104 Ky. 755 | Ky. Ct. App. | 1898
delivered the opinion oe the court.
Appellee instituted this action against her husband for-divorce and alimony, and asked that the custody of their infant daughter be awarded to her, and that provision for her support and education be made out of appellant’s estate. Upon final hearing, the court adjudged appellee entitled to divorce, and that she be allowed $75 per month as alimonjq and for the maintenance and support of the child, which was placed in her custody, and required appellant to pay the costs of the suit, including a fee of $250 to her attorney. We are asked to reverse the judgment allowing-alimony, and awarding to appellee the custody of the infant, on the ground that she was not entitled to divorce-under the proof, and that, consequently, no allowance-could legally be made for her support; and it is further-insisted that, even if alimony were proper, the sum awarded is excessive. This court has no revisory power over a judgment for divorce, and it is unnecessary to review the voluminous testimony bearing upon this question. It is enough to say that after a careful reading of the record, we do not feel that we would be justified in holding that-the judgment of the chancellor, decreeing a divorce, and awarding to the mother the custody of the infant, was unauthorized by the proof.
The only question here to be considered is as to? the reasonableness of the amount allowed by way of alimony, and for the maintenance and education of the infant.. The agreed statement of facts filed in the record shows «that the estate of appellant consists of four hundred! and.
Mr. Bishop in the recent, edition of his work on Marriage and Divorce (volume 2, section 1029), says: “The dissolution of a marriage by divorce is analogous to its dissolution by death. ... In a sort of general way, with variations after which it is not needful here to inquire, the common law gives the widow on the death of her husband one-third of his estate. So that, looking at this sort of analogy, if one-third of the husband’s income will leave
There has been no fixed rule laid down in this State for determining the amount of alimony which should be allowed; -but it seems plain, from the agreed facts as to appellant’s financial condition, that if he is compelled to pay the costs of this proceeding, and $75 per month as alimony and for the maintenance of the infant, in addition to his other pecuniary burdens, -he will have nothing left from his income for his own support or that of others dependent upon him, and that he will soon be a bankrupt. The allowance made is excessive. It would be better for both appellant and appellee if a lump sum could be awarded to • appellee in full settlement of her claim for alimony. Appellant would then know precisely what he had to pay, and appellee would be relieved from the financial vicissitudes which are likely to overtake appellant. But, in the entire absence of proof as to appellee’s age and expectation of life, such a sum can not be intelligently determined. Eor •
On December 9, 1898, the following response to the petition for modification of the opinion was delivered by Judge Burnam:
The allowance for alimony and maintenance of appellee indicated in the opinion rendered in this case is a substitute for the sum fixed in the judgment of the chancellor, and should be paid from the date of the rendition of the judgment in the lower court which was reversed. Appellant should be charged with the taxed costs of the appeal, but no additional attorney’s fees should be imposed upon him.