McClintock v. McClintock

• Decision Date: 07 March 1912
• Citation: 147 Ky. 409,144 S.W. 68
• Parties: McCLINTOCK v. McCLINTOCK. [d]
• Court: Kentucky Court of Appeals

144 S.W. 68

147 Ky. 409

McCLINTOCK v. McCLINTOCK. ^[d]

Court of Appeals of Kentucky.

March 7, 1912

Appeal from Circuit Court, Fayette County.

Action by Maggie Rogers McClintock against James D. McClintock. From a judgment dismissing the petition and denying plaintiff any relief whatever, she appeals. Reversed, with directions.

Geo. C Webb, Talbott & Whitley, and Maury Kemper, for appellant.

Allen &amp Duncan and Denis Dundon, for appellee.

LASSING J.

Appellant and appellee were married in July, 1906, and separated in August, 1909. Shortly after the separation she instituted a suit for divorce a mensa et thoro, on the statutory grounds of cruel and inhuman treatment. The answer is a traverse. Much proof was taken, covering practically all of the married life of the litigants, and upon final submission the chancellor dismissed the petition, and denied plaintiff any relief whatever. She appeals.

In the lower court the point was made that the Fayette circuit court had no jurisdiction to try and determine the case. The evidence shows that when appellant left her husband's home in Paris, Bourbon county, she went out to the home of a relative near that city, and a few days later went to Lexington to the home of another relative. Shortly thereafter she brought this suit in Fayette county. She had no home of her own to go to, and had to decide where she wanted to live. It was purely a matter of election on her part, and, as said by this court in Gooding v. Gooding, 42 S.W. 1123 19 Ky. Law Rep. 967, "the intention of the party and fact of location at any point make the residence." It is conceded that, had she rented premises in Lexington and gone to housekeeping, under the authority of the Gooding Case, her residence would have been established in Fayette county; but that, because she stopped with a relative, a different rule should apply. This reasoning is not sound. One may have a residence in a boarding house as well as in a rented building or property owned outright. The question is not how she lived, but had she determined to make Lexington her home. In her petition she says that she had, and the best evidence of such determination on her part we find in her going there and declaring when she filed her suit that it was her home. The trial court correctly so held. While denying the plaintiff any relief whatever, the chancellor in his judgment awarded to her the custody of their 18 months old child, and directed that her husband should pay monthly for the support of herself and her child, during this litigation, $62.50 per month; but made no provision for the support of either the appellant or the child after the termination of this litigation. The judgment giving to the wife the custody of the child was eminently proper, and the provision made for its father to see it at stated intervals and to have the custody of it on certain days of the week was fair and reasonable to both parties. The child is still in the custody of the court; and, although no order has been made by the court for its support by its father after the termination of this litigation, the chancellor would have ample power to make such further order from time to time as its needs and condition required.

The real question raised upon this appeal was the correctness of the chancellor's ruling in dismissing plaintiff's petition. Under our rule of evidence, allowing neither husband nor wife to testify in divorce proceedings, it frequently happens that no accurate insight into their home life can be obtained, and we are furnished but fragmentary or broken bits of evidence of their marital woes. This record presents such a case. Appellee at the date of their marriage was past 50 years of age. Appellant was about 25. His habits in life were fixed. Hers were in the formative period. He was a man of the world, of large business experience. She was raised in the country, and was apparently younger in experience than in years. He was a shrewd, cool, calculating, methodical business man; she, an unsophisticated country girl. She was of a very affectionate disposition; he not at all demonstrative. Shortly after their marriage she was taken sick of a trouble peculiar to women, and it became necessary for her to submit to a surgical operation a few months after their marriage. She remained at the hospital in Lexington for some weeks and until she was apparently relieved of the trouble. About a year after her return home a girl baby was born to them. The record furnishes but little evidence of their home life during the interval between her return from the hospital and the birth of their child. Some difference arose between them as to the proper method of raising the child. Appellee did not think that his wife's milk was sufficiently nourishing. She insisted that it was and wanted to nurse her baby, and was opposed to raising it on a bottle. After some considerable trouble over the matter, she was permitted to have her way. But this difference was evidently not regarded by her as of a serious nature, because in the spring of 1908, when she went on a visit to some of her people in St. Paul, Minn., she wrote frequent letters to her husband, and from the tone thereof it is apparent that she entertained none other than the kindliest of feelings towards him. All of these letters are filled with terms of endearment, and manifest beyond question that she was entertaining no feeling of resentment toward her husband for his trying to make her wean her baby or raise it by hand.

She was a member of the Christian Church before they were married and it appears that, during a revival in the Christian Church in Paris in the winter of 1908 and 1909, at the earnest solicitation of John McClintock, a brother of appellee, she put her letter in that church, and, while she made no secret at her home of her intention so to do, and discussed the matter with her brother-in-law, Mr. McClintock, in the presence of her husband, it is reasonably apparent that her husband did not know she had done so, and did not discover this fact until the latter part of February or early in March, 1909. His attention was drawn sharply to this fact by a request on the part of his wife that he pay her dues to the church, then amounting to some $12 or $13. He became very much offended on account of his wife's having put her letter in the church without notifying him, and worked himself up into such a rage over it that it was necessary to send for and have a doctor minister to him in order to quiet his nerves. At that time, and while he was in what the witnesses term a "tantrum," he notified his wife that there would have to be a separation. Insisting that she had done no wrong in transferring her membership from the country church to the city church of the same faith, and that he was wholly unjustified in treating her in the way and manner in which he was on account of it, she nevertheless pleaded with him not to carry out his intention of separating from her, and urged that, even though he had no regard for her, he should not do so on account of their child. He left the home on that night, and did not return for two days. According to the testimony of the witnesses, when he did return, he still said that a separation would be necessary and insisted that it should take place, and wanted to arrange to have one of his wife's relatives make proper division of his estate among himself, his wife, and their child. He was a member of the First Presbyterian Church, which, at that time, however, was not holding services regularly. From that time until their separation it is apparent that the home life of Mrs. McClintock was very unhappy. Mr. McClintock was engaged in looking after his business affairs. He would eat his breakfast in the morning, go downtown, returning at noon for his lunch, when he would again leave, and not return until time for dinner in the evening, and after dinner it was his custom to go back downtown and remain there until 9 or 10 o'clock. His wife spent practically all of her time at home with her baby. She saw little of her husband. He paid but little attention to her. The servant testifies that many times she found her in tears, and that this was particularly true during the two latter months of her stay at her husband's home, when she cried most every day. The latter part of June, or early in July, their baby was taken sick with summer complaint and whooping cough. Dr. Vansant was called upon to treat her. Mrs. McClintock did not think that the child was improving under this treatment, and became dissatisfied with it, and wanted another doctor. Her mother had a prescription which she had used successfully in the treatment of her own family and others for whooping cough, and she wanted it filled and the child given some of that medicine. It thereupon resulted that, on account of the anxiety of each parent for the health and welfare of their child, another quarrel was brought on, and again he notified his wife that they would have to separate; that, while he had sought to avoid it, he found it to be necessary. At that time she was in a highly nervous condition, due to the return of the old trouble for which she had been treated at the hospital prior to the birth of her child and the worry incident to its present sickness, and, following this quarrel with her husband and the announcement on his part that there would have to be a separation, she was taken down sick and remained in bed under the care of a physician and a nurse for some eight or ten days. During this illness her husband paid no attention to her whatever, did not go to her room or manifest any interest in her further than to inquire of the nurse how she was. When she had practically recovered from this illness, she notified her brother, living in...