93 Ky. 510 | Ky. Ct. App. | 1892
delivered the opinion of the court.
This case presents a sad domestic history. The appellee, E. J. Evans, on June 25, 1889, sued her husband, the appellant A. H. Evans, for a divorce a mensa et thoro and alimony. They had lived together for nearly thirty years, and had a numerous family of children. The ground of action, as stated in the petition, is the abandonment by the husband of the wife, without fault on her part, for a year next before the bringing of the suit, and his living in adultery during that time with the appellant Lucinda Loving, who was also made a defendant, it being alleged that the husband had caused his land to be conveyed to her without consideration and in fraud of the rights of the wife.
The answer of the appellant Loving merely says that she denies each averment of the petition relative to her. It, under section 126 of the Civil Code, which requires a specific denial, constitutes no answer whatever. That of the husband, however, sufficiently traverses the petition; and in a second paragraph he avers that the wife agreed with him, in writing, on February 4, 1889, in consideration of three hundred dollars paid to her by him, not to sue him for maintenance within one year. A demurrer was properly sustained to this part of the answer.
By the common law every contract between husband
In other words, some contracts between them are enforced in equity, not' because of the agreement merely, but because the transaction, being just and reasonable, the wife has no equity outside of it. Here, the claim of the wife for alimony is met by the plea that she agreed, for a valuable consideration, not to sue for it for a year. Such a contract should not be upheld. . It is in violation of public policy; it is inconsistent with the full course of justice; it is not reasonable and just to the wife. The husband, during that period covered by the contract, might dispose of his entire estate. It would lilpely work a defeat of justice, and render the innocent and unoffending wife a pauper. It does not fully protect her rights, and should not, therefore, be enforced. Brown on Divorce and Alimony, page 270.
Seeking equity, however, she must, of course, render it; and she would, therefore, be chargeable with whatever she may have received under the contract. In this
More than six months after the filing of his answer, and when that length of time had expired after the pleadings in the case had been completed, the husband offered to file an amended answer setting up adultery by the wife, and asking an absolute divorce from her. He presented with it an affidavit stating that when he filed his answer he knew the facts stated in the amended answer, but did not then know that he could prove them, and had only recently learned that he could do so. It seems probable, if he then knew his wife had committed adultery, that he would also have known by whom he could prove it; and in view of the late day when the amendment was presented, and his knowledge of the matter stated in it when he filed his answer, we can not, to say. the least, hold that the chancellor in rejecting it abused that discretion which our practice gives him as to the filing of amended pleadings.
This court has no revisory power over a judgment of divorce, but in determining whether alimony has been properly allowed it will enter into a consideration of the entire case. It is said that the averments of the petition are not proven; that it avers an abandonment for a year, while the evidence shows that the husband léffc the wife but about four months before the bringing of the action.
An abandonment for a year without fault upon the part of the complaining party is ground, under our statute, for an absolute divorce; but this action is for one a mensa et thoro, and our statute provides: “ Judgment for. separation, or divorce from bed and board, may be rendered for any of the causes which allow divorce, or for
The evidence, in our opinion, shows an abandonment by the husband for a year. It is true he continued to live at the same place where his wife resided until about four months before the institution of her suit; but the testimony shows that for a year or more he had refused to recognize her as his wife or to live and cohabit with her This amounted to an abandonment, although they slept beneath the same roof.
He says he left her because of her ungovernable temper and abuse of him, but the quarrels evidently arose because of his attentions to his co-respondent. They tend strongly to show an improper intimacy between her and the husband. His conduct was of such a character as gave the wife just cause of complaint, and he is, therefore, the offending party. He was at least most certainly guilty of such conduct and abandonment as warranted the lower court, in the exercise of a sound legal discretion, in finding sufficient cause for a divorce from bed and board.
"While the court did not allow the husband to set up the plea of adultery by the wife, yet the testimony relative to it is to be considered upon the question of alimony. The only evidence in this respect which we regard as worthy of any consideration is that of one witness, who testifies, in substance, that the wife offended with him.
So far as this record shows he was an entirely willing witness. He does not appear to have been attached and made to testify. It is not even shown that he was subpoenaed as a witness. He was entirely willing to not only destroy the wife, affix a stain to her children and family, but also to testify to conduct degrading to and highly
The testimony as to the general reputation of the wife as to being high tempered was incompetent. The general reputation of either party for good or bad temper
Complaint is also made because the testimony relative to the general reputation of the wife for unchastity was excluded. In civil actions evidence of general reputation rs not admissible unless the proceeding be such as to put the character of the party directly in issue. The charge was adultery by her. She should not be convicted of such an act upon presumption. It was not a proceeding which put her general character in issue, and the admission of such evidence for the purpose of raising a presumption of her guilt would lead to more of uncertainty and disadvantage than benefit in the administration of justice. (Humphrey v. Humphrey, 7 Conn., 116; Berdell v. Berdell, 80 Ill., 604; Washburn v. Washburn, 5 N. H., 195.)
No exception appears to have been taken, however, to the exclusion of this evidence, and error, if any, was therefore waived. (Civil Code, sec. 589; Terrill, &c., v. Jennings, &c., 1 Met., 450.) We have considered it because counsel have discussed it at length.
An order of continuance in the case adjudges that “ the costs of this case” shall be paid by the husband. An order of allowance of alimony, pending the suit, recites that it is to be paid to Mrs. Evans by “the plaintiff.” It is evident that in both instances there was a clerical mistake. The meaning is plain. In the one case it was the cost of the continuance, and in the other it plainly meant that the husband was to pay the allowance. Besides, he was, in fact, liable for all the costs of the action, and the final judgment reads correctly as to the payment of the alimony.