199 Ky. 257 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing.
Marie Louise Gibson procured a divorce from Arthur F. Gibson in the Campbell circuit court on the ground of cruel and inhuman treatment. In the judgment of divorce defendant was. awarded a house at 627 Fifth
The plaintiff was forty-four years of age when she married about fifteen years ago. She owned property valued at about $6,000.00, part of which she had inherited and the rest of which she had accumulated from her earnings as a teacher. She met defendant at a boarding house where he was recuperating from a protracted spree after his release from a sanitorium. Within a short time they were married. They have no children. Defendant’s earning capacity is not large, and the evidence shows that his dissipations have seriously impaired his health.- He had no property at the time of his marriage except .an annuity of $25.00 a month which he was receiving from an estate in Great Britain. Shortly after his marriage this annuity was sold for $3,000.000, and $1,500.00 of that amount was invested in the house at Dayton. The balance, after the payment of some small debts, was utilized in purchasing the residence at Fort Thomas, which is now worth $7,500.00 or $8,000.00. After the marriage he worked periodically and applied his earnings to the support of himself and his wife. They received a small income from rents, and there is evidence to the effect that for a while she earned something as a substitute teacher.
The chancellor’s decision as to the property awarded defendant seems to be based on section 425 of the Civil Code. The evidence tends to show an investment of the proceeds from the sale of defendant’s annuity in that property to the extent of the restoration. The correctness of the judgment in this respect is therefore not questionable, unless it be on the ground that the property should have been subjected to plaintiff’s claim for alimony and to the payment of her attorney’s fee in this proceeding.
By section 900 -of Kentucky Statutes it is provided that in-actions for alimony and divorce the husband shall pay the costs of each party, unless it shall be made to appear that the wife i-s at fault and has ample estate to pay the same. It will be noted that, even if she has ample estate, unless she is at fault the costs must be adjudged
In respect to alimony in divorce proceedings it has been held that, where the wife has no estate and is granted a divorce without fault on her part, alimony will follow as a matter of right. Day v. Day, 168 Ky. 68, and authorities there cited. But it has never been decided in this jurisdiction that, where a wife has ample estate and the husband has none, she will be granted alimony as an incident to the divorce which she has obtained without fault on her part. If, however, the wife has not an ample estate and is granted a divorce without fault on her part, it is the duty of the court to award her such alimony as is consistent with a due regard for the rights and obligations .of the parties. The evidence shows that plaintiff is in delicate health and will be able in the future to earn little if any money. It also shows that she contributed to some extent to the support of herself and defendant during their married life. The defendant also has a small earning capacity. He was given by the judgment $3,000.00, which is what he had when he was married. Under these facts we think it fair that the plaintiff should be allowed alimony in the sum of $500.00.
The judgment is reversed and the cause remanded, with direction to the court below to allow plaintiff an attorney’s fee of $100.00 and the sum of $500.00 in alimony, and to credit the lien judgment of $1,500.00 on the Fort Thomas property by these allowances.