Smith v. Smith
| Decision Date | 11 June 1918 |
| Citation | 203 S.W. 884,181 Ky. 55 |
| Parties | SMITH v. SMITH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Harlan County.
Suit for divorce by W. H. H. Smith against Sarah Smith. Judgment for plaintiff, and defendant appeals. Reversed, with directions to enter judgment consistent with the opinion.
Metcalf & Jeffries, of Pineville, Henry Jackson and John W. Rawlings both of Danville, and Clay & Carter, of Harlan, for appellant.
Edward C. O'Rear, of Frankfort, and J. S. Forester, of Harlan for appellee.
The appellee and plaintiff below, W. H. H. Smith, brought this suit in the Harlan circuit court against his wife, the defendant and appellant here, Sarah Smith, seeking a divorce from the bonds of matrimony upon the ground that she had been guilty of adultery with J. E. Kirby, Edgar Thomas, J. H. Smith, "and others whose names are now unknown to the plaintiff." He charged that because of the defendant's unchastity she was an unfit person to have the custody of their children, whose names and ages are Matilda Smith, aged 19 years; Laura Smith, 17 years; Noble Smith, 15 years; Creed Smith, 12 years; Delano Smith, 10 years; and Edna Smith, 6 years. The answer denied the allegations of the petition, except as to the charge of adultery with J. E. Kirby; and in another paragraph defendant pleaded that her conduct with Kirby occurred in the early part of the year 1912, and that plaintiff had full knowledge of it and forgave the defendant and condoned the act, and afterwards lived and cohabited with her as his wife. In a third paragraph, in which she made a counterclaim against plaintiff, she relied upon the two statutory grounds of divorce of (1) cruel and inhuman treatment toward her by the defendant for not less than 6 months, in such a manner as to indicate a settled aversion to her and to destroy permanently her peace and happiness, and which treatment consisted in beating, striking, and bruising the defendant, and falsely accusing her of committing the crime of adultery, and of maintaining a house of ill fame, and (2) abandonment without support for more than 12 months. She afterwards, by amended answer and counterclaim, alleged that plaintiff was guilty of living in adultery with one Eula Sergent, alias Eula Howard, and upon the three grounds relied upon in her counterclaim as amended she asked that she be granted an absolute divorce from her bonds of matrimony. Appropriate pleadings denied her allegations, and upon trial, after considerable preparation, the court sustained the prayer of the petition, and granted to plaintiff an absolute divorce, annulling the marriage between him and the defendant, and dismissed defendant's counterclaim for the same relief; but with the wife's character thus blackened he adjudged the custody of the children to the defendant, and allowed to her and them the use of a residence in Danville, Ky. where they had been living while the children attended school since August, 1912, and that plaintiff be required to pay for the joint use of the wife and children $150 per month, and that plaintiff should pay the expenses of the children in attending school. Afterwards defendant, upon notice, entered a motion to modify the judgment, and to allow to her a permanent sum in alimony, which she insisted upon as being fixed at $100,000, and that the attorney's fee of $750, which had been allowed to her attorneys in the original judgment, be increased to the sum of $10,000. That motion was overruled, and defendant prosecutes an appeal from that order, as well as from the original judgment, insisting that the court erred, under the facts disclosed by the record, in disallowing her alimony in the sum allowed for the children, and in fixing the fee of her attorneys at only $750.
It is scarcely necessary to state that, however erroneous the judgment granting the divorce may be in our estimation, there is no appeal from it, and it cannot be interfered with, but it is equally true that this court upon appeal, even where a divorce has been granted and alimony disallowed, may look into the record and the facts, and, if it is found that the judgment annulling the bonds of matrimony should not have been rendered, to order and direct such a judgment concerning alimony and the property rights of the parties as the law and facts authorize. Burns v. Burns, 173 Ky. 105, 190 S.W. 683; McClintock v. McClintock, 147 Ky. 409, 144 S.W. 68, 39 L. R. A. (N. S.) 1127; Tilton v. Tilton, 29 S.W. 290, 16 Ky. Law Rep. 537; Zumbiel v. Zumbiel, 113 Ky. 84, 69 S.W. 708, 24 Ky. Law Rep. 590; Freeman v. Freeman, 13 S.W. 246, 11 Ky. Law Rep. 824; and numerous other cases which might be cited.
It therefore becomes necessary to look to the record to ascertain the facts and to determine the rights of the parties. It, in a large measure, portrays the dramatic as well as the pathetic. In 1888 the plaintiff was living with his mother in Harlan county on about 500 acres of mountain land, a small portion of which was tillable, and it was bountifully supplied with timber upon the surface and minerals under the surface. His mother was old and feeble. There lived nearby a woman who was the mother of some three or four illegitimate children, one of whom was the defendant in this case, and she was 12 years of age. Through some arrangement the defendant went to live with the plaintiff and his mother to assist the latter in doing the household work and perhaps looking after her ailments. She was rather precocious physically and otherwise, and within a short time thereafter the plaintiff, who was then 35 years of age, began to show her such kindnesses and attentions as invariably captivate a female child of that age. He would give her presents, consisting of candy and other cheap articles calculated to arouse her appreciation, and finally his conduct toward her assumed a fondling aspect, and resulted in him eventually seducing her. She became the mother of a child when she was only about 14 years of age. After that their illicit relations became more pronounced, until finally they were living in open adultery, and at regular periods a new child would be born, until 1899 or 1900, when plaintiff's mother died, defendant was the mother of five illegitimate children whose father was the plaintiff. They were then married, and several children were born after the marriage. She continued to live upon the farm, doing not only the household work, but milking and washing, and frequently working in the fields, and perhaps doing other work more assignable to masculine hands. The extent of that work was largely increased because plaintiff was, at the time defendant went to his home, engaged in getting out timber and working many hands, some of whom he boarded and fed. That character of work increased as plaintiff continued to buy more land surrounding his original place, until he acquired some four or five thousand acres, and at the time of the rendition of the judgment it was worth between $400,000 and $600,000. In addition he is shown to possess stock, cattle, and other property, the exact amount of which is not shown. The only assistance in cooking and doing the other kind of work herein stated which the defendant had was that furnished by her daughters as they grew large enough to help her. When she would be confined in childbirth it was never exceeding seven days, and then she would be put in a cabin in the yard, and not allowed to stay in the regular residence. But twice did she have a doctor to attend her, and at one time her child was born without any one being present. In 1910 plaintiff gave some kind of option on his land, the exact nature of which is not disclosed by the record, but he received therefor the sum of $10,000 in cash. The option was not exercised according to its terms, which resulted in the forfeiture of the $10,000 to plaintiff. Directly afterwards plaintiff and defendant made a trip, which was perhaps about the first time that either of them, especially defendant, was ever out of Harlan county. This trip was to points in Virginia and Washington, D. C., and after the return it appears that, through the importunities of defendant, the plaintiff was persuaded to give his children a better education than the facilities in the local public schools offered, and two of them were sent to a cheap school in Tennessee. The necessity for educating the other children as they grew old enough to receive it, and the desire of the two oldest, who had been sent away to school, to pursue higher branches, and the desire to rear her children in a better social atmosphere, with a full realization that they were able to do so, led Mrs. Smith to request her husband that they locate in some place where they could be furnished with appropriate educational facilities. They made some trips in search of a suitable location, with that end in view, and finally the husband purchased a house and lot in Danville, Ky. where the wife and children took up their temporary abode and the children were put in school. This was done in August, 1912. From that time to the filing of this suit, which was on the 12th day of February, 1916, the wife and the children occupied the Danville residence, while plaintiff spent the greater portion of his time at the old homestead in Harlan county, but he would upon occasions visit his family in Danville. The children regularly attended school, and made at least an average advance in their studies. Both they and their mother seem to have built fair and honorable reputations in that community, as is attested by the testimony of the leading citizens of that town. One of the daughters is an organist of one of the leading churches there, while the other is a member of the choir. In the early part of 1912, and...
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