Traughber v. Traughber

• Court: Supreme Court of Kentucky
• Citation: Traughber v. Traughber, 434 S.W.2d 643 (Ky. 1968)
• Decision Date: 06 December 1968
• Parties: Katie Mae TRAUGHBER, Appellant, v. Herschel TRAUGHBER, Appellee.

Page 643

434 S.W.2d 643

Katie Mae TRAUGHBER, Appellant, v. Herschel TRAUGHBER, Appellee.

Court of Appeals of Kentucky.

Dec. 6, 1968.

G. D. Milliken, Jr., Bowling Green, for appellant.

J. Granville Clark, Russellville, for appellee.

DAVIS, Commissioner.

In this divorce action the wife appeals from the alimony award of $10,000 granted by the trial court and asserts that (1) she is entitled to alimony in a sum not less than one-third of the husband's net estate; (2) she is entitled to alimony even though the divorce was granted to the husband, since she was not wholly at fault and not guilty of moral delinquency.

These litigants were married in 1930 and lived together until their separation in 1967. Two children were born to them, both of whom are fully grown amd emancipated. At the time of the marriage, neither of the parties had any appreciable estate. At the time of the separation, they held title by joint deeds to a farm containing about 26 acres, a house and lot on Finn Street in Franklin, and a grocery store situated just over the boundary in Tennessee. Additionally, the husband held in his name certain stocks and bonds, and there were two automobiles and miscellaneous household goods; certain junk-yard property made up the balance of the estate.

The wife presented evidence, through her own testimony and through a real-estate agent, fixing gross values on the property involved at figures ranging from $107,120 to $137,620. The husband's estimates of value, when considered along with some unchallenged value figures concerning the junk yard and two automobiles, fixed the gross property value at $59,500. The trial judge, in his findings of fact, fixed the sum of $63,620 as the gross estate. The trial court also found that the husband had liabilities of $21,682, resulting in a net worth figure of $41,938.

In the findings of fact the trial judge concluded that the wife had been proven guilty of lewd and lascivious conduct. The record contains substantial evidence supporting the trial judge's finding in this regard.

The appellant cites Heustis v. Heustis, Ky., 346 S.W.2d 778; Broida v. Broida, Ky., 388 S.W.2d 617; Porter v. Porter, Ky., 394 S.W.2d 456; and Ralston v. Ralston, Ky., 396 S.W.2d 775, for the proposition that she is entitled to at least one-third of the husband's net estate as a matter of routine. Based on that contention, she asserts that even accepting the chancellor's finding of value the alimony award should have been $13,979. Accompanying that contention is her corollary one that the values as found by the chancellor were inordinately low. Hence, she reasons, the alimony award should have been $28,480.

We are confronted immediately by CR 52.01 which provides that factual findings of the trial judge will not be disturbed unless they are clearly erroneous. Although there was evidence which would have warranted the chancellor's finding a substantially higher value than he did, we are not able to say that the evidence was so overwhelming as to impel such a finding. In that circumstance, we...