Hulett v. Hulett

• Decision Date: 19 September 1882
• Citation: 4 Ky.L.Rptr. 193,80 Ky. 364
• Parties: Hulett v. Hulett.
• Court: Kentucky Court of Appeals

80 Ky. 364

4 Ky.L.Rptr. 193

Hulett v. Hulett.

Court of Appeals of Kentucky.

September 19, 1882

1. Where the husband treats the wife with cruelty, and compels her to leave him, she has a right to an independent action against him for alimony without regard to a divorce. She is not bound to connect the one with the other.

2. The provision of the Code in regard to residence does not apply to suits for alimony.

APPEAL FROM LAWRENCE CIRCUIT COURT.

W. M FULKERSON FOR APPELLANT.

1. There is no prescribed bar or limit to an action for alimony. The wife is not required by the Civil Code to reside one year in the county where the suit is brought in order to obtain alimony.

2. Neither time nor residence is any ingredient in the case. (Civil Code, secs. 420, 424, subsecs. 1, 2, and 3.)

3. The court erred in refusing the amendment offered charging adultery. (Honore v. Colmesnil, 1 J. J. Mar., 508; Code of Practice, chap. 8, secs. 134, 135, 136; Kavanaugh v Thacker, 2 Dana, 137; 4 Ib., 25; Butler v Butler, 4 Litt., 201; Logan v. Logan, 2 B. Mon., 148; 7 Ib., 428; Gen. Stat., chap. 26, sec. 28; 18 B. Mon 517; 2 Met., 414; Code of Prac., sec. 37, subsec. 2.)

A. DUVALL FOR APPELLEE.

1. At the time of the institution of her suit the appellant had not been a continuous resident of the state for twelve months, as required by the statute.

2. The statute embraces suits for divorce from bed and board.

3. The testimony was insufficient to authorize a judgment for alimony.

OPINION

PRYOR JUDGE:

This action was instituted by the appellant and her prochein amy against her husband for a divorce a mensa et thoro and for alimony.

During the progress of the trial an amended petition was offered asking a divorce a vinculo matrimonii. The offer to file the amendment was refused, and the entire action dismissed on the ground that, at the time of its institution, and from appellant's own admission, she had not been a continuous resident of the state for twelve months.

The statute provides " that no such action shall be brought by one who has not been a continuous resident of this state for a year next before its institution."

It is urged that this does not apply to an action for a divorce from bed and board, and that in such an action the question as to residence has no application. The effect of a judgment of divorce a mensa et thoro is to deprive the husband of all control of the wife, and, as to property thereafter acquired, operates upon the personal rights of the parties as a divorce a vinculo matrimonii, except that it does not bar existing dower or distributive right. (General Statutes, page 326.)

The chapter authorizing a divorce makes no distinction as to the character of divorce granted, and while the reason for requiring the residence in the one case may be stronger than in the other, when the effect of the judgment is to determine the right of property, and to recognize the separation for the time being as right and proper, placing the wife beyond the husband's control, we are not disposed by judicial construction to adjudge that the statute in regard to residence was intended to apply only to cases where the separation is made final by the judgment. It is again urged, that while the action may have been prematurely brought, it is also an action for alimony, and the facts showing a separation resulting from the fault of the husband, the chancellor had the power to require the payment of such a sum or sums of money as was necessary for the support of the wife. If the claim for alimony is not incidental merely to an action for a divorce, but can be presented as an independent action, then the chancellor erred in dismissing the petition.

The Code of Practice, chapter 2, section 420, provides that " an action for alimony or divorce shall be in equity; " and in section 423, the plaintiff to obtain a...