Shepherd v. Shepherd
| Decision Date | 02 February 1951 |
| Citation | 314 Ky. 575 |
| Parties | Shepherd et al. v. Shepherd. |
| Court | United States State Supreme Court — District of Kentucky |
Anna Lou Shepherd sued Howard H. Shepherd for a divorce wherein defendant filed an answer and counterclaim for divorce. Mrs. Lulu Shepherd filed an intervening petition alleging that she was owner of certain sandwich shop equipment. The Circuit Court, Fulton County, Elvis J. Stahr, J., granted the plaintiff a divorce, and decreed that the husband pay $30 a month for support of child born to marriage union, and that intervening petitioner be given a priority on proceeds of sale of certain property, and plaintiff and intervenor appealed. The Court of Appeals, Latimer, J., held that evidence was sufficient to support findings by trial court.
Judgment affirmed.
1. Bastards. — In absence of showing of husband's complete sterility during gestation period, legal presumption of child's legitimacy must prevail.
2. Bastards. — In wife's action for divorce and support of her unborn child wherein husband defended on ground that he was sterile and was therefore incapable of being father of child, evidence was insufficient to justify bastardization of child.
3. Liens. — In wife's action for divorce, evidence was sufficient to support finding that husband's mother was entitled to lien on proceeds from sale of certain property, to extent that mother had not been reimbursed by husband's payment of her hospital bills.
Jennings Kearby for appellant.
John C. Bondurant and James Warren for appellee.
Before Elvis J. Stahr, Judge.
Affirming.
Appellee, a resident of Union City, Tennessee, and appellant, a resident of Fulton County, Kentucky, were married in Tennessee in January, 1947. They immediately took their abode with appellant's parents near Hickman where appellant operated a small sandwich shop. They lived together about 3 weeks, or until the 11th of February, when appellee returned to her home in Tennessee. Appellee then returned to her husband about March 29th and remained with him another three weeks when she again left him. In May of that year she filed suit for divorce alleging that she was pregnant by her husband and asked and sought maintenance for herself and support of her unborn child, and also obtained general attachment.
Appellant filed answer and counterclaim for divorce. As one of his defenses he alleged that he was sterile and was so before their marriage; therefore, he was incapable of being the father of a child.
On June 7th, and before the sale of the attached property, Mrs. Lulu Shepherd, mother of appellant, filed her intervening petition alleging that she was the owner of the sandwich shop equipment and asked that the attachment levied on the property be dismissed.
After considering the proof, the court granted appellee a divorce; determined the child, which was in esse at the time of the judgment, to have been born to this marriage union;...
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