Messick v. Messick

• Decision Date: 23 October 1917
• Citation: 177 Ky. 337,197 S.W. 792
• Parties: MESSICK v. MESSICK.
• Court: Kentucky Court of Appeals

197 S.W. 792

177 Ky. 337

MESSICK v. MESSICK.

Court of Appeals of Kentucky.

October 23, 1917

Appeal from Circuit Court, Fayette County.

Suit by Maggie Messick against Bascom Messick. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

E. L Hutchinson, of Lexington, for appellant.

Hogan Yancey, of Lexington, for appellee.

CLAY C.

In this suit for divorce by Maggie Messick against Bascom Messick, a demurrer was sustained to the petition, and the petition dismissed. Plaintiff appeals.

One of the statutory grounds for divorce is "living apart without any cohabitation for five consecutive years next before the application." Subsection 2, § 2117, Kentucky Statutes. It appears from the petition that the plaintiff and defendant were married on December 26, 1894, and thereafter lived together as man and wife until December 13, 1910, when the defendant was adjudged a person of unsound mind by the Fayette circuit court, and committed to the Eastern Kentucky Lunatic Asylum. Ever since that time he has been confined in the asylum, and thus he and plaintiff have lived separate and apart without cohabitation for a period of more than five years next preceding the institution of the action. It further appears that defendant is now an incurable lunatic. It will thus be seen that plaintiff does not rely on the insanity of her husband as a ground for divorce, but on the ground that they have lived apart without cohabitation for five consecutive years, and the allegations respecting her husband's insanity are for the purpose of raising the question whether the statutory ground is applicable to a case where during the period of separation the defendant is confined in the asylum as an incurable lunatic.

In support of the affirmative of this proposition, counsel for plaintiff has presented a very able and interesting argument along the following lines: The statutory provision is without qualification. It does not make the right to a divorce depend on the fault of either party, or on whether the separation is the voluntary or involuntary act of the parties. On the contrary it makes the living apart for the period fixed by the statute an absolute and unrestricted ground for divorce. This position, it is claimed, finds support in the decision of this court in the case of Davis v. Davis, 102 Ky 442, 43 S.W. 168, 39 L. R. A. 403, where it was held that the wife was entitled to a divorce, although during the period of separation the husband was confined in the penitentiary. Some stress is also placed on the ruling of this court in the case of Andrews v. Andrews' Committee, 120 Ky. 718 87 S.W. 1080, 90 S.W. 581, 27 Ky. Law Rep. 1119, that where a cause of divorce had accrued to the husband, the subsequent insanity of the wife did not prevent his obtaining a divorce upon grounds arising before the judgment of lunacy. It is further pointed out that the case of Pile v. Pile, 94 Ky. 308, 22 S.W. 215, 15 Ky. Law Rep. 88, is not controlling because the divorce was there asked "on the ground of lunacy and abandonment for five years," and the court merely held that lunacy was not a ground for divorce, and that...