86 Ky. 32 | Ky. Ct. App. | 1887
DELIVERED THE OPINION OF THE COURT.
Appellee, the husband, instituted this action against his wife, appellant, for judgment of divorce from the bonds of matrimony, upon the alleged ground that a few days more than one year previously she, without, any cause, wrongfully abandoned him, leaving his residence, and going to the State of Missouri, where she then resided.
At the first term of the court after the institution of the action appellant, though only constructively summoned, entered her appearance and filed an answer, denying she wrongfully or without cause abandoned the plaintiff. She states that at the time of their marriage appellee sought her in the State of Missouri, where she then resided, and by reason of his representations she was induced to marry him, sell her property
Upon motion, the court struck out all that part of the answer which related to the conduct of appellee towards her, and the character and conduct of his daughters. Subsequently, appellee moved to file two amended answers, but her motion in each instance was overruled.
In addition to the allegations contained in the original, she states in the amended answers,, substantially, that after having left the residence of appellee, she sent
As this court has no power to reverse a judgment for divorce, the only question presented by this appeal for our decision is, whether, assuming the statements made by appellee in her pleadings to be true, she is entitled to alimony. Section 6, article 3, chapter 52, General Statutes, provides that “if the wife have not sufficient estate of her own she may, on a divorce obtained by her, have such allowance out of that (estate) of her husband as shall be deemed equitable, and be restored to the name she-bore before marriage if she desires it.”
Though the judgment rendered is that ‘ ‘ the plaintiff, William Davis, and the defendant, Sarah Davis, be, and they are hereby, divorced from the bonds of matrimony as husband and wife,” yet it can not be considered literally “a divorce obtained by her.” -For her answer and counter-claim were dismissed, and a divorce upon the ground of ‘ ‘ abandonment by the one party of the other for one year,” by the terms of section 1, same
We have thus an erroneous judgment, which can not be reversed by this court, nor annulled by the court which rendered it, except upon the joint application of the parties, that, nevertheless, if given its full effect, operates not merely to give appellee a divorce to which, as the record stands, he was not legally entitled, but to deprive appellant of alimony to which she was entitled, and that would have followed the judgment which the court ought to hare rendered. For, if it be true, as alleged by her, that he, after their marriage, habitually behaved towards her in such cruel and inhuman manner as to indicate a settled aversion to her, a statutory cause for divorce existed, and she was entitled to a judgment divorcing her from him. And the lower court ought to have permitted her amended pleadings filed, and the issue thus tendered to be tried.
Moreover, if it was true, as alleged by her, that his two daughters had bastard children, and continued as members of his family to be guilty of fornication, appellee Avas not only justified, but impelled by considerations that neither moral or municipal law requires to be disregarded, to leave the house of appellee and take
The question then arises whether appellant can be deprived of alimony, to which she was as this record is presented to us, entitled, simply because the judgment of divorce was not “obtained by her,” as should have been the case, but improperly and illegally obtained by the husband instead of her.
It seems to us, that while a judgment of divorce is not - subject to reversal, it was not intended, nor should the statute be construed, so as to permit such judgment to illegally and disastrously affect property rights of either party.
In the case of Hulett v. Hulett, 80 Ky., 364, this
To deprive the wife of alimony in a case like the one before us, in our opinion, would be contrary to the spirit and policy of the law. If, therefore, appellant left the domicile of appellee for the causes stated by her, she did what she should bd commended for and upheld in, and the erroneous judgment in favor of appellee should not operate to deprive her of alimony. The court, we think, erred in sustaining the motion to strike from the original as well as in overruling the motion to file the amended answers.
Judgment is therefore reversed, and cause remanded for further proceedings consistent with this opinion.