Williamson v. Williamson

• Decision Date: 28 February 1919
• Parties: WILLIAMSON v. WILLIAMSON.
• Court: Kentucky Court of Appeals

209 S.W. 503

183 Ky. 435

WILLIAMSON v. WILLIAMSON.

Court of Appeals of Kentucky.

February 28, 1919

Appeal from Circuit Court, Pike County.

Suit by Nellie Williamson against E. B. Williamson for divorce alimony, and custody of a child. Judgment for plaintiff, and defendant appeals, and plaintiff brings a cross-appeal. Judgment affirmed upon both the original appeal and cross-appeal.

J. C Cantrell, of Stone, for appellant.

Cline &amp Steele, of Pikeville, for appellee.

CLARKE J.

This is an appeal by the defendant from a judgment granting to his wife a divorce, the custody of their infant child, and "the sum of $1,500 alimony, $1,000 for herself, and $500 for the use of their infant child."

The petition did not state a cause of action for a divorce (nor was one asked), because it failed to state, as required by section 423 of the Civil Code of Practice, and section 2120 of the Statutes, that the cause of action occurred or existed in this state, within five years next before the commencement of the action; but complaint is not made of the judgment for divorce, of which we have no revisory jurisdiction. It is, however, insisted that, because the petition does not state a cause for divorce, the court erred in awarding alimony, it being the contention of counsel for appellant that alimony cannot be granted, except in a suit and as a part of a judgment for divorce, and we are referred to a statement to that effect in Freeman v. Freeman, 13 S.W. 246; but such is no longer, if ever, the rule in this state, as a suit for alimony may be maintained independent of and without regard to a divorce, where the husband treats the wife with cruelty and compels her to leave him (Hulett v. Hulett, 80 Ky. 364), and although the abandonment may not have continued long enough to entitle her to a divorce ( Steele v. Steele, 96 Ky. 382, 29 S.W. 17; Belcher v. Belcher, 145 Ky. 309, 140 S.W. 309).

Since an independent suit may be maintained for alimony in the absence of grounds for divorce, it is manifest that the Code and statutory provisions referred to above have no application to an action for alimony, and in such an action it is not necessary to give the court jurisdiction, or for any purpose, that there should be an allegation that a cause for divorce had occurred or existed within this state and within five years next before the action was commenced; and it is necessary only to allege the marriage and facts showing an abandonment by the husband without fault upon the part of the wife, to state a cause for alimony.

It is purely an action in personam for the recovery of money, and therefore transitory, except as localized by section 76 of the Code of Practice "to subserve the convenience and possibly the interest of the wife," but over which any court having jurisdiction of the subject-matter may acquire jurisdiction of the defendant, when he is summoned to answer, or voluntarily appears, and makes defense. Johnson v. Johnson, 12 Bush, 485; Tudor v. Tudor, 101 Ky. 530, 41 S.W. 768; Gillen v. I. C. R. Co., 137 Ky. 375, 125 S.W. 1047. Hence there is no merit in the contention that, because of the failure to make the allegations required in an action for divorce, the court was without jurisdiction of the subject-matter or the parties, and without power to award such alimony as the proof warranted.

2. The proof shows that the parties were married in West Virginia in 1912, and that in 1913 the plaintiff left the home of the defendant in West Virginia and returned to her former home in Pike county, Ky. where she has since continuously resided; that she has no property of any kind, except one cow, and the defendant has property of the value of $8,000 at least; that their marriage was the second for each, and purely a marriage of convenience, devoid of any sentiment whatever. At the time, plaintiff was a widow with two infant children of tender years, whom the defendant agreed should have a home with their mother in his home, and that he would provide for them.

To sustain her charge that she was compelled to and did leave the defendant because of his cruel and inhuman treatment of her (which is an abandonment...