Keith v. Keith

• Decision Date: 16 November 1937
• Citation: 110 S.W.2d 424,270 Ky. 655
• Parties: KEITH v. KEITH.
• Court: Kentucky Court of Appeals

110 S.W.2d 424

270 Ky. 655

KEITH v. KEITH.

Court of Appeals of Kentucky

November 16, 1937

Appeal from Circuit Court, Jefferson County, Chancery Branch, First and Second Divisions.

Action for divorce by Julia Keith against Aaron Q. Keith, wherein a judgment was entered granting plaintiff a divorce from defendant and defendant was ordered to pay plaintiff $90 per month in accordance with an agreement. From a judgment overuling defendant's motion to readjust and reduce the amount of payments, defendant appeals.

Reversed and remanded, with directions.

Edward P. Humphrey, and Marvin H. Taylor, both of Louisville, for appellant.

George J. Mayer, of Louisville, for appellee.

RATLIFF Chief Justice.

By a judgment of the Jefferson circuit court entered in August 1932, appellant and appellee were divorced (upon application of appellee) and the care and custody of their four infant children was awarded to appellee.

By agreement of the parties, which was incorporated in and made a part of the judgment, it was agreed that appellant will pay appellee $90 per month each and every month, payable semimonthly, so long as appellant is earning $190 per month but in the event his wages are reduced the amount to be paid to appellee will be reduced proportionately. The appellee was to have all the household furniture and fixtures except a sewing machine, and it was further agreed that appellee will take care and provide for the children as well as possible.

In March, 1936, appellant entered the following motion:

"Comes the defendant, Aaron Q. Keith, and moves the court to re-adjust and reduce the amount which he is now paying to the plaintiff, Julia Keith, his former wife, under judgment entered in this action on August 17, 1932, for the maintenance of herself and children, and to separate the amounts to be paid for the maintenance of the wife and each of the children respectively and to relieve the defendant of the payment of any maintenance for any child who is now over twenty-one years of age and others as they become twenty-one years of age or self-sustaining, and files in support hereof his own affidavit."

The affidavit of appellant filed with the motion is as follows:

"The affiant, Aaron Q. Keith, on oath states that the court in this action on August 17, 1932, entered judgment granting the plaintiff, Julia Keith, his wife, a divorce from the affiant, the defendant, from the bonds of matrimony, and further ordered that the defendant pay to the plaintiff the sum of Ninety Dollars ($90.00) per month under the conditions as they then existed for the maintenance of his said wife and their four children, to-wit: Robert, born February 9, 1913, aged at the present time twenty-three years; William, born February 11, 1917, aged at the present time nineteen years; Jack, born January 23, 1921 aged at the present time fifteen years; and Donald, born May 24, 1922, aged at the present time thirteen years.

"Affiant further states that there were born of the marriage between himself and said wife the above children and also another child, Dorothy, who was born January 30, 1915, aged at the present time twenty-one years, and who prior to the entry of the judgment in this divorce action was married to C. D. Mathias, from whom she has since been divorced, and that said Dorothy has moved away from Louisville and is maintaining herself. The first named child, Robert, is past twenty-one years of age and is self-supporting, and William, the second named child, is now nineteen years of age, is out of school and is working from time to time and earning wages, though he has no regular occupation."

The case was referred to the court's commissioner, and in May, 1936, the commissioner filed his report in which he recommended to the court that the motion be overruled without prejudice, upon the ground that it was a consent or agreed judgment, constituting an agreement between the parties without any reservation in the agreement or judgment authorizing a reconsideration of the matter by the court, and to support his recommendation he cited the cases of Keach v. Keach, 217 Ky. 723, 290 S.W. 708; Smith v. Smith, 236 Ky. 693, 695, 33 S.W.(2d) 651; Renick v. Renick, 247 Ky. 628, 637, 57 S.W.(2d) 663; and Hargis v. Hargis, 252 Ky. 198, 66 S.W.(2d) 59.

Appellant filed exceptions to the commissioner's report, and in November, 1936, the court entered the following order:

"At a Court held on the 24th day of November, 1936.

"This action coming on to be heard on the exception of the defendant, to commissioner's report, filed herein on May 29th, 1936, and the Court being advised, ordered that said exception be and is hereby overruled.

"To which defendant by counsel objects and excepts.

"Further ordered by the Court that the report of the commissioner is hereby approved and confirmed.

"Therefore, it is ordered that the motion of the defendant, to re-adjust and reduce the amount of maintenance, be and is hereby overruled without prejudice, at this time.

"To all of which the defendant excepts."

In December, 1936, the court entered an order granting appellant an appeal from the order and judgment rendered in November, 1936. But in the original statement of appeal it is recited that the judgment appealed from was rendered August 17, 1932, as appears on page 8 of transcript of the record. Later an amended statement of appeal was filed, correcting the error in the original statement, in which amended statement it is recited that the judgment appealed from was entered the 24th day of November, 1936, which appears on pages 17 and 18 of the record.

It is insisted for appellee that the appeal should be dismissed, "because (1) the judgment appealed from is a consent judgment, and is not appealable, (2) the appeal was not prosecuted within two years, and is barred by limitation, and (3) if the appeal is from the order of November 24th, 1936, (a) such an order is not appealable, and (b) if it is, the amount involved is not sufficient to give jurisdiction to this court." We will discuss these points in reverse order named.

(3b) There is no merit in appellee's contention that the amount involved is not sufficient to give the court jurisdiction. In the majority of cases where monthly allowances are made for the wife or children they are less than $200 per month, but this court has never considered a single monthly allowance as the sole amount in controversy in determining the jurisdiction of the court on appeal. If this were true, no appeal could be taken from such monthly allowances except in cases where they are for as much as $200, and where they are less than $200 either party would be without the right of appeal, although the total sum paid over a period of months or years might amount to many hundreds or many thousands of dollars. It is stipulated in the record of the present case that since the entry of the judgment in 1932, appellant has paid appellee the sum of $4175. In the case of Bush v. Bush, 245 Ky. 172, 53 S.W.(2d) 352 the allowance in controversy was $20 per week. In White v. White, 245 Ky. 618, 54 S.W.(2d) 24,...