198 Ky. 173 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming on original and cross appeals.
In December, 1918, appellant, Elizabeth Duke, filed suit in the Kenton circuit court against appellee, John T. Duke, for divorce on the ground of cruel and inhuman treatment. More than a year afterwards appellee filed answer and counterclaim, denying the allegations of the petition and asking for a divorce on the ground of abandonment. The lower court granted -a divorce to appellant, and, in addition to allowing her to retain about $3,000.00 that appellee had previously given her, awarded her alimony in the sum of $50.00 a month, subject to the further orders of the court. Their residence at 410 Delmar place, Covington, Ky., was adjudged to appellee -but the household furniture was given to appellant. Appellant contends that it was error not to adjudge the residence to her, and appellee insists on cross appeal that the divorce was unauthorized and the award of alimony should be reversed.
The parties were married in 1894. Appellee, who is a train conductor for the C. & O. Ky. Co., is fifty-six years of age and appellant is six years his junior. Appellee is earning about $200.00 a month. When the parties were married they had nothing, but both of them seem to have
The testimony in respect to the grounds of divorce is conflicting. No useful purpose can be served by discussing it in this opinion. It is only necessary to say that the evidence does not sustain appellee’s claim but there is-evidence to support the decree for appellant.
The sole, ground of the original appeal is that the court should have awarded to appellant the residence at 410 Demar place. It is said that the title is in her name and that she should be given the.property or at least a life estate in it. Adams v. Button, 156 Ky. 693, and Stratton v. Wilson, 170 Ky. 61, are relied on to sustain the contention. Neither of those cases, however, is applicable to the question presented, for in neither of them was there a contest over the property between the husband and the wife in a divorce proceeding. Under section 425 of the Civil Code it is the duty of the chancellor in rendering a judgment of divorce to enter an order restoring
On the cross appeal it is insisted that the evidence did not justify the decree of divorce, and, if that be true, the judgment for alimony should be reversed. It is admitted, of course, that the decree cannot be reversed even if erroneously granted, but it isi contended that the evidence must be reviewed in deciding whether the award of alimony was proper, and if it is our conclusion that it was not proper to grant the divorce, the judgment, in so far as it awards alimony, must be reversed. We have already remarked that there is evidence to sustain the decree, which decision disposes of the main part of appellee’s contention. There remains only the additional contention that the award is too high. In answer to this contention we may say that appellee is earning a substantial salary, is shown to be a vigorous- man, and has been given by the judgment practically two-thirds of all that he and appellant have saved during their married lives. We may add that the industry and economies of appellant assisted to a material extent in the accumulation of this estate. In view of those facts, we conclude that the award is fair.
The judgment is affirmed on the original and cross appeals.