200 Ky. 736 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing on original appeal and affirming on cross appeal.
The parties, appellant and plaintiff below, and- appellee and defendant below, are colored people and are husband and wife. They were married in 1904 and lived and cohabited together till February 11, 1921, when the wife left her.husband and afterwards filed this equity action against him to obtain a divorce from the bonds of matrimony upon the grounds (a), of cruel and inhuman behavior towards her for not less than six months so as to indicate a settled aversion to her and to destroy permanently her peace and happiness, and (b), cruel beating and injury by the husband to her so as to endanger her life or bodily injury from remaining with him.
Defendant answered and denied the grounds relied on in the petition and in a second paragraph charged his wife with adultery and such lewd and lascivious behavior on her part as proved her to be unchaste. That paragraph of the answer was denied and, after proof taken and submission of the case, the court dismissed both the petition and cross petition, from which judgment the wife prosecutes this appeal and the husband has prayed and obtained in this court a cross appeal. There are no disputed questions of law involved, and the disposition of the case turns on the facts as disclosed by the testimony, and in giving our version of them we will not undertake a detailed statement of the testimony but refer to it only in a general way, since to do otherwise would be of no service to the parties or the profession.
At the beginning it may be stated that defendant is shown to be a man of considerable temper and possesses an unfortunate jealous disposition. For a number of years the parties seemed to have gotten along reasonably harmoniously and they each worked together and per
She visited her mother in Princeton, Ky., near Christmas, 1920, and during’ the visit her husband went there and inquired of his mother-in-law the whereabouts o£ his wife. He was informed that she was over at the house of a neighbor, and he went there but did not find her. He returned to his mother-in-law’s and said that he heard her voice and that of a man in a room in the house, but his wife about that time came out and he demanded the privilege of entering the room, to which his wife objected and shut the door and prevented him from doing so. She returned home and the two lived together until the day of separation. It is shown by the wife and her mother that no man was in the room with plaintiff on that occasion, and it is likewise testified to by the wife that at no time did she have intercourse with John Bird or other person. It is also testified to by plaintiff that defendant seriously objected to her joining some church society, and also objected to the extent of her participation in church affairs, and that he became very angry with her because of those matters. He admitted in his testimony his high temper and admitted other conduct on his part towards his wife that was by no means justified by any of the proven facts.
The marital relation is a sacred one and it should not be dissolved unless the grounds authorizing it are clearly established. Prom the testimony in this case we are not prepared to say that the statutory ground relied on by the husband in his cross petition has been proven; but while that is true, the record discloses a course of conduct on the part of plaintiff which no court could approve and which was wholly unbecoming a true and affectionate wife and, to say the least of it, furnished grounds for strong objections, as well as legitimate reprimands, by the defendant. But, however provoking the conduct of a wife might be, a husband is not authorized to inflict upon her corporal punishment, nor to adopt a systematic course of ill-treatment toward her, consisting of continual scolding and fault-finding and using unkind language toward her, and exhibiting a studied contempt for her, since such a course may manifest cruelty within the contemplation of the statute as effectually as corporal punishment, all of which is clearly pointed out in the case of McClin
After the taking of the proof an amended reply was filed pleading condonation of the wife’s alleged lewd and lascivious conduct. Not only at common law but under the provisions of section 2120 of the statutes, “Cohabitation of man and wife after knowledge of adultery or lewdness complained of, shall take away the right of divorce therefor, ’ ’ unless the continued cohabitation was under a promise from the guilty spouse to repent and refrain thereafter from such conduct and that promise is broken, in which cáse the original ground is revived. 19 Corpus Juris, page 83, paragraph 192, and page 98, paragraphs 203 and 204; and Muir v. Muir, 133 Ky. 125, 28 Ky. L. R. 1355, 4 L. R. A. (N. S.) 909. Where the condoned act is repeated, it negatives the idea of repentance upon which the condonation was -agreed to as was held in the numerous cases cited in note 97, page 88 in the reference to Corpus Juris.
That the defendant in this case condoned the conduct of his wife, relied on in his cross petition, is clearly established by the evidence. The condoning occurred after each successive act of misconduct by the wife, including the last one, which occurred immediately preceding Christmas in 1920, and there is nothing to show a repetition of that conduct after that time. On the other- hand, the proof of defendant’s conduct towards her as measured by the correct course hereinbefore recited, was wholly unjustifiable and, according to the MoClintock case, supra, and others which might be cited, authorized the granting of a divorce to the wife upon the grounds relied on in the petition.
Wherefore the judgment on the original appeal is reversed with directions to grant plaintiff the divorce prayed for in her petition; to adjudge her $200.00 alimony, and for proceedings consistent with this opinion, but on the cross appeal the judgment is affirmed.