Irwin v. Irwin

• Decision Date: 11 February 1899
• Citation: 49 S.W. 432,105 Ky. 632
• Parties: IRWIN v. IRWIN. [1]
• Court: Kentucky Court of Appeals

49 S.W. 432

105 Ky. 632

IRWIN v. IRWIN. ^[1]

Court of Appeals of Kentucky.

February 11, 1899

Appeal from circuit court, Jefferson county, common pleas division.

"To be officially reported."

Action by Carrie B. Irwin against Joseph W. Irwin for divorce and alimony. Judgment granting divorce and alimony, and awarding one of two children to plaintiff and the other to defendant and plaintiff appeals, defendant prosecuting a cross appeal. Affirmed on original appeal, and reversed on cross appeal.

Arthur M. Rutledge and Bennett H. Young, for appellant.

Kohn Baird & Spindle and Wm. H. Holt, for appellee.

BURNAM J.

This is the second appeal to this court from judgments of the chancellor herein. The opinion on the former appeal is reported in 96 Ky. 320, 28 S.W. 664, and 30 S.W. 417. By agreement between the parties, the evidence read upon the trial of the former action was considered on the trial in which the judgment appealed from was rendered. The record of that proceeding shows that appellant left her husband's house on July 10, 1892, in company with her brother, Creel Brown, taking with her her two infant children, and that soon thereafter she instituted a suit against appellee, in which she sought absolute divorce, alimony, and the custody of her children, on the ground of cruelty and settled aversion,--the trial in that case resulting in a judgment giving her divorce from bed and board, and the custody of her two children allowing her $125 a month alimony, and making appellee responsible for all costs, including $1,500 fees to her attorneys; and upon appeal of Joseph W. Irwin in that case the judgment of the chancellor was affirmed in toto. Since that judgment, appellant has had custody of the two children, and appellee, in compliance with the order of court, has paid all the costs and the alimony adjudged; the case remaining upon the docket of the lower court. On July 10, 1897, appellant filed in the action a supplemental petition, in which she sought absolute divorce on the ground authorized by section 2117 of the Kentucky Statutes, viz. "living apart without any co-habitation for five consecutive years next before the application," and asked that she be permitted to retain custody of the children, and that $25,000 be allowed to her as permanent alimony. Appellee, in his answer and cross petition, sought divorce upon the same ground, asked that the custody of the children be awarded him, and denied appellant's right to alimony. Upon the trial the court gave judgment for absolute divorce, awarded the custody of the daughter to appellant, with an allowance of $200 per annum for her support, to be paid quarterly by appellee, and allowed appellant $7,500 as permanent alimony, and gave to appellee the custody of the son, and made provision that each child should be permitted to visit that parent who did not have charge of him or her at suitable times; and we are asked by both parties to review that judgment, and correct it in accordance with the contention of each.

It is the contention of appellee that the ground for divorce relied on in the supplemental petition of appellant is a distinct cause of action, and could not be properly set up by way of amendment in the pending action; and, in addition to this objection, it is insisted that it was prematurely filed; that the five-years separation did not expire until the 11th day of July, 1897, and that, therefore, the judgment of divorce in favor of appellant was erroneous, and should have gone in favor of appellee on his cross petition.

It was held by this court in Chiles v. Smith's Heirs, 13 B. Mon. 460, "that the rule in regard to the computation of time is that, when the computation is to be made from an act done, the day on which the act was done must be included, because, since there is no fraction in a day, the act relates to the first moment of the day on which it was done; but when the computation is to be made from the day itself, and not from the act done, there the day in which the act was done must be excluded." And the rule announced in that case has since been adhered to in decisions of this court. See Batman v. Megowan, 1 Metc. 533; Mallory v. Hiles, 4 Metc. 53; Long v. Hughes, 1 Duv. 387; White v. Crutcher, 1 Bush, 472; Wood v. Com., 11 Bush, 220; Handley v. Cunningham's Trustee, 12 Bush, 402; Mooar v. Bank, 80 Ky. 305; and Com. v. Shelton, 99 Ky. 120, 35 S.W. 128, etc.

But even if we concede the contention of appellee, that the ground of divorce relied on in the supplemental petition is "a status," and did not begin to exist until the first whole day of its existence, to wit, the 11th day of July, 1892, and that the supplemental petition was prematurely filed, it does not seem to us that this is a question of any importance on this appeal, as section 950, Ky. St., provides that "no appeal shall be taken to the court of appeals to reverse a judgment granting a divorce." The judgment of the chancellor on this question is a finality, and cannot be reviewed here. See Whitney v. Whitney, 7 Bush, 520; Evans v. Evans, 93 Ky. 510, 20 S.W. 605; and Brown v. Brown, 16 Ky. Law Rep. 317. And it was held in Barrett v. Barrett, 11 Ky. Law Rep. 287, and in Ross v. Ross, Id. 306, that this court would not reverse a judgment of divorce, even though the court erred in dismissing the husband's petition, and the effect of the judgment in favor of the wife was to free him from the bonds of matrimony just as effectually as if his petition had been sustained. The question as to which of the two parties procured judgment does not in any wise affect the wife's right to alimony, under the statute. It has been held by this court "that this right is not confined to cases in which the divorce is obtained in a suit instituted by the wife. *** The statute was intended to apply to all cases where the separation occurs without the wife's fault, and embraces cases where she is entitled to alimony, although divorce may have been obtained by the husband on the ground that the parties had lived apart five years." See Davis v. Davis, 86 Ky. 32, 4 S.W. 822; Lacey v. Lacey, 95 Ky. 110, 23 S.W. 673, and Newsome v. Newsome, 95 Ky. 383, 25 S.W. 878.

Although the facts relied on in the supplemental petition are not the same grounds for divorce relied on in the original petition yet, as they are additional grounds for the same relief, we see no reason why they should not be set up in the pending proceeding as well as in an original action; and this might very appropriately be done, as in the pending action the exact status of the parties had been determined. Since the original judgment found that appellant was without fault, it must be presumed that this fact continued to exist throughout the five-years separation; and the burden...