alleged, but it need not be mentioned. She had been twice married before her marriage to the appellant. In 1879 she married one Baldwin. After a short time he abandoned her. They had no children. In 1882 she married one Hays. He died in about a year. By him she had one child, that is yet living. After her first husband left her, she heard nothing of him, save that it was rumored he was dead, and she was informed by one person that a man of his description, habits, and occupation had died at a certain time and place. Upon the other hand, there is testimony tending to show that he was still alive when she married the appellant. The evidence upon this point is conflicting, and so much so that the judgment of the chancellor will not be disturbed upon this ground.

It is urged, however, that upon the pleadings the wife was not entitled to any relief; and, if so, the judgment must yet be reversed, because it afforded more than was asked. The statute provides that habitual behaving by the husband towards the wife, for not less than six months, in such a cruel and inhuman manner as to indicate a settled aversion to her, or to destroy permanently her peace and happiness, shall be ground for a divorce. Another ground is: "Such cruel beating or injury, or attempt at injury, of the wife by the husband, as indicates an outrageous temper in him, or probable danger to her life, or great bodily injury, from her remaining with him." Gen. St. 728. These are grounds for an absolute divorce, and, conceding that the averments of the petition in this case did not set forth sufficiently either ground, yet the suit is only for alimony, and our statute provides: "Judgment for separation, or divorce from bed and board, may also be rendered for any of the causes which allow divorce, or for such other cause as the court in its discretion may deem sufficient." Id. 730. The discretion thus given is not, of course, arbitrary or unlimited; but must be a sound legal one, and only to be exercised upon such grounds as the chancellor may deem sufficient, having regard to the legal rights and obligations of the parties. It is plain, however, from the language of the statute, that he is not restricted to the statutory grounds which authorize an absolute divorce. Before the adoption of our statutes, the law gave to the wife, upon sufficient grounds, the right to a decree of separation and alimony, although no legal cause for divorce existed. The statute recognizes this right. Shrock v. Shrock, 4 Bush, 682. In our opinion, the averments of the petition were sufficient in this respect. The evidence as to...