Grove v. Grove
| Decision Date | 24 March 1931 |
| Citation | 239 Ky. 32,39 S.W.2d 193 |
| Parties | GROVE v. GROVE. |
| Court | Kentucky Court of Appeals |
Rehearing Denied June 19, 1931.
Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.
Suit for alimony and divorce by Annette Grove against Sylvester Grove, in which Sylvester Grove filed a counterclaim for divorce. From the judgment, plaintiff appeals, and defendant cross-appeals.
Reversed on appeal with direction, and affirmed upon cross-appeal.
Kendrick R. Lewis and Richard B. Crawford, both of Louisville, for appellant.
Walter S. Lapp, of Louisville, for appellee.
This record contains the unhappy history of a misadventure in matrimony. The parties were married in New York about twenty years ago and immediately thereafter located in Louisville where they have since lived. They have a son about nineteen years old, named for his father. Mr. Grove engaged in the moving picture business and has been successful. In 1927 serious trouble began to brew between him and his wife which culminated in a final separation. Several temporary separations had preceded the final one. In August, 1928, Mrs Grove instituted an action for alimony and divorce upon the grounds of cruel and inhuman treatment, and such cruel beating and injury, or attempt at injury, as indicated an outrageous temper in the husband and probable danger to the wife from remaining with him. The husband filed a counterclaim for divorce upon the ground that the wife had been guilty of such lewd and lascivious conduct with a man named Norman Hall as proved her to be unchaste. Later the counterclaim was amplified by amendment so as to charge the wife with improper conduct with an unknown man. In an affidavit filed the husband made an accusation of adultery against his wife.
The testimony took a wide range and many trivial circumstances were delineated. Judge Allen, in an opinion prepared with his usual felicity, reviewed the entire record, reaching the conclusion that neither party was entitled to relief. Although admitting that the husband had been guilty of striking and abusing his wife, doubt was expressed whether the misconduct had continued for a sufficient period, or was carried to such an extent, as to indicate a settled aversion to his wife. But he based his refusal of relief to the wife upon a finding that she was at fault because of her indiscretions, and because of her disobedience of her husband's wishes respecting her association with Norman Hall. Mrs. Grove has prosecuted an appeal and Mr. Grove has taken a cross-appeal.
It would be useless as well as burdensome to cite all the details of this domestic debacle, and we shall state merely the ultimate facts and conclusions.
It was testified by the wife that in the fall of 1927, Mr. Grove began serious mistreatment, such as striking and sometimes injuring her, pulling her hair, falsely accusing her, severely scolding her, driving her away, and threatening greater injury. She further complains that the cruel charges made by the defendant in pleading and preparing his defense were groundless and calculated to destroy her good name, and that such charges, made without evidence, were bolstered up with the perjured testimony of criminals and friends of criminals. Standing alone these facts plainly constituted such cruelty as entitled the plaintiff to a divorce and alimony. Riley v. Riley, 233 Ky. 134, 25 S.W.2d 59, 61; Kahr v. Kahr, 199 Ky. 434, 251 S.W. 199; Ramey v. Ramey, 224 Ky. 398, 6 S.W.2d 470; McGaughey v. McGaughey, 231 Ky. 209, 21 S.W.2d 245; Miller v. Miller, 229 Ky. 436, 17 S.W.2d 412; Jones v. Jones, 205 Ky. 538, 266 S.W. 48.
The chancellor refused relief to plaintiff, however, because she was not without fault, since she had given Mr. Grove such provocation as mitigated, if it did not excuse, his violence. The conclusion that Mrs. Grove had contributed to the collapse of the marital relationship was deemed adequate to preclude her from obtaining a divorce or alimony. The correctness of that conclusion involves a consideration of the conduct of Mrs. Grove. It consists of several episodes, and is interlaced with the conduct of her husband.
Three or four years prior to the separation, a youth named Norman Hall became acquainted with the Grove family, and during that period of time had been an intimate associate of Mr. and Mrs. Grove, and of their son. The whole testimony, except in two particulars, relates to the association of Mrs. Grove with this youth. She danced with him at the Inn Logola. A witness testified that there was something suggestive about the manner of dancing. Aside from the vague and unsatisfactory nature of the testimony of that particular witness, it was clearly proven that Mrs. Grove, in the presence of friends, and some members of her family, merely danced in a decent and respectable style with the young man. Mr. Grove became very bitter toward the young man, and described him as a "soda water sheik." Judge Allen observed that the record exhibited Hall as an idler, probably as a parasite, but he did not find from the evidence that there was any conduct on the part of Mrs. Grove that could be called lewd or lascivious, and certainly nothing that proved her to be unchaste. If Hall merely performed the function of a "gigolo" for Mrs. Grove at the dances, no reflection is to be cast upon the character of a woman who utilizes such services, however much it may impugn her taste, or whatever may be thought of a man who engages in such occupation.
On one occasion, Mr. Grove came to his apartment at the hotel and the room door was locked. It was opened upon request, and Mrs. Grove and Hall were found in the room. Mr. Grove now urges that importance should be ascribed to the circumstance but when the facts are stated it amounts to nothing. Hall and another young man named Young were at the apartment with Mrs. Grove when a certain musical instrument was desired. Young went to get it, and during his brief absence, Mr. Grove appeared upon the scene. Young soon returned with the musical instrument, and Mr. Grove thought nothing of the matter, leaving the young men there with his wife. After the action was filed, Grove testified about the incident and referred to the fact that his confidence in his wife was unshaken. Indeed, he did not seek to attribute sinister meaning to the incidents now elaborated until he was unable to negotiate a settlement of the case. During the taking of his testimony, he said that he had told Mrs. Grove's attorney that he believed his wife was a pure woman; "that she had never done anything wrong;" that he wanted to make some sort of settlement, and disagreement on that is what started this fight. A short time after the room episode, Mr. Grove came to the hotel at night and found Mrs. Grove and the young man sitting on the mezzanine floor of the hotel. He struck Mrs. Grove violently, but did nothing to the boy, except to threaten him. He went to his room and remained there, but permitted Mrs. Grove to sit up all night in the lobby of the hotel. She then left him and went with her son to the home of a half-sister of Mr. Grove, where she remained about a week. While she was there Hall called upon two occasions. The evidence discloses nothing except the inference that might arise from the fact of the calls. A remark overheard by the half-sister indicates that Mrs. Grove contemplated a suit for divorce, and the matter of evidence available to her was under discussion. But the Groves soon became reconciled, and continued to live at the hotel. About a month later Mrs. Grove drove to West Baden with a young lady and Hall. There was nothing wrong in connection with the episode, except that Mrs. Grove was with Hall and failed to disclose to Mr. Grove that Hall had been on the trip. But in view of the critical attitude and violent outbursts of temper of Mr. Grove, it is not difficult to understand why Mrs. Grove was not as candid with him as she should have been. During an absence of Mr. Grove, Mrs. Grove had a small party at their cottage in the country, which was attended by Hall. There was music and dancing, and the party ended at a proper hour. A witness testified that Mrs. Grove told her not to mention the party to Mr. Grove. Mrs. Grove denied making the request, but assuming that she did, it may be reconciled with perfect propriety on the part of Mrs. Grove. Mr. Grove had then become estranged from Hall and had punished Mrs. Grove on at least two occasions. Hall was not invited there by Mrs. Grove, but by one of the young lady guests at the party, and Mrs. Grove might have thought it better to conceal the facts than to explain them to Mr. Grove, who did not hesitate to question her veracity. On one occasion Hall called Grove's neighbor at 3 a. m. asking her to call Mrs. Grove to the telephone. Mrs. Grove went to the telephone, but did nothing for Hall. She said Hall had been involved in some accident and was at the City Hospital. Hall said he telephoned for Mr. Grove to come but the neighbor said he asked for Mrs. Grove. Mr. Grove says his wife lied to him about it, but she says she reported the facts. Finally, one afternoon while Hall was sitting on the porch on the Grove cottage drinking a beverage and reading a newspaper, Grove came home unexpectedly and Hall hid under a bed. He says he got scared and lost his head. Grove says he looked under every bed but that of his son, which happened to be the one where Hall was hiding. Grove says he had told Hall he would break his neck if he caught him with his wife again, and Hall said Grove slammed a door like he was angry. Mrs. Grove was with her son at the time, swimming in the river, while numerous neighbors were watching them. One other incident should be noted. Mrs. Grove went with a young...
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