Millar v. Millar

• Court: Supreme Court of Kentucky
• Writing for the Court: STEWART
• Citation: Millar v. Millar, 286 S.W.2d 882 (Ky. 1956)
• Decision Date: 03 February 1956
• Parties: Nelson MILLAR, Appellant, v. Margaret Mae MILLAR, Appellee.

Page 882

286 S.W.2d 882

Nelson MILLAR, Appellant, v. Margaret Mae MILLAR, Appellee.

Court of Appeals of Kentucky.

Feb. 3, 1956.

Thomas W. Hardesty, Newport, for appellant.

William R. Seidenfaden, Newport, for appellee.

STEWART, Judge.

This is an appeal from a judgment of the Campbell Circuit Court wherein appellee, plaintiff below, was granted a divorce on grounds of cruel and inhuman treatment and was bestowed rights in and to certain property hereinafter described. Two questions are presented in this appeal: (1) Whether the divorce should have been granted to the appellant on his cross-complaint, and (2) whether the amount of property awarded appellee was excessive and unwarranted.

As regards the first ground raised, the rule of law in this state is that the Court of Appeals is without power to reverse a judgment of divorce but it can review the correctness of such a judgment to determine whether the wife was entitled to the property she was awarded. Logan v. Logan, 312 Ky. 48, 226 S.W.2d 3; Ratliff v. Ratliff, 307 Ky. 282, 210 S.W.2d 969; Morris v. Morris, 193 Ky. 189, 235 S.W. 358. It is also the rule that in an action for divorce the right to alimony will follow if the wife, without fault on her part, is granted the divorce. Tilton v. Tilton, 29 S.W. 290, 16 Ky.Law Rep. 538, 539; Day v. Day, 168 Ky. 68, 181 S.W. 937. We have read the record and we shall simply state that the testimony reveals ample evidence of misconduct and threats to do bodily harm by appellant to support the divorce decree.

We now pass on to the second contention, namely, that the amount of property adjudged to appellee was excessive and unwarranted. A summary of the evidence shows the parties were married on May 22, 1937, and separated on or about May 6, 1952. They had no children born of their union, but appellant has a son by a previous marriage. Appellee testified she was employed practically every day by one concern during her marriage, and her gross wages from 1937 up to and through 1951 totalled $26,815.26. Her husband worked at seven or eight different places while their marriage lasted, his earnings amounting to approximately $3,600 per annum.

In 1939, appellee inherited $1,500 from her father and she and appellant then bought a modest home for $3,000, title to which was taken in appellee. She made a down payment of $500 on the home out of her funds, she and appellant borrowing the balance of $2,500 to pay the purchase price from a building and loan company and giving a mortgage on the property as security therefor. The remaining $1,000 of her inheritance went into the family purse and was spent in various ways. Until about two years...