Wesley v. Wesley

• Decision Date: 14 June 1918
• Citation: 181 Ky. 135,204 S.W. 165
• Parties: WESLEY v. WESLEY.
• Court: Kentucky Court of Appeals

204 S.W. 165

181 Ky. 135

WESLEY v. WESLEY.

Court of Appeals of Kentucky.

June 14, 1918

Appeal from Circuit Court, Pulaski County.

Action for divorce by James K. Wesley against Rosa L. Wesley, who counterclaimed for a divorce and alimony. Judgment for plaintiff, and defendant appeals. Judgment, so far as it denies wife's claim for alimony reversed, and cause remanded.

H. C Kennedy, of Somerset, for appellant.

O. H Waddle & Sons, E. T. Wesley, and Wm. M. Catron, all of Somerset, for appellee.

HURT J.

The appellee, James K. Wesley, abandoned his wife about the 16th day of November, 1917, and immediately instituted an action against her for a divorce from the bonds of matrimony. The wife, the appellant, Rosa L. Wesley, denying the truth of the grounds of divorce relied upon by the husband, averred the existence of grounds of divorce in her behalf against the husband, and by a counterclaim sought a divorce from him and a judgment for her costs and alimony. The court sustained the contentions of the husband, and adjudged that he be divorced a vinculo matrimonii, but denied the contentions of the wife and adjudged that her counterclaim should be dismissed. From the judgment the wife has appealed.

The statute denies this court the power to revise or reverse a judgment which grants a divorce, and to that extent the judgment must be sustained, however erroneous in our opinion it may be. Section 950, Ky. Stats. This, however, does not preclude this court from reviewing a judgment which denies alimony, nor from looking into the record where divorce has been decreed, and, without destroying the judgment to the extent that it grants the divorce, to determine whether the decree should have been rendered, as bearing upon the right of the wife to alimony. In all cases where the husband obtains a divorce without the fault of the wife, she is entitled to alimony, and this includes the state of case where the judgment for divorce in favor of the husband was erroneously granted, and in the state of case where the divorce should have been granted to the wife. Lacey v. Lacey, 95 Ky. 110, 23 S.W. 673, 15 Ky. Law Rep. 439; Steele v. Steele, 119 Ky. 466, 84 S.W. 516, 27 Ky. Law Rep. 120; Davis v. Davis, 86 Ky. 32, 4 S.W. 822, 9 Ky. Law Rep. 300; Hulett v. Hulett, 80 Ky. 364; Shepherd v. Shepherd, 174 Ky. 615, 192 S.W. 658; Freeman v. Freeman, 13 S.W. 246, 11 Ky. Law Rep. 824; McClintock v. McClintock, 147 Ky. 409, 144 S.W. 68, 39 L.R.A. (N. S.) 1127. If the facts are such that the wife is entitled to a decree, either for a divorce a vinculo matrimonii or a mensa et thoro, she will be held, upon appeal, to be entitled to alimony, although an erroneous decree has been rendered in favor of the husband granting to him an absolute divorce, or if the facts should be such as to not entitle the husband to a divorce alimony for the wife must follow.

Hence it becomes necessary to determine from the record whether the husband, in the instant case, was entitled to an abolute divorce, or any divorce at all. He bases his claim for relief upon four grounds, as stated in his petition, as follows: (1) That the wife procured him to marry her by fraud and deceit, in that previous to the marriage she had been guilty of fornication and adultery and such lewd and lascivious conduct as showed her to be unchaste, and that her reputation for chastity was bad, of all of which he was ignorant and she fraudulently concealed same from him; (2) that previous to the marriage she had been pregnant by a man other than plaintiff, and had sought to have an abortion produced upon her, and these circumstances she fraudulently concealed from him; (3) that previous to their marriage she had become addicted to the excessive use of intoxicating liquors and fraudulently concealed the habit from him, and after their marriage had continued to the habit; (4) that after the marriage she committed adultery with persons whose names he had been unable to learn, and was guilty of such lewd conduct as showed her to be unchaste.

The wife, by her answer, traversed all the averments of the petition, but admitted that after she had become engaged to be married to the appellee on one or two occasions, and after the marriage on one or more occasions, she had been intoxicated, but that the use of liquors was upon the solicitation of the appellee and by his consent, and that he furnished the liquors and became drunk at the same times with her. By way of counterclaim, she sought a divorce from appellee upon three grounds, namely: (1) That to induce her to marry him he fraudulently promised her that if she would do so he would purchase and cause to be conveyed to her a certain dwelling house, and would also give to her the sum of $2,000 in money, all of which he had no intention of doing at the time of the promise; (2) that for a period of six months before her answer he had habitually behaved toward her in such a cruel and inhuman manner as to indicate a settled aversion to her and permanently destroyed her peace and happiness, in that he had refused and failed to provide her with sufficient food and clothing, and that she was compelled to hire out and to work as a washerwoman to procure necessities, and had attempted to make her abandon him, and had preferred an unfounded charge of adultery against her; (3) that he had so cruelly beaten and injured her that it showed an outrageous temper in him and probable danger to her life or great bodily injury to her if she should remain with him, and that he finally deserted her after bringing this suit. These grounds set up by way of counterclaim and recrimination were all denied by a reply.

(a) The first and second grounds of divorce alleged by the husband together amount to an accusation that previous to the marriage the wife had been guilty of fornication or adultery and was unchaste, and that she had not divulged the fact of her guilt to the husband before the marriage. The parties had lived in the same neighborhood for a number of years, and, during the lifetime of the wife which appellee had previous to his marriage to appellant, the appellant had done services, as a servant, to some extent for the family of appellee, and there is no claim or showing that appellee and appellant were not well acquainted previous to their marriage. The appellee was a widower 72 years of age at the time of the marriage. He had five grown children, to each of whom he had given the sum of $2,000 just previous to the marriage. The record does not disclose how long he had been a widower. The appellant was a young woman 28 years of age. She had been married twice before her marriage to appellee. She had a daughter, who at the time of her marriage to appellee was 9 years of age, and who was the fruit of her first marriage. Her second marriage was to John Stone, in the year 1910. She and Stone lived together for a short time, when they separated. She obtained a divorce from Stone in February, 1917, about a month previous to her marriage to appellee on the 16th or 17th of March, 1917. In 1913 she gave birth to a child, which lived only a few days. She insists that Stone was the father of this child, but the register of vital statistics testified that she stated to him that a certain school-teacher was its father. So far as it affects the determination of this case, it does not seem to be material who the father of it was, as will be hereafter shown. The appellant averred in her answer, and her mother testified, that she borrowed $15 from appellee with which to bury the child, and stated to him at the time why she desired to borrow the money and whose child it was that was to be buried, and that just before appellant and appellee married he forgave her the debt as a present, and although appellee testified two or three times about matters which were competent for him to testify about, as well as incompetent matters, he made no denial of the fact that he furnished the money as above stated, and hence seems to have known all about it before the marriage.

An aged physician, who was an uncle of the appellee, testified that at a time of which he was totally unable to furnish the date or to approximate the date appellant approached him and sought to procure him to create an abortion upon her. The witness, who was both an aged man and at that time confined in a hospital, was unable to say whether this occurred before or after the marriage of appellant and appellee or when it occurred, but the circumstances indicate that it was previous to her marriage to appellee, and probably in the year 1913, as there is a total want of evidence that appellant ever underwent an abortion at any time, and certainly not after her marriage to appellee, nor any time approximately near the time of their marriage or previous thereto, as there is no evidence of any confinement or sickness upon her part which could be attributed to such a cause at any time. No other evidence was offered which in any wise tended to prove lewdness upon the part of the appellant previous to the marriage, except as stated above, and although it was averred in the petition that the wife's reputation for chastity was bad previous to the marriage, no attempt was made to offer any evidence to that effect. Such evidence would, however, have been incompetent, if offered, as the previous reputation of the wife would not have constituted any ground for divorce, and her character upon that subject could not have been made an issue. Evans v. Evans, 93 Ky. 510, 20 S.W. 605, 14 Ky. Law Rep. 628.

Section 2117, subsec. 1, Ky. Stats., provides as a ground for divorce from the bonds of matrimony the pregnancy of the wife by another man, without the husband's knowledge, at the time of the marriage, but it will be observed that nowhere is...