Wilson v. Wilson

• Decision Date: 05 December 1933
• Citation: 65 S.W.2d 694,251 Ky. 522
• Parties: WILSON v. WILSON.
• Court: Kentucky Court of Appeals

65 S.W.2d 694

251 Ky. 522

WILSON v. WILSON.

Court of Appeals of Kentucky

December 5, 1933

Appeal from Circuit Court, Pulaski County.

Action for divorce by C. C. (Chris) Wilson against Elsie Wilson, and counterclaim by defendant. Judgment for plaintiff, and defendant appealed from so much of the judgment as denied alimony to her and support and maintenance of her child.

Affirmed in part, and reversed in part, with directions.

H. C Kennedy, of Somerset, for appellant.

B. J Bethurum and H. H. Denton, both of Somerset, for appellee.

CREAL Commissioner.

C. C (Chris) Wilson instituted this action against Elsie Wilson seeking a divorce on the ground of abandonment. By answer Mrs. Wilson, after a general denial of the allegations of the petition, alleged that immediately after her marriage plaintiff took her to the home of his father and mother, and that his relatives made life so unpleasant for her that it was impossible for her to live with him; that she often requested plaintiff to furnish her a home elsewhere, but that he refused to do so; that as a result of the treatment accorded her by relatives of her husband she was compelled to and did leave his home on the 11th day of July, 1931, and went to the home of her father; that, after she left plaintiff's home, and after they had ceased to live together regularly as husband and wife, up to and including the month of October, 1931, they at intervals met elsewhere and cohabited as man and wife, and in fact their separation did not occur until some time in the month of October, 1931; that on one of the occasions when they met and cohabited plaintiff became the father of her child, which has since been born. She further alleged that plaintiff is the owner of valuable property, and is worth at least $5,000, and is able-bodied; that she has no money or property except about $25. the balance of a small sum which plaintiff gave her some time after their separation. She asked for a reasonable sum for her support and for her costs, including a reasonable fee for her attorney.

By amended answer and counterclaim, defendant alleged that, at the time she signed a contract referred to in, and made a part of, the depositions, she was an infant under 21 years of age, and was without capacity to make or to enter into such a contract, and further that the contract was void and of no effect because it is against public policy. By way of counterclaim, she asked for divorce on the ground of cruel and inhuman treatment. She prayed that the alleged contract be held void; that the petition be dismissed, and she be granted absolute divorce; that she be awarded the custody of her infant child, Eugene Wilson, who was 4 months old, for alimony, and that plaintiff be required to make monthly payments to her for the support, maintenance and education of their child.

By reply and by order of the court, the affirmative allegations of the answer as amended were controverted of record. On final hearing, the chancellor adjudged that plaintiff was entitled to the relief sought, and defendant was not entitled to anything on the claim of maintenance for her child because, in the opinion of the chancellor, plaintiff was not its father. From so much of the judgment as denied alimony to her or any sum for the support and maintenance of her child, defendant is appealing.

In brief filed on behalf of appellant, counsel practically concede that, under the proof, the lower court did not err in denying her alimony, stating that the question of alimony is waived and that this court is not asked to disturb the judgment in that respect.

Uncontradicted proof establishes that appellant left her husband on the 11th day of July, 1931, and that her child was born on May 4 1932, or practically 10 calendar months after their separation. A physician introduced by appellee testified that the ordinary period of gestation is some 270 to 280 days, or about 9 calendar months. He further testified that there are a few cases of record where the period has been as long as 11 months, but that such cases were uncommon. Appellant testified that appellee met with her at the home of a neighbor some time in October, and they had sexual intercourse, and that they had such intercourse at another place some time prior to that, after she left her husband, but she did not atempt to fix the day. Appellee admitted that he was with appellant at the home of the neighbor,...