Furgerson v. Furgerson

• Decision Date: 07 May 1948
• Citation: 307 Ky. 394,211 S.W.2d 161
• Parties: FURGERSON v. FURGERSON.
• Court: Kentucky Court of Appeals

211 S.W.2d 161

307 Ky. 394

FURGERSON v. FURGERSON.

Court of Appeals of Kentucky

May 7, 1948

Appeal from Circuit Court, Daviess County; Sidney B. Neal, Judge.

Suit by Laura Ann Furgerson against Karl R. Furgerson for divorce. From that part of judgment awarding plaintiff a specified sum of alimony, plaintiff appeals and defendant cross-appeals.

Affirmed.

Earle M. Nichols, of Madisonville, for appellant.

Thomas E. Sandidge, of Owensboro, for appellee.

CLAY Commissioner.

In this action appellant, the wife, was granted an absolute divorce from her husband, appellee; and was awarded: Alimony in the sum of $18,000; the custody of their infant daughter; $75 per month for the child's maintenance; and counsel fees in the amount of $1500. Neither party objects to the custody award nor the amount allowed for the child's maintenance. As is customary in so many of these cases, however, the wife contends the alimony is insufficient and the husband insists it is too much.

The parties have built up a huge record for a case of this sort. Almost every incident in their lives from the date of marriage in 1920 to their separation in 1944 is developed by the testimony of many witnesses. The principal ground for divorce was cruel and inhuman treatment.

The wife's three grounds for reversal are: (1) The Chancellor rejected competent and material evidence; (2) the alimony awarded is inadequate; and (3) the allowed attorney's fee is inadequate. The husband cross-appeals.

The parties married in 1920. The husband was employed as a garage mechanic and his wife soon obtained a bookkeeping job. They had little, if any, estate, and apparently not many prospects. However, the union prospered. The parties saved money, and soon were able to acquire a filling station. From that time on more filling stations were acquired, and the husband became a successful operator in the oil and gasoline business. Later he also entered the lumber business, and carried on various operations throughout Western Kentucky. At the time the affairs of the parties were brought into court the husband had an estate of something between $100,000 and $150,000, and the wife had an estate of from $50,000 to $65,000. The husband and wife and each about 51 years of age.

The parties' principal places of residence and the center of their business operations alternated between Madisonville and Owensboro. They appear to own in those two cities, either independently or jointly, many houses, homes, apartments, and other pieces of real estate. For approximately two years prior to the filing of suit the wife lived in Owensboro, and the husband maintained a residence in Madisonville. However the husband spent a great deal of time in Owensboro, although he had a separate apartment there.

Taking up the first ground of appeal, it appears the Chancellor sustained exceptions to the testimony of witnesses regarding the marital difficulties prior to five years before the commencement of the action. He apparently did so in the light of subsection 3 of section 423, Kentucky Civil Code of Practice, which requires allegation and proof: 'That the cause of divorce occurred or existed within five years next before the commencement of the action.' We do not consider it necessary to pass upon whether or not the Court properly rejected evidence of long past events, since the wife was granted a divorce. This evidence, which has all been carefully considered, throws no light upon the only issues on this appeal.

The important question is whether or not the wife was entitled to recover any alimony, and if so, how much? She attempted to show that from 1925 to the date suit was filed in 1944, her husband was cold, cruel, mean, non-affectionate, and a philanderer. Disregarding events of many years ago, there is substantial evidence that the husband did not in the last few years of their married life show his wife much, if any, affectionate attention. Apparently the two have not lived together as man and wife since 1940, and the record indicates that the husband permitted his business, and perhaps other interests, to take up most, if not all, of his time. We believe, in spite of his protestations, the wife proved cruel and inhuman treatment, and under ordinary circumstances would be entitled to alimony.

We are now confronted with the question as to whether or not she was entitled to alimony in view of...