Sanders v. Sanders

• Decision Date: 02 May 1919
• Citation: 211 S.W. 425,184 Ky. 119
• Parties: SANDERS v. SANDERS.
• Court: Kentucky Court of Appeals

211 S.W. 425

184 Ky. 119

SANDERS v. SANDERS.

Court of Appeals of Kentucky.

May 2, 1919

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Suit by B. F. Sanders against Mary Sanders for divorce, with cross-bill by defendant for separation and alimony. Judgment for plaintiff was set aside on defendant's motion, the petition and counterclaim were dismissed, a decree was entered awarding costs and attorney's fees to defendant and plaintiff appeals. Affirmed.

W McKee Duncan, of Louisville, for appellant.

J. L Richardson and T. A. Luman, both of Louisville, for appellee.

THOMAS J.

This is a divorce suit filed by plaintiff and appellant against his wife, the defendant and appellee, seeking a dissolution of the bonds of matrimony upon the sole ground of one year's abandonment of plaintiff by defendant without his fault. The answer denied the grounds alleged in the petition, and by a counterclaim in a second paragraph sought a decree of separation from plaintiff and judgment for alimony against him upon the grounds of (a) cruel and inhuman treatment and (b) such habitual behavior toward her by plaintiff for not less than 6 months in such a cruel and inhuman manner as to indicate a settled aversion to her and destroy permanently her peace and happiness. Evidence was taken by both parties and the cause submitted, when on December 8, 1917, a judgment was rendered granting to plaintiff a divorce and dismissing defendant's counterclaim. Within 2 days thereafter, and before any change in the status of either party, the court, upon motion of defendant, set aside that judgment, and later, upon resubmission, dismissed the petition, as well as the counterclaim, and adjudged that plaintiff pay the costs of the suit, including $60 allowance to defendant's attorneys, and from that judgment plaintiff prosecutes this appeal, but no cross-appeal has been taken.

The first error complained of is that the court was without jurisdiction to set aside the first judgment, although admittedly done at the same term of court, and in support of this contention we are cited to the cases of McCracken v. McCracken, 109 Ky. 766, 60 S.W. 720, 22 Ky. Law Rep. 1448, Bristow v. Bristow, 51 S.W. 819, 21 Ky. Law Rep. 481, Bentz v. Bentz, 54 S.W. 715, 21 Ky. Law Rep. 1225, Hendrix v. Hendrix, 76 S.W. 165, 25 Ky. Law Rep. 632, and Greer v. Greer, 77 S.W. 703, 25 Ky. Law Rep. 1247. Upon a cursory reading of those cases it would seem that in some of them the opinions contain statements sufficiently broad to deny the court jurisdiction under any circumstances to set aside a judgment of divorce at the same term that it was rendered, but a close analysis of them will show that such statements were not necessary to a determination of the cause upon the facts presented. However, there exists in this jurisdiction, at least, a well-grounded exception to the general rule contended for by plaintiff, and which exception may be found fully stated in the case of Droste v. Droste, 138 Ky. 53, 127 S.W. 506. In that case it was held, as was proper, that the grounds for setting aside ordinary judgments at law or in equity after the expiration of the term do not apply to judgments in divorce cases. The court in the opinion points out that in the Bristow Case it was apparent from the record that the motion to set aside the judgment was made after the expiration of the term at which it was rendered; that in the Bentz Case one of the parties had married before the motion to set aside was entered; that in the McCracken Case the record failed to show whether either of the parties had married before the motion to set aside, and also failed to show whether the motion was made during or subsequent to the term at which the judgment was rendered; that in the Hendrix Case, and also in the Greer Case, it was recognized that the court had power, during the term, to set aside the judgment for sufficient cause, provided the condition of the parties remained unchanged, as appears from this excerpt from the opinion in the Hendrix Case:

"During the term, however, and while the condition of both parties remains unchanged, the judgment may be set aside at the instance of one party, but not without notice to the other."

The final conclusion of the court as to the correct rule in such cases is thus stated:

"We think the apparent conflict in the cases is due more to the failure to state fully in the opinion the facts than to any other cause, and that the rule established by the later cases and to which we adhere is that a judgment for divorce may be set aside during the term at which it was rendered, upon motion made by either of the parties after due notice to the other, provided the condition of the parties has not changed, or, in other words, if neither of them marries after the judgment of divorce is entered, and before it is set aside. But, if either of the parties marries after the divorce is granted and before it is set aside, then the court is without power to annul the divorce, although the motion so to do may be made during the term. But, after the term, the court has no power to set aside a judgment granting a divorce. It can only be annulled in the manner pointed out in section 426 of the Civil Code. The motion in this case to set aside the judgment was made during the term, and after notice to the other party; the only error in the practice being that it was not made to appear to the court by affidavit or otherwise that neither of the parties had married after the divorce was granted and before the judgment was set aside. We think, however, we may safely assume that neither of the parties had married, as, if the appellant had married after the divorce was granted and before it was set aside, he would surely have stated this vital fact in his affidavit resisting the motion. Taking it for granted, then, that the condition of the parties had not changed since the divorce was granted, we are of the opinion that the court was fully justified in setting aside the judgment and granting the appellee a new trial."

The doctrine of the Droste Case was recognized and applied in the later one of Summers v. Summers, 146 Ky. 653, 143 S.W. 27, but it was therein emphasized that the court would have no jurisdiction to set aside the judgment if the condition of either party had changed, and that before doing so that fact should be made manifest to the satisfaction of the court.

In this case there was not filed by defendant, at the time of making the motion to set aside the first judgment, any affidavit or writing of any kind showing no change in the condition of the parties since the rendition of the judgment; but that fact does otherwise appear in the record, and in the Droste Case, as will be seen from the excerpt supra, the record was in the same condition, and it was held that the trial court, as well as this court, had the right to treat the question as though the fact of no change in the condition of the parties had been manifested by some character of writing or pleading. We therefore conclude that the court had jurisdiction to entertain the motion to set aside the first judgment.

Whether the merits of the case were such as to authorize it, or to authorize the judgment appealed from, is another question and will now receive our consideration. The parties were married in June, 1912. They lived upon a small farm owned by plaintiff in the county of Jefferson. Both of them had been married before, and each had children by their former marriage, but none living with them at the time of their marriage or afterward. For a while the parties got along pleasantly and agreeably, but plaintiff claims that after a few months defendant manifested an ill...