283 S.W. 952 | Ky. Ct. App. | 1926
Affirming.
By the pleadings herein, petition to surrejoinder, inclusive, appellee, plaintiff below, sought to recover from his wife, appellant, defendant below, certain bonds of the value of $8,000.00, and she sought to recover from him alimony upon the ground that he had abandoned her and failed to support her.
It appears from the record that they lived together approximately 25 years after their marriage. He is *634 now 45 years of age and she is 43. They have two living children, both of whom are over 21 years of age, the son being self-supporting, and the daughter being married. For the three years next before the separation appellee earned a salary of $5,000.00 per year, and for several years prior thereto $3,600.00 per year. Out of his earnings they had saved $12,000.00. With his knowledge and at his instance $4,000.00 of this sum had been invested in real estate, the title being taken in her. When the proof was taken that real estate was renting for $67.00 per month. The other $8,000.00 was invested in Kentucky Title Savings Bank Trust Company real estate mortgage bonds. They were kept in a joint safety box in the vaults of the trust company. She took them and placed them in another box rented by her to which she alone held keys. During the pendency of the action four of the bonds matured and were cashed by her. Something over $3,800.00 of their proceeds was paid into court, she having spent the other. While the evidence seems to establish that the appellant obtained possession of the other $4,000.00 in bonds, they were not produced in court or accounted for. At the time the proof was taken appellee was out of employment and was earning nothing.
Appellee's effort herein to have adjudged to himself restoration of the real estate, title of which was taken in appellant, under the provisions of sections 425, Civil Code, and 2121, Kentucky Statutes, was properly refused. Restoration of property, in the states of cases authorized, may not in any event be adjudged until a judgment for divorce a vinculo is rendered. By this action neither party sought an absolute divorce and of course none was granted. See LaWarre v. LaWarre,
Appellant complains because the chancellor did not adjudge her a monthly allowance of at least $150.00 as alimony. She appears to have title to real estate purchased with the savings from appellee's earnings from which she receives $67.00 per month. She also appears to have possession of $4,000.00 in bonds likewise so purchased which were left in her possession by the judgment rendered herein. Aside from the $3,800.00 paid into court by appellant, which the chancellor adjudged to appellee, he appears to own no other property of consequence, and at the time the judgment was rendered and for some time prior had been out of employment. Under *635 these facts this court concludes that the chancellor properly refused a monthly allowance as alimony.
Appellee, on the cross-appeal, complains that the chancellor erroneously refused to adjudge that he was entitled to the $4,000.00 in bonds adjudged to be in the possession of appellant. The evidence on the subject in the record is scanty, but it satisfactorily establishes that appellee abandoned his wife without cause. Two of his letters established that fact beyond question. The responsibilities of the marriage relation may not be thus easily set aside. The judgment herein seems to assure that for the time appellee's obligation to support his wife will be met. Appellee is now in the prime of life. Through his knowledge of mechanical engineering he is possessed of a capacity to earn money above the average. While without analysis it would seem that since she has the title of the real estate worth $4,000.00 and $4,000.00 in bonds, and he is left with only the $4,000.00 returned to him by the judgment herein, he has been harshly dealt with, when all or the circumstances surrounding the parties are considered we reach the conclusion that the chancellor's judgment is sound and should not be disturbed. Appellee is obligated to support appellant. An adjudication as to the right of either to have restored property acquired by the other by virtue and in consideration of marriage relation can not be had until a decree divorcing them a vinculo is entered. If either prosecutes to judgment an action for divorce and it is therein sought to adjudicate between the parties as to their property rights the question of alimony may be reconsidered and all the questions then determined in the light of the facts then appearing.
Judgment affirmed.