Maher v. Maher
| Decision Date | 25 May 1943 |
| Citation | 295 Ky. 263 |
| Parties | Maher v. Maher. |
| Court | United States State Supreme Court — District of Kentucky |
3. Divorce. — On appeal in divorce suit, facts may be examined to ascertain whether they justify alimony or costs. KRS 453.120.
4. Divorce. — In suits for divorce where wife is not shown to have been in fault, husband must pay the costs including a reasonable attorney's fee, though wife has ample estate. KRS 453.120.
5. Divorce. — The allowance of alimony is not controlled by statute, and if wife has not sufficient estate of her own she may, on being granted divorce, have such allowance from the estate of her husband as to the court appears equitable. KRS 403.060.
6. Divorce. — Under statute providing that if wife has not sufficient estate of her own she may, on being granted divorce, have such allowance from the estate of her husband as to the court appears equitable, what is equitable is a matter for the consideration of the trial court based on the facts. KRS 403.060.
7. Divorce. — It is husband's duty to maintain the wife even after the cessation of the marriage relation, if he was the cause of the severance. KRS 403.060.
8. Divorce. — In determining proper allowance to wife in divorce suit, it is deemed "equitable" to regard the present value of the husband's property, his income, age and ability to work, and his expectancy of additional estate, as well as the social position and earning capacity of both husband and wife, and conduct which the parties have exhibited towards each other. KRS 403.060.
9. Divorce. — In divorce suit, the wife is entitled to alimony as a matter of course unless it appears from the proof that she was solely at fault or guilty of such moral delinquency as to forfeit her right to alimony. KRS 403.060.
10. Divorce. — In suit for divorce for cruel and inhuman treatment and for such injury or attempted injury as put the wife in fear of injury or harm, court properly granted wife divorce under the evidence. KRS 403.020.
11. Divorce. — In wife's suit for divorce for cruel and inhuman treatment and for such injury or attempted injury as to put wife in fear of injury or harm, wife was not required to be corroborated. KRS 403.020, 403.030.
12. Divorce. — Husband is not absolved from liability for alimony, regardless of whether wife sufficiently substantiated her ground for absolute divorce. KRS 403.060.
13. Divorce. — Where wife was granted divorce for cruel and inhuman treatment, allowance of $500 counsel fees and $2,500 alimony to wife was not an abuse of discretion. KRS 403.060, 453.120.
14. Divorce. — Amount of alimony as well as allowance of counsel fees is for chancellor in exercise of sound judicial discretion. KRS 403.060, 453.120.
15. Divorce. — On appeal in divorce suit, alimony and counsel fees allowed wife can be disturbed only for abuse of discretion, or where more than a doubt exists as to correctness of chancellor's conclusions. KRS 403.060, 453.120.
Appeal from Fayette Circuit Court.
M.J. Hennessey for appellant.
King Swope for appellee.
Before Chester D. Adams, Judge.
Affirming.
In April, 1941, appellee instituted suit against appellant for divorce, charging cruel and inhuman treatment, being ground (3) (b) of KRS 403.020. By amendment she added grounds set out in (3)(c) of the same section, such injury or attempt at injury as to put the wife in fear of injury or harm from "remaining with him." She also set up the financial status of the husband, asking for alimony in a lump sum of $1,000 and a monthly allowance of $150. Appellant denied the allegations of the petition in respect of both charges, and as to his financial status.
The case was referred to the master commissioner for proof and report. Following the taking of about 500 pages of depositions, he filed a comprehensive report, touching upon all issues, concluding with a recommendation that plaintiff be granted absolute divorce, and that the husband should pay $3,500 alimony. He recommended an allowance of $500 as a reasonable fee for the wife's counsel, this to be paid by the husband. To so much of the report as made recommendation for alimony and counsel fee, appellant excepted; likewise to recommendation of absolute divorce. The wife moved for confirmation of the report. Upon submission the chancellor adjudged the wife an absolute divorce, approved the allowance of counsel fees, but reduced the suggested allowance for alimony to $2,500. Appellant excepted to the judgment in its entirety; appellee to so much as reduced the alimony allowance; she is not here on cross appeal.
At the outset we are met with the contention of appellee that the question of allowance for counsel fee cannot be now considered by this court since counsel is not made a party, citing King v. King, 214 Ky. 171, 283 S.W. 73, and other cases which hold that where the allowance is made directly to counsel, it is necessary if question be raised here, that the attorney be made party.
Counsel for appellant contends that the rule is neither controlling nor applicable, since appellant was not entitled to allowance of any sum for legal services, because she was not free from fault, and had ample estate to pay for legal services. Since it appears that the allowance was to the wife with right of execution in her, we shall consider the question from the standpoint of appellant. The argument is based on the ground that the evidence did not show directly or by circumstance that appellant was guilty of any cruel or inhuman treatment, it being the theory of appellant that the wife merely became dissatisfied because the husband failed to carry out an agreement to purchase a part of his brother's farm, in which it seems she was to put some money and take joint title, and under such circumstance abandoned his home. This coupled at all times, both as to alimony and allowance with the assertion that she had ample property of her own.
Counsel fully recognizes the rule that we cannot on appeal disturb the finding of the chancellor in granting divorce, except in certain cases of fraud or want of jurisdiction, and correctly contends that we may look to the facts when there be questions of allowance of alimony or costs, to ascertain if they be such as to not justify the allowance or imposition. Land v. Land, 280 Ky. 122, 132 S.W. (2d) 742. Before taking up the facts it may be proper to observe the law on the subjects to be discussed. The statute providing for allowance of costs, which has been held to include counsel fees reads:
"In actions for alimony and divorce, the husband shall pay the costs of each party, unless it appears in the action that the wife is in fault and has ample estate to pay the costs." KRS 453.120.
In giving construction to the statute in no few cases, we have consistently held that the two conditions must exist or concur, in order to relieve the husband from payment. Robb v. Robb, 281 Ky. 729, 137 S.W. (2d) 385, and cited cases. In Ratliff v. Ratliff, 193 Ky. 708, 237 S.W. 397, 401, citing Wills v. Wills, 168 Ky. 35, 181 S.W. 619, quoting from Honaker v. Honaker, 182 Ky. 38, 206 S.W. 12, we said:
"As the wife in this case was not shown to have been in fault, although she had ample estate, the husband must pay her costs, including a reasonable attorney's fee."
In Hartkeimer v. Hartkeimer, 248 Ky. 803, 59 S.W. (2d) 1014, 1016, after quoting the statute supra, we said:
"It is true that appellee had some estate, but it not appearing that she is at fault, appellant must pay all costs, including attorneys' fees."
The allowance of alimony is not controlled by statute; it is provided (KRS 403.060) that if the wife has not sufficient estate of her own, she may on being granted divorce, have such allowance from the estate of the husband as to the court appears equitable. What is deemed "equitable" is a matter for the consideration of the trial court based on the facts. It is well recognized that it is the duty and obligation of the husband to maintain the wife even after cessation of the marriage relation, if he was the cause of the severance. In reaching the proper measure it is deemed equitable to regard the present value of the husband's property, his income, age and ability to work, and his expectancy of additional estate, as well as the social position and earning capacity of both husband and wife, and conduct which the parties have exhibited towards each other. Lewis v. Lewis, 289 Ky. 615, 159 S.W. (2d) 995; Sabel v. Sabel, 286 Ky. 575, 151 S.W.(2d) 56; Dodd v. Dodd, 278 Ky. 662, 129 S.W. (2d) 166.
As to what part the fault or like fault of the wife enters into the allowance seems to be fairly well settled in this jurisdiction. In the case of Moore v. Moore, 231 Ky. 829, 22 S.W. (2d) 251, we held that the wife is entitled to alimony as a matter of course, unless it appear from the proof that she was solely at fault or guilty of such moral delinquency as to forfeit her right to alimony. In Hartley v. Hartley, 255 Ky. 370, 74 S.W. (2d) 195, we adhered to the rule, using the word "wholly." In the recent case of Bordes v. Bordes, 272 Ky. 183, 113 S.W. (2d) 1122, we reviewed the cases cited above and others touching the subject, and adhered to the rule. The cases cited by appellant, Taylor v. Taylor, 273 Ky. 802, 117 S.W. (2d) 983, and others are cases wherein we found the wife to be wholly or equally at fault and not entitled to alimony. It follows that the determination of the chancellor in fixing alimony depends upon the facts and elements which we have named above.
When we consider the proof in the case, which we shall do briefly, we find existing...
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