Hanks v. Hanks

• Court: Kentucky Court of Appeals
• Writing for the Court: TILFORD, Justice.
• Citation: Hanks v. Hanks, 282 Ky. 236, 138 S.W.2d 362 (Ky. Ct. App. 1940)
• Decision Date: 08 March 1940
• Parties: HANKS v. HANKS.

138 S.W.2d 362

282 Ky. 236

HANKS v. HANKS.

Court of Appeals of Kentucky

March 8, 1940

Appeal from Circuit Court, Powell County; W. R. Shackelford, Judge.

Action by Gladys Hanks against Andy Hanks for divorce, wherein a judgment was rendered in favor of the plaintiff, action by Andy Hanks against Gladys Hanks to have certain property restored to him, and action by Andy Hanks against Gladys Hanks to have the judgment of divorce adjudged void and to have property restored to him. All three actions were consolidated. From a judgment dismissing the petition of Andy Hanks to have the judgment of divorce declared void, Andy Hanks appeals.

Judgment reversed in part and affirmed in part.

Beverly P. White and M. C. Redwine, both of Winchester, for appellant.

M. E Strange and John D. Atkinson, both of Stanton, for appellees.

TILFORD Justice.

On September 14, 1935, the appellee instituted in the Powell Circuit Court action No. 1546, in which she prayed for an absolute divorce from appellant on the grounds of drunkenness and cruelty, and on June 24, 1936, a judgment was entered awarding her the relief sought, including the custody of their child, and an attorney's fee of $25. The judgment, however, did not contain an order restoring property obtained through or by reason of marriage, as required by Civil Code of Practice, § 425. On July 17, 1936, appellant, as authorized by this section of the Code, instituted in the same court action No 1560, in which he alleged that appellee during and by reason of her marriage to him had obtained the legal title to certain hotel property in Stanton, Kentucky, for which he had paid the consideration to the grantor, and which he was entitled to have restored to him. On June 7, 1937, before any judgment had been entered in action No. 1560, appellant instituted in the same court action No. 1633, alleging that he had not been served with summons in action No. 1546, had not appeared therein, and had been prevented from defending the same by the fraud of appellee, and for these reasons and because no order of submission and no order directing the proof to be taken orally had been entered by the Court as required by the Code, the judgment of divorce was void. The allegations of the petition in action No. 1560 respecting appellant's ownership of the real estate standing in appellee's name were reiterated, and the prayer was that the judgment of divorce be adjudged void and the property restored to him. On November 16, 1937, the appellee moved the Court to enter nunc pro tunc a judgment alleged to have been "rendered" by the Court in action No. 1560 adjudging appellee the owner of the property in question but requiring her to pay appellant $100, and this motion the Court appears to have sustained, although the record is not clear on this subject. We shall not attempt to recite the various motions made, pleadings filed, and orders entered in attempting to straighten out these much confused proceedings. It is sufficient to say that eventually all three actions were consolidated, the proof taken in actions Nos. 1560 and 1633 considered, and a judgment entered on March 21, 1938, dismissing appellant's petition in action No. 1633, from which judgment an appeal to this Court was prayed and granted.

The claim that appellant was not served with summons in the divorce action appears to have been abandoned, and was unavailing in any event in view of the sheriff's return thereon (Kentucky Statutes, § 3760), but appellant still insists that the judgment rendered is void because of the irregularities in the proceedings. He also insists that the Court was without power to enter nunc pro tunc the judgment complained of in action No. 1560. However, it is apparent that since the Court had jurisdiction of the parties and the subject matter, the orders complained of, no matter how erroneous, were not void, and that this Court is without power to review the judgment granting the divorce (Kentucky Statutes, § 950-1). Moreover, counsel for both parties concede that the real question at issue is the ownership of the hotel property and that the question is properly before this Court for determination. Hence, we will not discuss further the various questions presented by the irregular and unusual procedure employed to raise that issue.

It is established by the testimony that at the time appellant married appellee (April 24, 1923) he was possessed of an estate worth more than the purchase price, $1750, paid for the hotel property, which was conveyed to appellee by William Howell and wife on March 25, 1935, and it is admitted by appellee that at the time of her marriage she was without a home, money, or estate of any kind. However, after her marriage she worked in a factory and kept boarders, and in March, 1926, for $570, purchased 5.7 acres of land adjoining a 44 acre tract, the Knox farm, which was subsequently purchased and conveyed to appellant for $3500. Later this property was sold as one boundary for $4350, and $3500 of the proceeds used in purchasing a farm of 175 acres which was conveyed to appellee in October, 1928. In 1932 this farm was sold at a loss of $1000, and in May, 1933, the Ewen farm of 100 acres was purchased for $2000 and conveyed to appellant and appellee jointly. On March 26, 1935, they sold the 100 acres acquired from Ewen to Flora Whisman for $2000, and it was $1750 of this $2000 that was used in purchasing the hotel property involved in this litigation.

It is conceded that appellant's share of the proceeds of the sale of his father's farm went into the purchase of the Knox farm, and that during the early years of his marriage he frequently earned...