Howard v. Howard
| Decision Date | 14 May 1948 |
| Citation | 211 S.W.2d 412,307 Ky. 452 |
| Parties | HOWARD v. HOWARD. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Leslie County; S. M. Ward, Judge.
Action for divorce by Otis Howard against Vina Howard who filed a counterclaim. The plaintiff was granted a divorce, but the defendant was given the custody of the children. From an order modifying original decree and granting the plaintiff the custody of the elder child and directing that the plaintiff pay the defendant $10 per month for maintenance of the younger child the defendant appeals.
Order reversed with directions to enter an order in conformity with opinion.
C. W. Hoskins, of Hyden, for appellant.
Will C Hoskins, of Hyden, and Wm. Dixon, of Wooton, for appellee.
This case is one of the more or less regrettable and frequent ones with which we have to deal, it being a contest over which parent shall have the custody of a 15 months old male child following the separation of its parents.
The original action was one filed in the Leslie circuit court by appellee, the husband, against the appellant, his wife, on May 19, 1945, in which appellee sought an absolute divorce from his wife on the alleged ground of cruel and inhuman treatment for the past six months so as to destroy his peace and happiness. The wife denied the alleged grounds of divorce and counterclaimed by alleging the same ground as to him, but she did not ask for a divorce, but only for the custody of their two children, the youngest being five months old and the elder 15 months old.
Something over 100 pages of testimony was taken pro and con and heard at the trial of the action, and upon submission the then Judge of the Leslie circuit court, the Honorable Roy Helm granted the husband a divorce, but gave his wife custody of each of the two children. After that Judge Helm was defeated for the office of circuit judge of the district of which Leslie County is a part by Hon. S. M. Ward. The divorce was granted by Judge Helm in the November term, 1945, of the Leslie circuit court. The husband was granted an appeal from that part of the judgment giving his wife the custody of the two children, but he did not perfect it within time and this court upon motion of the wife dismissed it.
At the March term, 1946, of the court the husband entered a motion to modify the divorce judgment by granting to him the custody of the two children, but that motion appears to have been only orally made and the record does not disclose upon what ground he based it. However, Judge Ward overruled it. In the following June term of the same year appellee made a like motion in vacation for the same relief, but it also was oral and the record does not disclose the basis thereof. The court, however, dismissed it. During the August term of that year another similar motion was made by the husband seeking the same relief which the court again overruled, but modified the original judgment entered, by Judge Helm allowing the husband 'to have custody of both children the last week of each month.'
With unyielding tenacity the husband again moved the court in vacation at Hazard, Kentucky, for a modification of the judgment so as to give to him the custody of the elder child, Wayne Howard. That motion was sustained and the judgment modified as requested, and directed that the husband pay to the wife $10 per month for the maintenance of the younger five-month old child. From that judgment appellant prosecutes this appeal, insisting that she is entitled to the custody of both children and to be allowed an additional $10 per month for the maintenance of the elder one.
The only evidence in the record upon the hearing of the various recited motions by the husband--if indeed any at all were heard--is that taken and introduced on the trial of the divorce action, consisting as we have said of about 100 pages of the record. The substance of the salient facts are: That for the first two months of the marriage of the litigants they resided with the parents of the wife, after which they took up their abode with the parents of the husband. At that time the father of the husband was dead or divorded from his wife, Siller Howard. In the beginning of 1943 one Arnold Muncy appears to have taken up his abode in the home of the widow Howard and they began a career of cohabitation and living together which lasted until about the time of the separation of appellant and appellee. It appears to have been circulated in the community concerning their relationship and the two journeyed to the city of Harlan on September 4, 1945, where they procured a marriage license from the County Clerk of that county and were married by F. M. Meadows, the County Judge of the county, on that day.
In giving her deposition Mrs. Muncy, nee Howard, appellee's mother, testified that she and Muncy was married in 1943. She was then asked if she had the marriage certificate when she answered in the affirmative and counsel asked her to produce it, which she did, when it was discovered that the figure '5' of the year of their actual marriage had been so altered and changed as to give the appearance of the figure '3' which would correspond with the date at which the relationship between her and Muncy began. Counsel then asked her to file this certificate as an exhibit with her deposition which she peremptorily refused to do.
After entering the home of appellee's mother the appellant soon became dissatisfied with the treatment she received at the hands of apparently all of the members of that family. They were more or less vitriolic toward her and she began an effort to persuade her husband to acquire a home for themselves and the two infant children. Eventually he was tendered by one Roark, a neighbor, a vacant tenant house on a nearby tract of land that he (Roark) owned, but only as a tenant at will. It appears from the evidence that it was far from being equipped for a suitable home, and the wife objected to it and still insisted that her husband provide better living quarters which he never did. The wife then left the Muncy residence taking with her her younger child, leaving the elder child temporarily in the home of the Muncy's. For some cause, not disclosed, she failed to get permanent possession of the elder child, and he appears to have remained in the custody of Mrs. Muncy, from which it appears that this litigation in reality is mainly between the appellant and her mother-in-law.
Mrs Muncy gave two depositions at the taking of the first of...
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