Sharp v. Sharp

• Court: Kentucky Court of Appeals
• Writing for the Court: LATIMER, Justice.
• Citation: Sharp v. Sharp, 302 Ky. 426, 194 S.W.2d 835 (Ky. Ct. App. 1946)
• Decision Date: 25 January 1946
• Parties: SHARP v. SHARP.

194 S.W.2d 835

302 Ky. 426

SHARP v. SHARP.

Court of Appeals of Kentucky

January 25, 1946

Rehearing Denied June 21, 1946.

Appeal from Circuit Court, Bath County; William Blanton, Special Judge.

Action by Lena S. Sharp against Waller Sharp for divorce and alimony, wherein defendant filed a counterclaim for divorce. From a judgment dismissing plaintiff's petition and granting defendant a divorce, plaintiff appeals, and, from so much of a supplemental judgment as adjudged costs on appeal against defendant, defendant cross-appeals.

Judgment reversed with directions.

Frank C. Malin, of Ashland, G. Conner Ewing, of Owingsville, and W C. Hamilton, of Mount Sterling, for appellant.

Robt. H. Winn, of Mount Sterling, and J. A. Richards, of Owingsville, for appellee.

LATIMER Justice.

The controversial issue of alimony is here projected into another of the rapidly mounting cases of divorce.

The parties to this action were married in 1905. In 1944, after about 38 years together, they separated. Lena S. Sharp, the appellant here, plaintiff below, filed her petition for divorce and alimony in the Bath Circuit Court based upon the grounds of cruel and inhuman treatment.

Appellee defendant below, filed his answer and counter-claim alleging cruel and inhuman treatment and asked that he be granted a divorce.

Judge W. Bridges White filed an order of disqualification and Judge William Blanton was appointed special judge to try the case.

Plaintiff then filed her second amended petition in which she sets out more fully the property of the defendant, enlarges upon her allegations of cruelty and asks for alimony in a sum of not less than $30,000.

In giving her testimony, the plaintiff testified of certain perversions of her husband. Immediately thereafter the defendant filed a supplemental answer and counter-claim alleging additional or further brutal inexcusable and wanton cruelty.

During the pendency of the action in the lower court, appellant was awarded $200 a month for maintenance. Later, however, this amount was reduced to $180 per month.

Upon trial of the cause, the lower court entered judgment wherein it dismissed plaintiff's petition for divorce and alimony; set aside and annulled all previous orders for maintenance pendente lite; granted the defendant a divorce and adjudged the costs against the defendant.

Subsequent to the entry of the judgment, plaintiff filed motion for maintenance pending the appeal and for allowance for attorney's fee in prosecuting the appeal and costs sufficient to prepare and file the record on appeal.

The lower court entered a supplemental judgment overruling the motion in all parts except the latter above.

The appellant now comes before this court seeking reversal on the grounds that the court erred in (1) dismissing her petition and denying her divorce, (2) denying her maintenance pending the appeal, and (3) denying attorney's fee on appeal.

The defendant cross-appeals from so much of the supplemental judgment as adjudged the costs on appeal against him.

This record contains the testimony of 70 witnesses covering approximately 1000 pages.

The parties herein appear to be from upright and outstanding families, and stand well in their home community. The appellee owns property of considerable value. He owns a farm consisting of about 500 acres. He is a large tobacco grower, deals extensively in livestock, and from this record appears to be a successful farmer and business man.

The parties have one child, a daughter, who married a Mr. Tuttle in 1930, and from whom she was divorced in 1935. The Tuttles have one child, a son. This daughter's life seems to be interwoven with the domestic trouble resulting in the separation herein. The mother complained of ill treatment at the hands of the daughter, of her bad temper, abusive language, and even physical attacks upon her, which seems to have started almost from the infancy of the daughter, increased with the years and aggravated after her marriage to Mr. Tuttle in 1930, and intensified, according to the plaintiff, the last two or three years before the separation, all of which was acquiesced in by the father. This record does not disclose but that her father did acquiesce in this ill treatment on the part of the daughter toward her mother, or that he ever tried by counsel, advice or otherwise to prevent it.

Appellant complains considerably about what she calls the unfounded and baseless charge made by appellee that the appellant married the appellee 'from a motive solely mercenary, and not for any love or affection for him; that she conceived and bore the daughter named in the petition with the studied design and purpose that there might be an heir of her blood and of this defendant's blood to inherit his property should this defendant predecease the plaintiff; and that for said daughter, from her earliest childhood never had any motherly affection, but instead, from the said child's early infancy, plaintiff has had for her a continued and unnatural dislike.' She insists that such a false and malicious charge comes within the rule that charges made in a pleading in a divorce case constitute a cause for divorce and alimony if they are not made in good faith and if they are false and malicious.

The appellee is more sedulous in his complaint that appellant's charge of bestial immorality, as was testified to by her, constitutes brutal, inexcusable and wanton cruelty. It might be added here, however, that appellant testified of this marital difficulty upon question of counsel, who is now...