165 Ky. 499 | Ky. Ct. App. | 1915
Opinion of the Court by
Reversing.
Plaintiff, Florence E. Benedict, brought this action .against her husband, William A. Benedict, for divorce and alimony. The chancellor granted her a divorce and awarded her alimony in the sum of $35.00 per month. The defendant appeals.
While .this court has no revisory power over the judgment of divorce, we may review the facts of the case for the purpose of determining the propriety of the chancellor’s .action in .awarding alimony. Griffin v. Griffin, 154 Ky., 766, 159 S. W., 597; Beal v. Beal, 80 Ky., 675; Evans v. Evans, 93 Ky., 510; Sebastian v. Rose, 135 Ky., 197; Patrick v. Patrick, 30 Ky. Law Rep., 1364, 101 S. W., 328; Civil Code, Sec. 427.
The facts are as follow's: Plaintiff and defendant were married. November 14th, 1911. At that time defendant was an assistant engineer in the employ of the city of Louisville and earned a salary of $100 per month. Immediately after their marriage plaintiff and defendant went to live with the bride’s parents and paid board at the rate of $35 per month. Defendant was afraid that plaintiff would not marry him if she knew he was not saving anything or was in debt.' Before the marriage he represented to her that he had saved $200 and had borrowed '$100 and had loaned the $300 at eight per cent, interest. During the first five or six months
“I found out when it came time to draw the next month’s salary (i. e., the February salary), he kept put1 ting me off about taking me up there with him. I knew the other salaries had been paid, and I knew he was deceiving me — that the salary had been drawn. I saw then that it was no use for me to try any more; that he utterly disregarded my feelings; that he knew this humiliated me and made me sick to think he was making as much money as he was and was drawing the salary and was not paying the debts he said he would. ’ ’
Defendant says that in order to get the money early in the month, and before the city payrolls were passed, he had made arrangements with the loan firm of L. Simons.& Company. About the first of March, 1913,
“It is simply that he.utterly disregarded my feelings about paying the debts and about .making new debts continually. ’ ’
The evidence further shows that during their entire married life defendant was patient, kind and attentive to his wife, and never left-her, except on two occasions, when he did so with her consent. It further appears that after plaintiff compelled defendant to leave, he made overtures for a reconciliation and tried to get his pastor and friends to intercede with plaintiff in his behalf. These overtures on defendant’s part were rejected by plaintiff, who says that she had made up her mind that she did not care to live with a person who was going to deceive her.
The statute authorizes the granting of a divorce to a wife for a confirmed habit of drunkenness on the part of the husband of not less than one year’s duration, accompanied by a wasting of his estate and his failure to make suitable provision for the maintenance of his wife or children. Section-2117, Sub-section 1, Kentucky Statutes. Plaintiff’s case was not predicated on, nor could it have been predicated on, this statute. While it may be that defendant, for a while, wasted his estate by gambling, it does not appear that he had a confirmed habit of drunkenness. On the contrary, he was always sober.
Indeed, the only ground relied on by plaintiff is the defendant’s habitual behavior towards her, for not less than six months, in such a cruel and inhuman manner as to indicate a settled aversion to her or to destroy permanently her peace or happiness. Section 2117, Subsection 2,-Kentucky Statutes. It is insisted for plaintiff that the divorce was properly granted, because the defendant’s conduct in gambling away his money, in fail
Judgment, in so far as it allows alimony, reversed and cause remanded, with directions to enter judgment in conformity with this opinion.