Kelly v. Kelly
| Decision Date | 04 February 1919 |
| Citation | 183 Ky. 172 |
| Parties | Kelly v. Kelly. |
| Court | Kentucky Court of Appeals |
Appeal from Boyd Circuit Court.
B. O. BECKER, GEO. B. MARTIN and JOHN L. SMITH for appellant.
JOHN F. HAGER and JOHN W. WOODS for appellee.
The parties to this action were reared in the city of Ironton, Ohio, where they were married, on June 12, 1900. The husband, having employment, in Ashland, Ky., they removed to that city to live, where in the month of March, 1903, twin children were born to them. These children are boys, and are now fifteen years of age, and have been, since they were ten years of age, attendants at a military school, near Cincinnati, Ohio, except during the usual vacations, at such schools. When the parties were first married, they resided, for some time, in a home, which was owned by the husband's mother, in Ironton, and after they came to Ashland, the mother of the husband sold the house and gave him the proceeds, in the way of assisting in the purchase of a dwelling house, in Ashland, and afterwards, gave him two thousand dollars, with which to purchase additional ground near the house, and purchased and lived in a home adjoining the home of appellant and appellee. The father of the husband died, a year or two before he and his wife separated and the husband received a considerable amount of property, under the will of his father.
The residence was in a neighborhood, composed of people of eminent respectability, and well circumstanced financially, and several were wealthy. Several were of that class, whose health and comfort made necessary their periodical attendance at watering places and pleasure resorts, where the rates were high, and golf courses a necessity, and now and then a visit to a foreign country, to vary the monotony of life.
The evidence, proves, that the husband was a good husband and father; that he made ample provisions for his wife and two sons in accordance with their station in life, in the circle of society, in which they moved. He was sober and industrious, and attentive to his business affairs, and of unchallenged moral character. The wife was of unimpeachable moral character; a kind and affectionate mother; an excellent housekeeper; and possessed the very commendable trait of remaining more closely at her home and attending more strictly to her duties as a wife and mother, than any other woman in her social circle, in her neighborhood. The first appearance, in the record of any friction between the husband and wife was when in the year, 1912, the husband appeared at the home of the wife's father, in Birmingham, Ala., and represented to his father-in-law, that his wife did not treat his friends right, and that they were not agreeing, and that some change would have to occur to enable them to live agreeably. The father-in-law, immediately, addressed a letter to his daughter, in which he counseled her to live agreeably with her husband, and advised, that they, mutually, forbear with each other. Afterwards, the father-in-law, came, twice, at the request of his son-in-law, and he and his son-in-law, and his daughter discussed the causes of the differences, between them. The husband claimed, that the wife did not treat his friends in a proper way, while the wife complained, that her husband's mother intermeddled with her affairs, and her husband, continuously, neglected her, by remaining out to a late hour, at night, and left her in the house, alone. Every witness, who testified, except certain ones, which will hereafter be mentioned, deposed, that so far as they ever had opportunity to see or know, the appellant and appellee treated each other kindly, and no friction was observable between them. On the 26th day of June, 1913, the husband left the house, taking with him, certain of his personal belongings, and one of his sons, and, has since that time, persistently, refused to return to his wife, or to become reconciled to her. On the same day, the wife, in great distress, called upon her mother-in-law and interceded with her to try to influence her husband to return to her, but the mother-in-law declined to do so. She frequently, called upon him, at the house, in which he stayed, after that time, and on one occasion, in the presence of others, requested him to return. She sought the assistance of the minister, who officiated at the marriage rites between them, and of the archdeacon of the diocese, in which the church of which she was a member is situated, to effect a reconciliation with her husband and to induce him to again live with her, as her husband. These reverend gentlemen, after several requests to the husband, by letters, which he ignored, secured a meeting between the husband and wife, for the purpose of trying to induce him to again resume marital relations with his wife. He appeared at the meeting, accompanied by his attorneys, but, refused to discuss living with his wife any more, but proposed, that she obtain a divorce, and that he would settle certain sums upon her, in the way of alimony. On this occasion, he said to his wife, that her treatment of his mother, had "killed" his love for her. In May, 1916, he instituted a suit for divorce from his wife, in which he charged her with having abandoned him, but this, he dismissed, in July following. The wife, as it appears, never ceased to intercede with her husband to become reconciled to her, and in this suit, again besought him to return to her.
This suit was instituted by the wife, in December, 1916, to require the husband to pay her the sum of $50,000.00 and for the use of the dwelling during her lifetime, as alimony. The court adjudged, that she recover of her husband, the sum of $33,500.00, her costs, and attorneys' fees, and adjudged her the right to use and occupy the dwelling house, under certain restrictions. The dwelling house is agreed to be of the value of $12,500.00. The husband was required to maintain and educate the boys, except at such time, as they should be with their mother, when she should be at the expense of their board. There is no complaint made of the decree so far as it relates to the custody, education and maintenance of the boys. The husband has appealed from the judgment, and insists, that the court was in error, in adjudging to the wife, any alimony; while the wife has prayed a cross-appeal from the judgment and insists, that the alimony allowed, was not in such sum, as she is entitled to have.
(a) The record discloses, that there is no hope for a reconciliation of these litigants; that the wife is anxious to resume marital relations with the husband, but, he has a fixed aversion to the wife, and fixed determination to never live with her, again; and has removed from Ashland to the city of New York. It is admitted, that he separated himself from his wife and refused to return to or live with her or permit her to live with him, at any place. He denies, that he left his wife without excuse or fault upon her part, and alleges as his reason for so doing that she did not control her temper, but, continuously, for two years, nagged, and scolded him, gave way to fits of temper, insulted his friends, and humiliated and embarrassed him, and utterly destroyed his happiness, while with her, and that he had no other means of escaping the troubles, except to leave her. The only evidence, which tends to prove, that she ever quarreled or scolded him, is that of a negro man, who was for several months, a servant in the house, and he states that she, frequently, quarreled at her husband, but, he does not state anything that she ever said, or any subject, about which a quarrel was had. This witness is a strong partisan of the husband, as he claims, that the wife insulted him, at some time since the separation, by a refusal to allow him to serve her with punch, at a social function, and, accompanied her refusal, by calling him a "stinking" negro. Another servant, who was in the house at the same time, the one mentioned above was serving, deposes, that she never "heard a fuss between them." The witness, who claims to have received the insult, is contradicted by another, who was present, when the alleged insult was given, and who deposes, that it did not occur. The mother of the husband deposes, that on the day of the separation, when the wife, weeping, besought her to use her influence to restore her husband to her, she said, she had treated her husband badly, because she was jealous of his regard for his mother. A lady, at whose home, the husband lived, after the separation, deposed that on one occasion, the wife, when visiting the house, said that she did not blame her husband for leaving her, because she had been a "devil" to him for a year. The evidence, further shows, that the wife was of a nervous temperament and suffered from a nervous affliction, and within a few days, after the separation, was confined for several weeks, to her bed, from neuresthenia, or nervous prostration, and for a portion of the time, was in an unconscious condition, and a few months later, suffered from a similar attack. The insults to friends of the husband, complained of, are as follows: In the year 1907, six years preceding the separation the husband was...
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