Tilton v. Tilton

• Decision Date: 22 January 1895
• Parties: TILTON v. TILTON.
• Court: Kentucky Court of Appeals

29 S.W. 290

TILTON v. TILTON.

Court of Appeals of Kentucky.

January 22, 1895

Appeal from chancery court, Nicholas county.

Action by Martha May Tilton against Robert D. Tilton. From a decree for defendant granting him a divorce, and denying plaintiff alimony, she appeals. Reversed.

Thomas Owens and William H. Holt, for appellant.

Hanson Kenedy, Knott & Edelen, and Kenedy & Son, for appellee.

PRYOR C.J.

On the 13th of September, in the year 1892, the appellant, Mrs. May Tilton, instituted this action below for a divorce and alimony from her husband, Robert Tilton. The grounds relied on were a confirmed habit of drunkenness; a failure to provide for the wife any means of support; and, lastly behaving towards her in such a cruel and inhuman manner as indicated a settled aversion to her, and destroyed permanently her peace and happiness. The appellee (the husband) denies the existence of any and all the grounds for relief, and asks that he be granted a divorce on the ground that his wife (the plaintiff) had been guilty of adultery. The chancellor refused any relief to the wife, and granted the husband a divorce a vinculo matrimonii. The wife is now claiming the husband was not entitled to a divorce, and that she should have been allowed alimony, and this is the question involved in the appeal. It is claimed by counsel for the appellee that, as an action for permanent alimony may be independent of the action for a divorce, no alimony can be allowed in this case, because there is no specific amount claimed or other facts alleged to enable the chancellor to render a judgment pro confesso or upon the facts alleged in the petition. We understand the rule to be that, in an action for a divorce, the right to alimony will follow if the wife is granted the divorce; and that, while the facts proven may not justify a divorce, alimony may nevertheless be allowed and while this court has no power to reverse a judgment of divorce, if the husband was not entitled to it, alimony will be given the wife, if otherwise entitled. If she is entitled to a separation from bed and board, or to an absolute divorce, the right to alimony follows under the prayer for general relief. If the wife is the plaintiff in the action it is an incident to the main relief sought. Wilmore v Wilmore, 15 B. Mon. 49. These parties were married in November, 1885, and lived together until July, 1892. The testimony shows that the appellee was a slave to whisky and morphine, and that he failed to provide for the wife as he should have done. His conduct otherwise was kind and affectionate, and when the plaintiff married him she knew his faults, and, regardless of the entreaties and persuasion of her relatives, resolved to consummate the marriage and risk the consequences. In a short time she was engaged in sewing for her friends and neighbors, at which she earned as much as $1.25 per week. Their parents seem to have furnished them often with supplies, and for the greater part of their married life they lived at the home of Dr. Tilton, the father of her husband. She was not destitute of food or clothing and the distress of mind on her part, and the cruelty of the husband, consisted in his persistent purpose to lead a life of dissipation; and this the unfortunate woman was apprised of, and assumed to risk, when taking him as her husband; and upon the state of facts the chancellor would have been justified in dismissing her petition, and certainly denying to her such relief as an absolute divorce. We infer from the testimony that the appellant and her family did not occupy as high a position in social life as that of the appellee, but her character as an honest, pure, and confiding woman, so far as this record shows, seems never to...