Muir v. Muir

• Decision Date: 22 March 1906
• Citation: 133 Ky. 125,92 S.W. 314
• Parties: MUIR v. MUIR.
• Court: Kentucky Court of Appeals

92 S.W. 314

133 Ky. 125

MUIR v. MUIR.

Court of Appeals of Kentucky.

March 22, 1906

Appeal from Circuit Court, Nelson County.

"Not to be officially reported."

Action by Joseph Muir against Mary E. Muir for divorce, in which defendant filed a cross-bill for similar relief and alimony. From so much of a decree granting a divorce to defendant as awarded her alimony, both parties appeal. Affirmed on plaintiff's appeal, and reversed on defendant's appeal.

See 87 S.W. 1070.

John D Wickliffe, for appellant.

John S Kelley, for appellee.

O'REAR J.

Appellant a member of a rich and distinguished family, was married at the age of 20 to appellee, who was about the same age. She was of honorable parentage, who were in modest circumstances. The parties are now about 28 years old. Within a year after their marriage appellant developed the disease of syphilis. Whether contracted before or after his marriage is not shown. He continued to live with his wife, by whom there were born to him two children, there being less than two years' difference in their ages. Appellee claims that she contracted the disease from her husband before she knew he had it, and that one of the children, the elder, has also shown symptoms of the taint in his blood of this dread malady. Appellee did not then leave her husband. She says that she was humiliated by the knowledge of their affliction, but was willing to bear it in silence rather than make it public by an abandonment on that account. In the meantime appellant's conduct toward her became such as to indicate a settled aversion to her, and was so habitually cruel as to put her in fear of life or great bodily harm. She sued him for divorce on this last-named ground; but the action was dismissed on her motion before trial for reasons not affecting this case. Thereafter appellant sued her for a divorce upon the ground of abandonment. She defended, justifying her abandonment under the reasons first stated, and made them, furthermore, a ground for her claim for divorce, which she prayed for in her answer. She also prayed for support and alimony. The chancellor dismissed appellant's petition, granted appellee's prayer for divorce, and adjudged her $1,000 as alimony, and $10 per month toward the support of her children. The custody of the children was awarded the mother and no provision made, though requested by appellant, for him to see them, or have them visit him. He has appealed from the decree, except that part adjudging the divorce, from which no appeal lies.

He contends that his wife was in fault, wherefore it was erroneous to allow her alimony at all. The proof in our opinion sustains the conclusion of the chancellor. It tended to show that appellant had, for some years before his wife quit him, spent most of his nights, or rather a great part of most of his nights, in the town of Bardstown, leaving her and her child, or children, at their home in the country, unattended frequently, and occasionally by a negress servant only. He had no business away from home on many of these occasions, but spent his time loafing about barrooms, and in company sometimes, it was shown, of dissolute women of notorious character. His treatment of his wife was unfeeling and harsh. Witnesses said he assaulted her, struck her, cursed her, abused her, and threatened her. The record leaves no doubt that he had such a settled aversion for her as to indicate a complete alienation of affection. On all the grounds charged by her, including infidelity, the proof amply sustains the chancellor's finding in behalf of appellee.

Appellant's father is a rich man. As his sons reached manhood, and were married, he advanced them each about $10,000, or settled them in substantial business. After appellant's marriage, his father bought a farm of about 200 acres, known as the "Holtshouser Farm," paying $10,000 for it. He took the title to himself, but put appellant in possession of it. Appellant bought another place near by, known as the "Johnson Farm," for which his father paid. It is worth about $4,000. The title to it was taken to appellant. His father gave him live stock, such as horses, cows, and stock cattle, and farming implements. There was evidence that appellant's father has said that he gave all this property, except the stock cattle, to his son as an advancement, and had so charged it to him on his book of advancements. The witness further testified that appellant's father showed him the book and entries to that effect. Appellant at the time of the separation was in possession of all his property; but has since sold some of it. The lands he is yet in possession of, and has rented the farms from year to year, collecting and using the rents. He claims, though, that he is insolvent; that the Holtshouser farm does not belong to him, but belongs to his father; that the Johnson farm he has not paid for, but yet owes his father the purchase money advanced by him to buy it; that he yet owes for the personal property. His father, after the separation and after this suit was brought, was partially paralyzed, so that he ceased to attend to his business affairs, and it was also said he was unable to give his deposition in this case. During this condition, appellant, at the instance of his brother and some other relatives, executed a mortgage to his father and brother, to the bank of which his father and brother were officers and large stockholders, and to his other creditors generally, upon all his property, to secure an alleged indebtedness of about $10,000. The elder Muir did not know of this arrangement, did not authorize it, and so far as this record shows did not approve it. Other creditors named in the mortgage are shown to have been equally ignorant of its execution. Appellant is a man not lacking in understanding or education. Barring the ailment referred to, he is in good health, and is able to work, but, it seems, is not, or has not been, a successful business man. This, however, is probably due more to his habits than lack of ability. Appellee has no property, no means of support. Her father is a poor man. Her mother has no property. With this situation, what relief should the chancellor have decreed? Appellant contends, nothing. Appellee, dissatisfied with the decree fixing her alimony, has prayed a cross-appeal to have it increased.

The statute is (section 2122, Ky. St. 1903): "If the wife have not sufficient estate of her own she may, on a divorce obtained by her, have such allowance out of that of her husband as shall be deemed equitable." But this does not not mean that, if the husband have no present estate, his wife shall not be entitled to alimony. His contemplated probable earnings may be the basis for such allowance. Canine v. Canine, 16 S.W. 367, 13 Ky. Law Rep. 124. Nor do we perceive why, if probable earnings, as a reasonable expectation, may properly be considered, probable accretions of wealth from any other...