Theophanis v. Theophanis

• Decision Date: 24 June 1932
• Citation: 51 S.W.2d 957,244 Ky. 689
• Parties: THEOPHANIS v. THEOPHANIS.
• Court: Kentucky Court of Appeals

51 S.W.2d 957

244 Ky. 689

THEOPHANIS v. THEOPHANIS.

Court of Appeals of Kentucky

June 24, 1932

Appeal from Circuit Court, Franklin County.

Suit for divorce by Lillian Theophanis against George J Theophanis. From the decree granting divorce and alimony and attorney's fees, plaintiff appeals, seeking additional alimony and attorney's fees, and defendant cross-appeals.

Affirmed on both the original and cross appeals.

W. C Marshall and E. C. O'Rear, both of Frankfort, for appellant.

L. W Morris and Marion Rider, both of Frankfort, for appellee.

DRURY C.

On February 14, 1931, Lillian Theophanis (plaintiff) was given an absolute divorce from George J. Theophanis (defendant). She was awarded $1,000 alimony and $100 attorney's fees from which judgment she appeals, and asks $14,000 alimony and $1,500 attorney's fee, and defendant has prosecuted a cross-appeal asserting the court erred in the following particulars: (a) In awarding a divorce to plaintiff; (b) in allowing her any alimony; (c) in allowance of $100 to her attorneys; (d) in holding plaintiff and defendant were lawfully married; (e) in refusing to annul this marriage because of fraud alleged to have been perpetrated upon defendant by plaintiff; (f) in refusing to grant him a divorce upon his cross-petition wherein he sought such upon the ground that plaintiff had been guilty of such lewd and lascivious behavior as proves her to be unchaste.

These parties were married in Cincinnati, Ohio, on December 14, 1922. Defendant was then about 37 years of age, and had not previously been married. Plaintiff was perhaps 10 or more years his junior, but had been previously married to one Ralph Myers of Cleveland, Ohio, from whom she had obtained a divorce upon the charge of cruelty. The parties to this litigation have never had any children.

Plaintiff is a native of this country, and the evidence shows her to be a woman who has had quite unusual educational advantages; that she is industrious, neat, intelligent, and of a charming personality.

Defendant was born at Elova, Greece; he came to this country in 1905, has been a resident of Frankfort, Ky. since 1909, has been interested in the conduct of a restaurant known as the Manhattan, and was on September 27, 1914, naturalized as a citizen of the United States. He has had no educational advantages comparable to those had by the plaintiff, and of course has no such familiarity with the English language as the plaintiff.

We shall dispose of his contentions first. His contention (d) is that plaintiff is a mulatto, and that hence he was never lawfully married to her. See subsection 2 of section 2097, Ky. St.

Plaintiff is a daughter of Betty Walker Foos and Edward Foos, the latter being admittedly a white man. Betty Walker Foos was a daughter of Joel J. Walker, a white man, and a woman referred to as "Mary Jane," but whether she was the wife of Joel J. Walker or not is not established in this evidence. In his will Joel J. Walker makes provision for "my former servant Mary Jane (who has never left me) and her children named 'Bell,' 'Jf. Davis,' 'Bettie,' 'John Morgan,' 'Speed Smith,' 'Jane Taylor,' and 'Annie."' There is evidence some of these children married colored people and some married white people. Certainly the husband of Bettie Walker Foos was a white man. Litigation by Mary Jane Walker and her children has reached this court. Walker et al. v. City of Richmond, 173 Ky. 26, 189 S.W. 1122, Ann. Cas. 1918E, 1084; Walker et al. v. City of Richmond, 203 Ky. 481, 262 S.W. 628; Richmond Cemetery Co. v. Walker, 97 S.W. 34, 29 Ky. Law Rep. 1252, 7 L. R. A. (N. S.) 155. In this last case these things are said:

"In the month of December, 1903, a child of John Morgan Walker died, and the grave was dug upon the small lot above described, for the purpose of burying the child, when, it was alleged, the appellant did willfully and wrongfully refuse to permit him and his friends to enter the cemetery for the purpose stated, and they were compelled to bury it in a lot belonging to a colored man in the old part of the cemetery. ***

The substance of the answer was that the cemetery of the appellant was for the burial of white persons, and that colored persons were not allowed to be buried in it; that it had purchased 3 1/2 acres of ground on the opposite side of the city and donated it to the colored people in which to bury their dead, and it had offered to pay, and was willing to pay, the devisees of Joel J. Walker a full price for this plot of ground."

Thus we have one court proceeding wherein "Mary Jane" and her children were regarded as colored people, for the John Morgan Walker who was party to that proceeding was a son of "Mary Jane." There is evidence "Mary Jane" and her children were regarded by the people of Richmond as colored people. Defendant cites the case of Mullins v. Belcher, 142 Ky. 673, 134 S.W. 1151, 1152, Ann. Cas. 1912D, 456, wherein children of one-sixteenth negro blood were held to be colored children; the court there used this language: "The word 'colored,' as applied to persons or races, is commonly understood to mean persons wholly or in part of negro blood, or having any appreciable admixture thereof."

These things the defendant says are enough to show the marriage of plaintiff and defendant was invalid. That statute, it will be observed, forbids a marriage between a white person and a negro or mulatto. If Mary Jane Walker were a negro, then plaintiff would be a quadroon, and a mulatto, but it is earnestly insisted Mary Jane Walker, if indeed of negro blood, was not of pure negro blood. She had long black straight hair, a very straight nose, high cheek bones, and thin lips. She was of copper color, and had a smooth and beautiful complexion. Certainly there is no showing in this evidence that she was of pure negro blood, and she would have to be so to make of the plaintiff, a mulatto. See, McGoodwin v. Shelby, 182 Ky. 377, 206 S.W. 625. We therefore conclude this marriage was valid.

Defendant's next contention is that the plaintiff concealed from him the facts stated above, and that he was induced to marry her by a fraud thus perpetrated upon him by the plaintiff, and in support of this he relies upon Wesley v. Wesley, 181 Ky. 135, 204 S.W. 165; 19 C.J. p. 39, § 65; McAndrew v. McAndrew, 194 Ky. 755, 240 S.W. 745.

Plaintiff says that before their marriage she told defendant of this rumor prevailing around Richmond regarding her ancestry, and asked him to investigate it. Defendant denies this, but there is in this record a letter alleged to have been written by defendant to plaintiff, in which, among other things, these things appear: "As to the matter of your family affairs, I thought that over long time ago. *** I am not marrying the people or Richmond and their are not interested in my affairs *** Now dear that thing your must forget."

Defendant denies writing this letter, but, after comparing it with other letters in the record which he admits he wrote, we are not able to say the chancellor erred in finding against him upon this ground.

Considerable proof was taken pro and con upon defendant's contention (f), the recitation of which could do no good. We can well see how the chancellor would not find it sufficient to support a finding that plaintiff was guilty, and yet there was enough to justify defendant, in making this charge, so that it cannot be said that in making it he was guilty of cruel and inhuman treatment. See Sallee v. Sallee, 213 Ky. 125, 280 S.W. 932; Howard v. Howard, 222 Ky. 203, 300 S.W. 598.

The other contentions of defendant will be disposed of in our disposition of plaintiff's contentions, which are these Plaintiff says that the defendant, George J. Theophanis, without any fault upon her part, has habitually behaved toward her for not less than 6...