Miller v. Miller

• Citation: 141 Ky. 681
• Parties: Miller v. Miller.
• Decision Date: 20 January 1911
• Court: Kentucky Court of Appeals

141 Ky. 681

Miller v. Miller.

Court of Appeals of Kentucky.

Decided January 20, 1911.

Appeal from Campbell Circuit Court.

M. R. LOCKHART and WILLIAMS & LOCKHART for appellant.

(No brief for appellee.)

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Affirming.

On November 13, 1903, appellant, Jennie Miller, instituted this action for a divorce and alimony against her husband, John Miller. After setting forth her marriage to appellee and their residence in Campbell county, Kentucky, and the fact that the causes for divorce occurred in this State within five years next before the commencement of the action, appellant stated in her petition four grounds for divorce: First, the confirmed habit of drunkenness on the part of appellee, which had continued for more than two years, accompanied with the wasting of his estate and without any suitable provision for the maintenance of herself and child; second, that appellee had habitually behaved toward her, for not less than two years, in such a cruel and inhuman manner as to indicate a settled aversion to her and to destroy permanently her peace and happiness; third, that appellee was guilty of such cruel beating and injury, and attempt at injury of her, as indicated an outrageous temper in him, or probable danger to her life, or great bodily injury in case she continued to live with him fourth, abandonment of herself and child, and the failure and refusal on the part of appellee to make suitable provision for the support of herself and child. Accompanying the allegations respecting each cause of divorce was an allegation to the effect that appellant was without like fault.

Upon the filing of this action, appellant obtained an injunction restraining the appellee from obtaining or disposing of his salary in any manner until the further order of the court.

On November 30th, 1903, the restraining order was dissolved by mutual consent. On the same day a consent order was entered by which appellee agreed to pay appellant, and she agreed to accept, the sum of four dollars per week as alimony and maintenance during the pendency of the action, and thereafter as permanent alimony for the maintenance of herself and child. On April 9, 1904, appellant had filed the depositions of certain witnesses whose testimony tended to establish the allegations of her petition.

On January 27, 1906, the following order was entered: "This case is filed away and defendant will pay the costs herein, for which execution may issue." On November 17, 1906, appellant moved the court to re-docket the case and to issue a rule against appellee to show cause why he had not complied with the judgment with reference to alimony. The motion to redocket was sustained.

On February 19, 1910, on motion of appellant, a rule was awarded against appellee, returnable February 26, 1910, to show cause why he had not paid the alimony adjudged. On February 26, 1910, appellant moved to submit the case for judgment, and the same was submitted. On March 26, 1910, appellant moved to dispose of rule. Appellee then appeared and offered to file a response to the rule. The response was ordered filed. In this response he charged, in substance, that he had settled with, and paid in full to appellant any and all claim she had or might have against him for alimony for herself, together with all costs and attorneys' fees in the case; that at said time he agreed to pay four dollars per week for the support and maintenance of their minor child; that for some time thereafter he paid appellant said four dollars per week for said child until she surrendered to him the custody of the child; that he then took possession, care and custody of the child, clothed, fed, maintained, educated and cared for him in a proper manner until the 19th day of February, 1910, when appellant came from Chicago, Illinois, where she had resided for a period of four years, and persuaded the child to leave the home which appellee had provided for him and go with her to Chicago. The response concludes with a statement that neither appellee nor his attorney had any notice of the re-docketing of the case. On the same day appellee moved to set aside the submission and for leave to file answer. The court sustained this motion and directed that the submission be set aside and that the answer be filed. In the first paragraph of this answer appellee denied the allegations of the original petition. In the second paragraph he repeated the allegations contained in his response to the rule, and in addition charged that on September 6, 1904, appellant and appellee resumed their marriage relations, in the City of Cincinnati, where they took up and continued their residence and lived together as husband and wife, and where he provided and maintained a comfortable home for his wife and child, until January, 1906, when, without any fault or like fault on his part, appellant abandoned him in the City of Cincinnati, and went to the City of Chicago, where she had ever since resided and then resided. At that time appellee took up his residence in the ...