Zumbiel v. Zumbiel

• Decision Date: 18 September 1902
• Citation: 113 Ky. 841,69 S.W. 708
• Parties: ZUMBIEL v. ZUMBIEL. [1]
• Court: Kentucky Court of Appeals

69 S.W. 708

113 Ky. 841

ZUMBIEL v. ZUMBIEL. ^[1]

Court of Appeals of Kentucky.

September 18, 1902

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by Mary Zumbiel against John Zumbiel for divorce. Judgment for defendant, and plaintiff appeals. Reversed.

Wm. A Byrne, for appellant.

O. M Rogers, for appellee.

O'REAR J.

This action for divorce a mensa et thoro and for the custody of their children was instituted by the wife, appellant, on the ground that her husband had so habitually behaved toward her for not less six months, in such cruel and inhuman manner as to indicate a settled aversion to her, or to destroy permanently her peace or happiness. The circuit court denied her any relief, and she has appealed.

Section 2121, Ky. St., enumerating causes for divorce from bed and board, provides: "Judgment for separation or divorce from bed and board may also be rendered for any of the causes which allow divorce, or for such other cause as the court in its discretion may deem sufficient." The principal question presented by this appeal is whether the conduct of the husband, shown by the record, justified or required the granting of a divorce to appellant from bed and board. It is argued for appellee that appellant staked her case upon the statutory provision of section 2117, Ky. St. (subsec. 2, applicable to the wife), viz.: "Habitually behaving toward her by the husband, for not less than six months, in such cruel and inhuman manner as to indicate a settled aversion to her, or to destroy permanently her peace or happiness,"--and that, if she has not sustained that charge by the proof, her petition was rightfully dismissed. Before entering upon a discussion of the main question involved, it occurs to us that the one of practice raised by appellee's argument is important, and needs settling. It is to be observed that the circuit court is not restricted to the statutory causes for granting divorces a vinculo matrimonii in granting a divorce from bed and board. He may, in his discretion, grant the latter separation for a less cause than those enumerated in the statute (section 2117). But, as said in Shrock v. Shrock, 4 Bush, 684: "Of course, the discretion thus conferred is not to be understood as arbitrary or unlimited, but a sound legal discretion, and only to be exercised for such causes as may be deemed sufficient, when considered with a just and reasonable regard to the legal rights and obligations of both parties." The plaintiff may rely upon the statutory grounds, or any of them, and may be seeking an absolute, instead of a qualified or limited, divorce. Yet the chancellor is not bound to look alone to the contention or pleas of the parties; indeed, contrary to our general practice, admissions or concessions of right by parties in their pleadings in this class of cases is denied generally by statute. Section 2119, Ky. St. Should the court conclude upon the hearing that, although the grounds for an absolute divorce are not fully sustained, yet that the interests of the parties, their infant children, and the good of society demand it, he might, under the statute conferring this jurisdiction, grant a divorce a mensa et thoro. In Evans v. Evans, 93 Ky. 510, 20 S.W. 605, the wife sued the husband for a divorce from bed and board, alleging two of the statutory grounds, one of them being abandonment for the statutory period of one year; the other, adultery. The evidence conduced to show that the husband had actually abandoned his wife but for four months. The husband had continued to live in the same house with the wife, though refusing to recognize her as his wife, or to live and cohabit with her, for more than a year. The court construed this to be technically an "abandonment," within the meaning of the statute. The evidence only "tended strongly to show an improper intimacy between the defendant and his co-respondent." The court, evidently to strengthen its position on the question of abandonment, added: "His [the husband's] conduct was of such a character as gave the wife just cause of complaint, and he is, therefore, the offending party. He was at least most certainly guilty of such conduct and abandonment as warranted the lower court, in the exercise of a sound legal discretion, in finding sufficient cause for a divorce from bed and board." Although the court found--and, we think, and have since held, correctly found--that an "abandonment" did not necessarily involve the leaving of the house occupied by the other spouse, yet it went further to hold that, even though that ground for relief was not fully sustained under the pleading charging it, the qualified divorce, under the provisions of section 2121, Ky. St. (Gen. St. c. 52, art. 3, §§ 6, 8), could be granted. A question of practice particularly analogous to the one being considered arose before this court concerning the allowance of alimony to the wife. It had been held that an action for alimony or support may be independent of a suit for divorce. Hulett v. Hulett, 80 Ky. 364; Hogland v. Hogland, 10 Ky. Law Rep. 241. In a suit by a wife for divorce under a prayer for general relief she was held entitled to recover alimony, although it had not been specifically asked for in the prayer of the petition. Wilmore v. Wilmore, 15 B. Mon. 49. In the later case of Tilton v. Tilton (Ky.) 29 S.W. 290, the court held that, while the facts proven may not justify a divorce, alimony may nevertheless be allowed; that, "if she was entitled to a separation from bed and board, or to an absolute divorce, the right to alimony followed under the prayer for general relief." There was such a prayer in this case. From these authorities, and from the context of the statutes quoted supra, we conclude that in an action for divorce, absolute or qualified, if the complainant does not show the existence of the fixed statutory grounds specifically relied on, yet, under a prayer for general relief, the court may grant a divorce from bed and board, if the facts shown, being necessarily and incidentally involved in the main charge, are such as warrant such an exercise of judgment in the "sound legal discretion of the chancellor."

The question, then, recurs to whether the allegations of the bill were proven, or sufficiently proven, to justify or demand such an exercise of power by the circuit court. It was shown that appellee was employed in a picture molding establishment at Cincinnati. His home was at Erlanger, Ky. He went daily in the morning to his place of business, returning generally on a train leaving Cincinnati at 6:30 p.m. In the fall of 1899 he began staying in the city of Cincinnati over night at times; at others not returning till the last train, which left Cincinnati at 8 o'clock p. m. His explanations to his wife were that his business detained him. She accidentally learned that this was untrue; that he was spending his evenings with a woman, who also lived at Erlanger, but worked in Cincinnati. On being questioned by his wife, he denied the fact of his meeting the woman, claiming it was a case of mistaken identity; that the woman he was seen with was an employé of the shop, etc. ...