Henry Wermeling v. Margaret Wermeling

• Decision Date: 10 December 1926
• Citation: 217 Ky. 126
• Parties: Henry Wermeling v. Margaret Wermeling.
• Court: United States State Supreme Court — District of Kentucky

217 Ky. 126

Henry Wermeling v. Margaret Wermeling.

Court of Appeals of Kentucky. Chancery Branch, Second Division.

Decided December 10, 1926.

1. Witnesses — Wife's Testimony Against Husband is Incompetent on Issue of Abandonment, but Competent on that of Cruel Treatment (Civil Code of Practice, Section 606, as Amended by Acts

1912, c. 104). — Wife's testimony against husband is incompetent on issue of abandonment, but competent on issue of cruel and inhuman treatment, under Civil Code of Practice, section 606, as amended by Acts 1912, c. 104.

2. Divorce — Evidence of Treatment Endangering Health or Rendering Cohabitation Intolerable May Warrant Divorce, Without Proof of Personal Violence. — Cruel and inhuman treatment, authorizing divorce, is not confined to acts of personal violence, but may be established by evidence of such treatment in other ways as endangers health, or otherwise brings about situation rendering cohabitation intolerable.

3. Divorce — Divorce for Cruelty Held Sustained by Evidence (Ky. Stats., Section 2121). — Evidence held sufficient to sustain chancellor's judgment granting wife a divorce from bed and board on ground of cruel and inhuman treatment, under Ky. Stats., section 2121.

Appeal from Jefferson Circuit Court.

FRANK A. ROPKE and ARMSTRONG & ROPKE for appellant.

W.T. McNALLY for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER.

Affirming.

Appellant and appellee were married in 1921. They had each been married and divorced previously.

In this action for divorce from bed and board and alimony by the wife she alleges abandonment and cruel and inhuman treatment as grounds. These allegations being put in issue, and the evidence taken, the chancellor adjudged the relief sought by the plaintiff, and allowed her $500.00 in alimony and $50.00 attorney's fee, from which judgment the defendant appeals.

The evidence shows the plaintiff to have been a very nervous and sickly woman; that she was subject at times to violent spells of indigestion, and notwithstanding this fact she was, during their married life, compelled to work because defendant would not furnish her money with which to buy clothes and other necessities. The plaintiff's evidence is that defendant accused his wife during their married life of being a prostitute and sustaining illicit relations with other men; that he was jealous and unduly suspicious of her, and would never permit her to leave home unless he or his mother accompanied her; that he accused his wife of trying to poison him, and that finally in July, 1924, while she was sick in bed he left her at home alone, without money or food, and never returned.

These things are chiefly shown by the testimony of the wife, and it is earnestly insisted that this evidence bears only upon the question of abandonment and is therefore incompetent. It is admitted that under the provisions of the code evidence by the wife bearing upon the charge of cruel and inhuman treatment is...