Smith v. Smith

• Decision Date: 25 April 1905
• Citation: 86 S.W. 678
• Parties: SMITH v. SMITH.
• Court: Kentucky Court of Appeals

86 S.W. 678

SMITH v. SMITH.

Court of Appeals of Kentucky.

April 25, 1905

Appeal from Circuit Court, Jackson County.

"Not to be officially reported."

Suit for divorce by Nancy Smith against Isom Smith. From so much of the judgment as allows alimony to plaintiff, defendant appeals. Reversed.

J. R Llewellyn and G. T. Rodes, for appellant.

A. W Baker, for appellee.

SETTLE J.

Appellant and appellee were married on the 22d day of October, 1899 and lived together as man and wife from that time until March 15, 1904, when appellee left her home, and took up her residence with a married daughter, with whom she yet resides. After leaving appellant, she brought this suit for a divorce and alimony upon the ground of his alleged cruel and inhuman treatment of her. Appellant, by answer, traversed the allegations of the petition, and in addition asked a divorce a mensa et thora from appellee upon the ground of her violent and ungovernable temper and settled aversion for him. The answer was made a counterclaim against appellee. The chancellor dismissed appellant's counterclaim, but granted appellee a divorce a vinculo and alimony of $60 per annum. To so much of the judgment as allowed appellee alimony appellant excepted, and its reversal to that extent is sought by this appeal.

While we cannot disturb the judgment as to the divorce, we have carefully considered the grounds urged therefor, and the proof offered in support thereof, that we might determine whether the allowance of alimony was proper. It appears from the record that appellant and appellee had several children each by a former marriage. Upon their marriage they took these children to live with them, and dissension and trouble soon arose between the children, which very naturally involved the parents. In fact, appellee's complaint against appellant in this case was the alleged misconduct of his children their mistreatment of her, and his refusal to control and require them to treat her with respect. Upon the other hand, appellant complained of the misconduct or appellee's children and her failure to control them. According to the evidence, on one occasion a son of appellee attempted to cut one of appellant's sons with a knife, at which appellant was greatly provoked, and at his request appellee sent her son to another place to live. On another occasion appellee got into an altercation with appellant's two unmarried daughters, and one of them struck her, whereupon appellant whipped the two girls, and found them a home elsewhere than at his own house. Appellee complained specially of the alleged impudence and bad conduct of the stepson Ben Smith, a boy of 14 years of age. The evidence shows that Ben was at times impudent and disrespectful to appellee, but this was in large measure caused by her mistreatment of him and her failure to furnish him with a comfortable bed, bed clothing, and place to sleep. At first appellant seems to have made every effort to keep the peace between his son Ben and appellee, and to require the former to treat her with proper respect. He received no assistance from appellee in this laudable undertaking, as she was fault-finding, capricious, and domineering in her conduct towards appellant and his children. It seemed to make appellee jealous and...