Jones v. Jones

• Decision Date: 11 December 1935
• Citation: 88 S.W.2d 673,261 Ky. 647
• Parties: JONES v. JONES.
• Court: Kentucky Court of Appeals

88 S.W.2d 673

261 Ky. 647

JONES v. JONES.

Court of Appeals of Kentucky

December 11, 1935

Appeal from Circuit Court, Allen County.

Action for divorce by Eulah Jones against George H. Jones. From the decree granting a divorce and alimony and attorney's fees, plaintiff appeals.

Affirmed.

Harper & Goad, and A. J. Oliver, all of Scottsville, and Rodes K Myers and W. R. Gardner, both of Bowling Green, for appellant.

Baird &amp Garnett, of Glasgow, and Rodes & Harlin, of Bowling Green for appellee.

CREAL Commissioner.

Mrs Eulah Jones instituted this action for divorce and alimony against George H. Jones alleging in her petition that for 6 months he had habitually behaved toward her in such cruel and inhuman manner as to indicate a settled aversion to her and to destroy permanently her peace and happiness. She asked for alimony in a lump sum of $6,000, and for $30 per month permanently.

In addition to a traverse of the allegations of the petition, defendant, by answer, set up at great length matters concerning the conduct of plaintiff toward him, the amount of property she had acquired by reason of their marital relation, their respective ages and physical condition, and the value of his estate, as bearing on the question of her right to alimony. He made his answer a counterclaim, and sought divorce on the ground that plaintiff had been guilty of such lewd and lascivious behaviour as proved her to be unchaste.

After proof had been taken, plaintiff offered an amended petition alleging that the grounds alleged for divorce in defendant's answer and counterclaim were false and unfounded and were made without reasonable grounds, and for the willful and malicious purpose of defaming plaintiff's character and reputation and injuring her standing in the community; that she had been damaged thereby in the sum of $2,500; that these unfounded charges in themselves constituted a cause for divorce on the ground of cruel and inhuman treatment; that these grounds, when considered in connection with the inhuman treatment alleged in her petition and proved by her, warranted a substantial increase in the amount that should be awarded her by the court on her original petition. She also set up a number of articles which she owned but left at the home of defendant, and the value of the several articles, and asked that they be restored to her, but if this could not be done that she have judgment for their value.

The chancellor rendered a memorandum opinion which appears in the record, and entered judgment decreeing plaintiff an absolute divorce and awarding her alimony in the sum of $250. It was further adjudged that the respective parties have and retain title to any and all property in their possession; that plaintiff recover all her costs, including attorney's fees of $250. It was further adjudged that the amended petition seeking to recover certain personal property which was marked "filed" by the clerk should not be filed in the action, but should be made a part of the record for the purpose of appeal only.

Plaintiff prayed and is prosecuting an appeal from so much of the judgment as refused to allow her the full amount of alimony prayed by her in her petition, and refusing to allow her the property mentioned in her amended petition.

Since the question of alimony and property rights is all that is or could be involved on appeal, it will be unnecessary for us to detail or review the evidence, except so far as it may have a bearing on that phase of the case.

The parties were married in August 1931, being the second matrimonial venture of each of them. Appellant left the home of her husband in Barren county in the early part of August 1934, taking up residence in Allen county, where she immediately filed this suit for divorce. At the time of their marriage, appellant was about 27, and appellee 41 years her senior; so at the time of the divorce their ages were about 30 and 71, respectively. Appellant was divorced from her former husband and retained the custody of their only child, a son now past 11 years of age. The evidence discloses that prior to her second marriage appellant had no estate and because of lack of education, experience, or training she was forced to engage in manual labor as the only means of acquiring a livelihood for herself and son. It is shown that for a time she was engaged in husking corn in Illinois. When she went to the home of appellee she carried along all her property consisting of some personal effects wrapped in a sheet, and a sow and pigs which appellee had given her. When she left his home, she took away two truck loads of furniture and personal effects, some cattle,...