Boreing v. Boreing

| Ky. Ct. App. | Jan 13, 1903

Opinion or tiie court by

JUDGE BARKER

— Reversing.

The appellee, Vincent Boreing, and the appellant, Sarah R. Boreing, were married in Laurel county, Ky., in 1889, and lived together as man and wife until 1893, when appellant left appellee’s home, and has lived separate and apart from him, without cohabitation, ever since. After leaving appellee, appellant departed from the State of Kentucky, and spent the greater part of the time intervening between said date and the time when this action was instituted in various parts of the United States, teaching school and doing clerical work in' order to support herself. She finally returned to this State, and on the 23d day of February, 1901, instituted this action against her husband, praying for a divorce from the bonds of wedlock with him, upon the ground of their having lived separate and apart, without cohabitation, for five consecutive years next before the institution of the action. She further alleges in her petition, among other things, that she was without any estate or income, was out of employment or means of support, and that the appellee, her husband was the owner of a large estate, from which he derived, together with his avocations, a large annual income; and she prays for alimony, maintenance, and costs, including reasonable counsel fees. Upon the trial of the case below, the chancellor divorced appellant from appellee a vinculo matrimonii, but refused to award her either maintenance or alimony, from which latter part of the decree she is in this court on appeal.

We think the allegations of the petition are sufficient to warrant both the claims for divorce and alimony; but, if there be any weight to the contention that it was necessary,' in order to maintain her claim for alimony, that she should have alleged that the separation was without her fault, it is clear that appellee’s specific allegation in his answer that the separation was without his fault cured such defect.

We do not think that appellant lost her residence in Kentucky by the fact that, in order to maintain herself, she left the State; she was still the wife of appellee, and his residence was her residence, and continued to be so during all of thp time that she was absent. The separation commenced in Kentucky, and, if it be necessary, in order to obtain a divorce on the grounds relied upon in this action, that her home should have been in Kentucky during the five years specified, we think that the facts in this case show that appellant had the necessary residence here

The appellant was not competent to testify in this case, and the exception to her deposition was properly sustained.

The record shows a lamentable state of affairs existing between the parties hereto. They are both people of high standing, culture and social position, and it is a matter of deep regret that their marital life should have been so unfortunately disrupted; Appellant is shown, by all of the evidence in this case, to be a woman of the highest education and refinement, deeply religious in her life, gentle in her manners, and considerate of all with whom she came in contact. When she went to the home of appellee as his wife, she seems to have been a happy, bright, and cheerful woman. She took up her household duties at once, and discharged them, during the time that she remained in the house of appellee, faithfully and well. All of' the witnesses agree upon this, whether they have deposed for her or for her husband. The household work cast upon her was hard and onerous, and she often performed domestic labor which must have severely taxed both her strength and patience; but this record fails to show that she at any time complained of or repined at the hardness of her lot. We are not disposed to impute any blame to appellee for this state of affairs. It may have been (and he is entitled to the presumption, in the absence of evidence on that point) that there was great difficulty in obtaining household help in London, and that it was the result of his inability to obtain domestic servants that his wife had to perform the severe duties of which the witnesses speak. Perhaps we could not better illustrate her self-sacrificing fidelity to her husband’s interest than by relating that the evidence shows that upon one occasion, when there was a.political convention being held in London, before which her husband was a candidate for nomination, his wife left the side of her dead mother, where she was watching, in order to superintend and assist in preparing dinner at his home for the entertainment of his political friends. It does not appear that this was done at the request ofappellee, and we freely acquit him of any insistence that she should perform this work under these sad circumstances; but the fact does show how loyal she was to him, and how far she would sink her own sorrow in order to further his interest. The appellee is shown by the evidence in this case to be a man of a high order of intellect, that he possesses great energy and financial ability, and that during all of the time that he and appellant lived together he was an exceedingly busy man. He had very large interests in various enterprises. He was a speculator in timber and coal lands in Eastern Kentucky, was president of a bank, director and large stockholder in coke and coal mining companies and other large corporations, and was absent from home a large part of his time. The evidence shows that, while he was never guilty of physical violence towards the appellant, he treated her constantly with cold indifference and neglect, that he was habitually rude to her lady visitors, and that his conduct greatly humiliated and depressed her. Appellee would leave home and be gone for several weeks at a time, without having informed his wife of his proposed departure, and upon his return after such prolonged absence would greet her with as little warmth of affection as if he had returned from an absence of a few hours only. We do not believe that appellee ever stinted appellant in money matters, or that she ever lacked, by reason of his fault, anything to' make her physically comfortable; but we do believe that his conduct towards her was so rude, cold, negligent as to make it apparent that she had lost his love and affection. A woman as gentle, faithful, and loyal as this record shows appellant to have been is entitled to something more from her husband than food, raiment, and shelter; and that to such a woman, living, as the wife of appellee, under the conditions shown by this record, was intolerable. This court is of opinion that appellant had the right to leave the fireside of appellee when she found that she had lost his love, and realized that she was his wife in name only.

The evidence in this case shows that appellee himself realized that he had not treated the appellant properly, as he confessed to one of his own witnesses. It shows that appellant is destitute, and without any means of support, and we believe that she is entitled to a reasonable alimony. It is not necessary, in order to reach this conclusion, to hold that, where the wife is destitute, she is entitled to alimony without regard to whether or not the separation was the result of her fault, where the judgment of divorce is based on the five-years statute, although this court in .the case of Newsome v. Newsome, 95 Ky., 383" court="Ky. Ct. App." date_filed="1894-03-17" href="https://app.midpage.ai/document/newsome-v-newsome-7132948?utm_source=webapp" opinion_id="7132948">95 Ky., 383 (15 R., 801), 25 S.W., 878" court="Ky. Ct. App." date_filed="1894-03-17" href="https://app.midpage.ai/document/newsome-v-newsome-7132948?utm_source=webapp" opinion_id="7132948">25 S. W., 878, so held. In that case it is said: ' “But either may sue for and obtain a divorce by simply alleging and proving the fact they had lived apart, without any cohabitation, for five consecutive years; no judicial investigation respecting cause of separation, nor inquiry as to who is in fault in meaning of the statute, being required in order to determine the right to divorce. It therefore seems to us, giving the statute a reasonable construction, that the husband is required, in a case like this, to pay the costs of each party, without inquiring whether the wife is in fault. And as it is well settled that an allowance for services of the wife’s attorney, when legally authorized, may be taxed as costs, and no complaint is or could be fairly made that the amount is excessive, it was not error to make it. It seems to us equally manifest that the provision of the statute denying alimony to the wife except on a divorce obtained by her was intended to apply in that class of cases where a divorce obtained by the husband involves fault of the wife; not in cases like this, where, as either may maintain the action, it is not a material or legitimate inquiry, in determining the right, who is in fault.” It seems to us that the case at bar can not be distinguished from the case of Irwin v. Irwin, 96 Ky., 318" court="Ky. Ct. App." date_filed="1894-12-08" href="https://app.midpage.ai/document/irwin-v-irwin-7133042?utm_source=webapp" opinion_id="7133042">96 Ky., 318 (16 R., 657) 28 S.W., 664" court="Ky. Ct. App." date_filed="1894-12-08" href="https://app.midpage.ai/document/irwin-v-irwin-7133042?utm_source=webapp" opinion_id="7133042">28 S. W., 664, 30 S.W., 417" court="Ark." date_filed="1895-03-16" href="https://app.midpage.ai/document/may-v-mcgaughey-6543388?utm_source=webapp" opinion_id="6543388">30 S. W., 417, where this court, in speaking of the conduct of the husband toward the wife as constituting the basis of her right to a separation from him, say: “There never was any act of violence committed by the husband upon 1he wife, nor any threats of violence made; but such cruelty may be inflicted upon the wife by exhibitions of want of affection and a disregard of the marital relations as, in the results or effect on the wife, would exceed in punishment any blow that might be inflicted upon her person;

The coldness and indifference on the part of the appellee toward his wife for several years was such as to render her life almost intolerable. And, while his conduct can not be said to be inhuman, it bordered on a degree of cruelty that must have tended to destroy her peace of mind and render her an unhappy woman. Upon the principle thus announced this court affirmed a judgment divorcing the parties a mensa et thoro, and awarding the wife maintenance; under this judgment the parties lived separate and apart for five years, when without new provocation upon the part of the husband, they were divorced a vinculo matrimonii and alimony awarded the wife. 105 Ky., 632" court="Ky. Ct. App." date_filed="1899-02-11" href="https://app.midpage.ai/document/irwin-v-irwin-7134081?utm_source=webapp" opinion_id="7134081">105 Ky., 632, 20 R., 1761, 49 S.W., 432" court="Ky. Ct. App." date_filed="1899-02-11" href="https://app.midpage.ai/document/irwin-v-irwin-7134081?utm_source=webapp" opinion_id="7134081">49 S. W., 432. The court in the case cited ratified and approved the wife’s leaving her husband for the precise character of mistreatment of which appellant is complaining, and we think her claim is as meritorious as that of the wife in the Irwin case.

We are not impressed with the offer of reconciliation made by appellee. The circumstances and details of this transaction stamp it as an act of strategic diplomacy, rather than a proposition of reconciliation flowing from a loving and contrite heart.

In regard to the amount of the alimony to be allowed, we think that, considering the estate of appellee, the social standing of both himself and his wife, his ample fortune, and his general financial ability, there should be awarded the wife an allowance of such an amount as will, if invested with reasonable prudence, produce- an income sufficient to support her comfortably, and which will not be disproportionate to appellee’s fortune. The record does not show with sufficient clearness the wealth of appellee, and upon return to the court below the case should be referred to a commissioner, who should hear evidence and report to the court a lump sum to be allowed appellant as alimony,»having reference to the principle in regard thereto herein enunciated.

We think the counsel for appellant should he allowed the sum of $750 additional for their services — $500 for their services in this court, and $250 for their services in the court below — to be taxed as costs.

Wherefore the judgment is reversed for proceedings consistent with this opinion.