| Ky. Ct. App. | Feb 18, 1944
Affirming.
Since we are without power to reverse a judgment of divorce, KRS 21.060, and it is not contended that the $2,000 awarded the appellee, Florence Bobbitt, as alimony, or that the fee allowed her attorney, was excessive, measured by the size of appellant's estate, the questions presented for determination by this voluminous record may be narrowed to the single inquiry: Was appellant more at fault than appellee in bringing about the conditions which resulted in the disruption of their marriage? Luke v. Luke,
The appellant was sixty-seven years old and the appellee fifty at the time of their marriage on March 1 1939. Both had previously been married, and appellant's main fault seems to have been an undue susceptibility to the charms of the opposite sex. He was the owner of an apartment hotel or rooming house, which, appellee, after their marriage, helped him to manage; and the record is replete with accounts of his amorous efforts, the most successful of which were made on the premises. Some consisted merely of the solicitation of sexual favors; others, of the accomplishment or near accomplishment of his desires. Taken at its face value, this testimony falls far short of sustaining the charge contained in the petition that appellant had lived in adultery with another woman. On the contrary, his infidelities were casual and diversified. Baker v. Baker,
Appellant denies the accusations, and seeks to explain the testimony of the women approached and the one who testified that he accomplished his purpose, by saying that on the two occasions he was discovered in women's rooms, he was there on wholly innocent missions, and by attempting to prove that he had been "framed" and the witnesses bribed by the appellee to testify falsely in order that she might obtain his property. However, we cannot say that he succeeded in thus exculpating himself. True it is that, with few exceptions, the women immediately concerned were of bad character, but, so also were most of the witnesses by whom appellant attempted to prove the alleged "frame-up" and bribery. Since the good character of appellee's witnesses by whom she attempted to prove appellant's adulterous acts was not proven, their testimony would not have been sufficient to authorize the court to grant a divorce on the ground of adultery, KRS
Thus, without relating any more of the testimony, our reasons for refusing to disturb the judgment appealed from are made manifest. We are not infallible, and in the absence of omniscience, cannot say that the witnesses for appellee lied in describing their experiences with appellant. It is true that appellee, not unnaturally, kicked and cuffed appellant rather severely when she caught him in the room of the Disney woman, and that there is evidence that she was unduly anxious to procure a deed to his property while he lay ill as the result of an automobile accident; but to find any substantial fault with appellee, we would have to believe the testimony of discredited witnesses that she plotted the entrapment of her husband and suborned testimony against him, since these were the only charges made against her in the testimony which seriously reflected upon her integrity. Even if we should believe that appellant's casual infractions of the moral code could be classified as venial and insufficient to entitle appellee to the absolute divorce awarded her, we, as before stated, would be powerless to correct the chancellor's error in granting it. Our only certainty gained from reading the 566 pages of testimony is that it would be impossible for the parties to live together. It follows that we could not have more than a doubt as to the correctness of the chancellor's finding, which, though unexpressed except by the relief granted, must have been that appellee's fault, if any, was materially less than that of appellant.
Judgment affirmed. *292