Kenmont Coal Co. v. Fisher

• Decision Date: 19 June 1953
• Citation: 259 S.W.2d 480
• Parties: KENMONT COAL CO. v. FISHER et al.
• Court: United States State Supreme Court — District of Kentucky

Page 480

259 S.W.2d 480

KENMONT COAL CO. v. FISHER et al.

Court of Appeals of Kentucky.

June 19, 1953.

Willis W. Reeves, Hazard, for appellant.

Duff Arnett, Hazard, for appellees.

CAMMACK, Justice.

This is an appeal from a judgment of the Leslie Circuit Court dismissing the petition of the appellant, the Kenmont Coal Company, asking for vacation of a judgment of that court. The judgment under attack had vacated a decree of divorce granted by that court against Empsie Fisher, the appellee. The divorce was granted to George Fisher in 1947, and he was killed in 1950, while in the employment of the appellant. Proceedings on a claim before the Workmen's Compensation Board have been suspended pending the outcome of this litigation.

The Fishers were married in Virginia, in 1923, and moved to Kentucky in 1927. George worked as a miner in Kentucky until 1942. The family then moved to Baltimore where both of the Fishers were employed in defense plants. Due to family difficulties, Empsie and the children left Baltimore in July 1944, and went to Newport News, Virginia. George remained in Baltimore until February, 1945, then went to Fairfax County, Virginia, and finally came to Leslie County, Kentucky, in January, 1946. On February 17, 1947, George filed a petition for divorce in the Leslie Circuit Court on the ground of abandonment for over one year. Service by publication was had on Empsie and a judgment granting the divorce was entered on August 26, 1947. George subsequently moved to Perry County, Kentucky, and began working for Kenmont Coal Company. He was killed in an accident on July 27, 1950, and an administrator was appointed by the County Court of Perry County in December, 1950.

On December 7, 1950, Empsie filed a petition in equity in the Leslie Circuit Court against the administrator seeking to have the divorce decree vacated. She alleged that George had not moved to Kentucky until the fall of 1946 and had not been a resident of Kentucky for one year at the time the suit was filed; that she had received no notice from the warning order attorney; that she had given George no grounds for divorce; and that she had a good defense. She asserted that the divorce judgment was void for want of jurisdiction of the parties and the subject matter. In her deposition she gave the date of George's return to Kentucky variously as March and September, 1946, but also testified that the last time she had heard of him was in February, 1945. She testified that she was forced to leave him in Baltimore because of his excessive drinking and threats to her life with a loaded shotgun. She further testified that, although she had not received a letter from the warning order attorney, George wrote her daughter in June, 1947, telling her that he had received a divorce and in September, 1947, she obtained a copy of the decree by writing the Leslie Circuit Court Clerk. She took no action because she could not afford the money and time off from work necessary for a trip to Kentucky.

The Leslie Circuit Court entered a judgment on June 1, 1952, annulling the divorce 'for jurisdictional fraud against the honor and dignity of the court' upon findings that George was not a resident of Kentucky one year next preceding the filing of his petition; that the matrimonial domicile was in Maryland and not in Kentucky; and that constructive notice to Empsie did not confer jurisdiction over the matrimonial res on the Leslie Circuit Court.

The appellant was not a party to the action asking that the divorce judgment be vacated and had no notice of it until after the decree was entered and Empsie had filed a claim with the Compensation Board. It then filed this petition to set aside the vacation decree on the ground that Empsie obtained it fraudulently by false allegations that George had not been a resident and had been at fault; that Kenmont was a necessary party; that the validity of the divorce was a moot question; and that the administrator was not a proper party and did not defend in good faith. The appellee filed a general demurrer claiming that Kenmont was merely a potential debtor and was not a proper party to a domestic relations action. The demurrer was sustained, and the appellant then filed an amended petition which merely re-asserted that it was interested, but in more vehement language.

On July 17, 1952, the special judge entered an order dismissing the petition and amended petition. The opinion of the court stated that the divorce was voidable, and then said:

'* * * after the death of G. E. Fisher, the court had no authority to set aside the divorce; however, this was done by a former judge of this court, and this court has a reluctance in vacating that order.

'This court is of the opinion that the parties should have a remedy, but finds no precedent for the factual situation here presented.'

This Court does not share the special judge's reluctance. The judgment of the Leslie Circuit Court purporting to vacate the divorce decree had no basis whatever in law and should have been declared void. Decrees of divorce are given a special sanctity in Kentucky. They can not be reversed by this Court, KRS 21.060, and they can not be reached by motion for a new trial on grounds discovered after the term, Civil Code of Practice, section 344, nor by motion for a new trial by a defendant constructively summoned, Civil Code of Practice, section 414. Indeed the Court has said that no order granting a divorce may be set aside except upon petition of both of the parties under Civil Code of Practice, section 426. Bristow v. Bristow, 51 S.W. 819, 21 Ky.Law Rep. 481; McCracken v. McCracken, 109 Ky. 766, 60 S.W. 720, 22 Ky.Law Rep. 1448. That statement is not quite true, since the vacation of a divorce decree has been allowed (even after the husband's death) where there was no proper service on the wife. See Ramsey's Ex'r v. Ramsey, 233 Ky. 507, 26 S.W.2d 37 (the wife was an insane person). And also where a husband secured a divorce by substituted service on false...