143 Ky. 666 | Ky. Ct. App. | 1911
OPINION op the Court by
Affirming.
This suit was instituted in tlie Fayette circuit court by appellant against her husband, Fern K. Bottom. She prayed in her petition for an absolute divorce, for the custody of their one child, a girl seven years of age, and for temporary and permanent alimony. The causes of action alleged in the petition were, first, living in adultery; second, habitually behaving toward her for not less than six months in such cruel and inhuman manner as to indicate a settled aversion to her and to destroy permanently her peace and happiness. Appellee answered denying the grounds of divorce, and made his answer a cross-petition against appellant alleging, first, that appellant had abandoned him; second, that she had been guilty and such lewd and lascivious behavior as proved her to be unchaste.
A great deal of proof was taken by both parties, much of which was directed to the question of property owned by the parties and the business of appellee as bearing
Each party claims that the court erred in not grant-Mg them a divorce from the bonds of matrimony, and complain of the divorce granted. Appellant further complains that the court erred in not awarding her the custody of the child, but appellee is satisfied with the disposition of it. We will first consider the charge by appellant to the effect that appellee “lived in adultery with another woman,” and the substance of the proof introduced to support it. Appellant introduced first as a witness Alice Yon Phuel, a woman of bad repute, who lived in Louisville, Ky. She stated that she had met appellee upon one or two occasions in the city of Lexington while she was in that city for two or three weeks with Myrtle Hartman, a woman of like character; that she with another woman first met him upon the street and then for a few moments at Ms saloon, from which they went to another saloon and then to the house of Hartman in company with her and a colored woman who worked at the same place. She made it known that ap-pellee did not have improper relations with her and that she saw none with the Hartman woman (they were the only women residing in the house), but she left the impression that appellee remained in the room with the Hartman woman. Appellant then took the deposition of Myrtle Hartman and this negro woman who worked
Appellee’s counsel complains that the court erred in failing to grant him a divorce. In addition to what we have stated with reference to appellant’s conduct, the testimony shows that she remained in Cincinnati for a week at the Hotel Princeton; that she, with another woman by the name of Mrs. Laura Wedge, attended the races at Latonia daily and made bets. This Mrs. Wedge left Lexington a few days before appellant did, but while there she lived with a man she claimed was her
“June 21, ’09.
“Dear Louise:—
“Received all your letters, and dear, was certainly delighted to hear from you, and very sorry you do not. like N. Y. — but sweetheart, N. Y. is a large city, and I am not surprised at your not liking it. Say, sweetheart, do you want to come back to Cincinnati? .You need not be worried, for everything is all O. K. There hasn’t been any one looking for you and I am sure you could stay here all O. K. until things were so we could leave together. Now, listen Louise, if you can not come, why if I can I will send you a ticket this week so you can come back to Lonnie for I am just crazy to see you, se please answer this letter as soon. as you receive it, for dear, I will get you a place to stay all O. K. and if you have to work, which I hope you will not, you will be with me, and we will work together. Now, listen, sweetheart, I mailed you a letter in care the Navarre. Did you get it? But it does not make any difference, sweetheart, just write me and tell me you want to come back .to me, and I will sure and try to send you a railroad ticket from N. Y. to city, and some money with it, but sweetheart, if you want to come before that you can get the money by letting some one hold your jewelry, but do not do that, for dear, I will get the money some way and send it to you, so you can come, for dear, I do not think I will come, for sweetheart I am going to make*673 some money before the meeting closes, sure, and then you and I will go away and I will see you get all O. K. if you come and you can go over in Dayton, Ky., or Newport and board so they would not have any idea where you were, so dear, please answer as soon as you receive this. Tell Mrs. Wedge I haven’t forgot her, and I sure will sent the ten to her. Martie left for Hamilton, Canada, tonight. Well, sweetheart, I will say good by, and I only wish I was with you from your
“Loving sweetheart,
“Lon C. Elliott.
“To Stag Hotel, Cin., 0.”
We have positive evidence that she received these letters from Elliott and that she wrote to him, as he -acknowledges in his letter that he received all her letters and expressed himself as being “delighted” with getting them. So it appears that appellant made Mrs. Wedge her associate and friend; that she received the attention of Elliott, a single man; that she left her home without notice to any one except Mrs. Forsythe and remained away for three or four months under an assumed name, keeping her address from all except Mrs. Forsythe and Elliott. All this proves to our minds such lewd, lascivious behavior as proves her to be unchaste. There is no direct proof of adultery on her part; Elliott disclaimed that in his testimony, but all the facts and circumstances appearing in the testimony, show otherwise; at least, proves her to be unchaste. We are powerless, however, to give appellee any relief as he did not appeal or ask a cross-appeal.
Both parties complain of the divorce .from bed and board. The pleadings authorized the court to render this judgment. Section 2121, Kentucky Statutes, provides in part, as follows:
- “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 court determined that the testimony was at least sufficient to authorize a separation from' bed and board as there were no longer any prospects of their resuming marital relations after an exposition of their conduct as set out in this record.
■ For these reasons^ the judgment of the lower court is-affirmed. ■ . ■ ¡-,....