Robards v. Robards

• Decision Date: 22 May 1908
• Citation: 110 S.W. 422
• Parties: ROBARDS v. ROBARDS.
• Court: Kentucky Court of Appeals

110 S.W. 422

ROBARDS v. ROBARDS.

Court of Appeals of Kentucky.

May 22, 1908

Appeal from Circuit Court, Jefferson County.

"Not to be officially reported."

Action by Marion A. Robards against Carrye L. Robards for a divorce in which defendant filed a cross-petition. From a decree for plaintiff and an order refusing alimony, defendant appeals. Affirmed.

James C. Klein, for appellant.

Greene & Tilford and O'Neal & O'Neal, for appellee.

LASSING J.

This litigation deals with the sad story of the domestic infelicities of a young couple who for 10 years had apparently enjoyed each other's confidence and esteem. During this time three children, all boys, were born to them. The husband was a traveling salesman, and his business necessarily took him away from home a great part of the time. By thrift and economy he had saved enough money to purchase a small home in the city of Louisville, where his wife and their infant children resided. The title to this home was taken in the name of the wife. Some time during the year 1905, the husband conceived the idea that his wife was not conducting herself as she should. He caused an investigation to be set on foot, which apparently verified his suspicion that all was not right, and the disclosures thereby made resulted in his filing a suit for divorce on the ground of lewd and lascivious conduct. On motion of his wife he was required to make his pleading more specific and set out with particularity the places and dates where and upon which the acts complained of were committed and done. In compliance with the ruling of the court that the pleading be made more specific in this particular, he charged that on the 25th of March, and on April 8th following, she had entered a notorious assignation house in the city of Louisville, and remained there for some hours on each occasion, in company with a man whose name was unknown to plaintiff, and that on two other occasions, set out with particularity in the pleading, his wife, during his absence, had entertained in their home unmarried men, and had been guilty of conduct unbecoming a married woman on these occasions, by drinking smoking cigarettes, and being guilty of loud, hilarious, and boisterous talk and conduct in their presence. To these charges the defendant entered a complete denial, and in a cross-petition sought a divorce from bed and board from her husband on the ground of cruel and inhuman treatment habitual drunkenness, and adultery. Issue was joined upon each of these grounds for divorce set up in the cross-petition. The plaintiff offered to file an amended pleading setting up with particularity other acts of lewd and lascivious conduct on the part of his wife occurring something like a year after the date of the charges upon which the original petition was based. Objection was made by the wife to the filing of this amendment. The objection was sustained, and the amendment was not permitted to be filed. Shortly after the suit was filed, the defendant moved for an allowance pending the litigation for the support of herself and children. The parties agreed, and the order was so entered, that the plaintiff should pay to the wife $65 per month during the litigation. Much proof was taken by the plaintiff in support of the allegations of the original petition as amended and of the charges preferred in the amendment, which the court refused to permit to be filed. The defendant directed her proof toward establishing an alibi, as defense to the suit of her husband and in her own behalf proof was directed toward establishing the charges that her husband was an habitual drunkard, of an insanely jealous disposition, and extremely cruel toward her. The chancellor, on exceptions to depositions, sustained the exceptions filed by the defendant to all of the proof taken by plaintiff, which tended to show and establish the particular acts of misconduct set out in the amended pleading, which the court refused to permit to be filed, and also sustained exceptions to the deposition of the witness Laura Butler, on the ground that her good character was not certified to by the officer taking the deposition, not personally known to the judge, and her general reputation was not proven. Of this ruling the plaintiff complaints. However, with this evidence excluded from his consideration, the chancellor found that the proof remaining in the case supported the allegations of the petition, as originally amended, and warranted and justified him in granting to plaintiff a divorce on the ground of lewd and lascivious conduct on the part of his wife. This was done, and the cross-petition of the wife was dismissed. The title to the house and lot was taken from the defendant, and ordered restored to the plaintiff, from whom it was acquired. The custody of the children, about three, six, and nine years of age, respectively, was left with the wife, and she was permitted to remain in the home so long as the children were left in her care and custody, and the plaintiff was required to pay to the wife, for the support of the children, until further order of the court, the sum of $65 per month. The wife was denied any alimony whatever. From so much of this judgment as denied to the wife alimony she has appealed. She asked that an allowance be made her pending the appeal for her own support and maintenance. This the chancellor denied, and from his ruling upon this point she has likewise prosecuted an appeal, and, in addition to prosecuting an appeal from his ruling, has asked that this court make an allowance for her support and maintenance pending the appeal. All of these questions are now before us and will be considered and disposed of together.

The first question for consideration is the ruling of the chancellor in refusing to permit the amended petition to be filed. Section 134 of the Code of Civil Practice provides that the court may at any time, in furtherance of justice and on such terms as may be proper, cause or permit a pleading or proceeding to be amended, and, in passing upon the action of the trial court in permitting or refusing amendments, this court has held that the only limitation placed upon the discretion of the trial judge in allowing amended pleadings...