Pope v. Pope

• Decision Date: 25 April 1912
• Citation: 148 Ky. 30,146 S.W. 410
• Parties: POPE v. POPE.
• Court: Kentucky Court of Appeals

146 S.W. 410

148 Ky. 30

POPE v. POPE.

Court of Appeals of Kentucky.

April 25, 1912

Appeal from Circuit Court, Rockcastle County.

Action by Margaret Pope against Albert L. Pope. Judgment for defendant, and plaintiff appeals. Affirmed.

C. C Williams, of Mt. Vernon, for appellant.

L. W Bethurum, of Mt. Vernon, for appellee.

CARROLL J.

A general demurrer was sustained to a petition and an amended petition filed by appellant, and declining to plead further she prosecutes this appeal. The petition averred that the appellee, who was then the husband of appellant, owned a tract of land that he sold for $2,000, and "that at that time the plaintiff and defendant were husband and wife, but that they had a great deal of trouble, and her domestic life had been very unhappy; that the defendant had repeatedly threatened to kill her, and was guilty of such injury, or attempted injury, of the plaintiff as indicated an outrageous temper in him, or great bodily injury from her remaining with him, and that they were about to separate at that time; that, when the defendant sold said land in Harlan county, he agreed with the plaintiff to give her $500 of the money, and that he did give her $500, but thereafter he forcibly took said money from the plaintiff, and converted the same to his own use." In the amended petition she averred that when her husband, the appellee, gave to her the $500, "said money was given to her in view of and in contemplation of their immediate separation. The plaintiff says that they had reached the conclusion that they could not live in proper conjugal relations, that it was impossible for them to live as husband and wife, and that at that time they were preparing to and were about to sever their marriage relations, and that said sum of money was given to the plaintiff by the defendant in contemplation of the immediate severance and dissolution of their relations. The plaintiff further avers and charges that immediately thereafter they separated as husband and wife, and have not lived together as such since that time, and that in their suit for divorce nothing was said in the judgment about their property rights, and that no property was adjudged to either the plaintiff or the defendant. She further avers that she did not get the $500 in consideration of or by reason of her intermarriage with the defendant, but because they could not live in the proper conjugal relations and were severing the same; that a few days thereafter the defendant forcibly took said money from the plaintiff, and converted same to his own use, threatening to kill her if she refused to give him the said $500."

The substance of the averments in these pleadings, as we understand them, is that while the parties were living together as husband and wife, although contemplating a separation which soon afterwards took place, the husband gave to the wife $500 in money, and thereafter while the relation of husband and wife existed, and while they were living together, forcibly took it away from her.

Putting aside for the moment the question of the right of the wife to maintain an action to recover money or property given to her in settlement of the property rights of the wife after the act of separation has been completed, or while it is impending, we will consider the case in the aspect in which it is presented by the pleadings. If the husband gave the wife this money while they were living together as husband and wife, and took it away from her while they were living together as husband and wife, although it may have been given to her in contemplation of the immediate severance of the marriage relation, we think that section 425 of the Civil Code would preclude her from maintaining an action to recover it. This section reads in part: "Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property not disposed of at the commencement of the action, which either party may have obtained, directly or indirectly, from or through the other, during...