202 Ky. 55 | Ky. Ct. App. | 1924
Opinion .op the Court by
Reversing.
Herbert Hawkins and Geneva Riley were married in Minneapolis, Minnesota, December 25, 1915, and shortly thereafter left on an extended bridal tonr to Havana, .Cuba, via Chicago, New Orleans and Jacksonville, Florida, and after remaining there a few days started on their -homeward journey, with Paducah, Kentucky, as the objective point, at which place appellant had lived for a number of years; but upon reaching St. Louis, appellee expressed a desire to* return to Minneapolis, where her mother lived, in order that she might visit her before joining appellant. She remained in Minneapolis some two weeks, and upon reaching Paducah they rented an apartment, residing there until a home was finished, the erection of which appellant had begun shortly after the marriage, and when completed some months later moved there. It seems they at once started on an exceedingly rough and tempestuous matrimonial voyage, which, however, from the evidence really began the day after the marriage in Minneapolis and continued with but few interruptions until their divorce some years later.
In her testimony appellee complains that appellant began to mistreat her very shortly after their marriage; that he was cruel, brutal and vicious; that he had an ungovernable temper, and when aroused would frequently choke, bruise and assault her with apparently no provocation whatever, by reason of which she was made exceedingly nervous and almost a physical wreck. Her testimony is substantiated in some details by her mother, who lived with them during a considerable portion of their married life, and she was further corroborated to a mild degree by Mrs. Mae Eoark, a friend who resided in Paducah near her.
In an endeavor to contradict the testimony of appellee and her mother (Mrs. Mae Eiley) and of Mrs. Eoark, appellant, besides his own evidence, introduced a number of citizens in Paducah who had known him the greater part of his life, also three servants who had been employed in and about the premises for a number of years; and after an exceedingly careful review of the depositions filed and an analysis of the testimony offered, we are at rather a loss to comprehend upon what the court relied in granting a divorce in this action.
Prom her own testimony, as well as that of numerous witnesses, it would appear to us that appellee had no other motive in view in marrying appellant than to secure every ease, luxury and comfort obtainable for herself and family and to give to her husband as little affection and pleasure and association as possible. In her deposition
It appears that she never lost an opportunity to leave appellant’s home with others and visit different sections of the country, especially if this could be accomplished without the apparently unpleasant society of her husband, who, it seems, would always be relegated to the rear for more congenial company, many of whom were not of a character pleasing to appellant. Appellee complains most bitterly of an incident that happened on the street in Paducah, when she and her mother were approaching a car that they had left ,at the curb-. Appellant appeared upon the scene and entered the car with the apparent design of driving away, but before he could do ¡so appellee’s mother jumped into the car and demanded that he -stop, and upon his failing to obey, she fell upon him and began to scratch and claw him in such a tigerish manner that his face was bleeding when he drove to- the police station with the intention of having her arrested, but friends induced him to desist, and he then sent her home in a taxi-cab; and in explaining this episode says he had discovered that his wife, contrary to his wishes or knowledge, had picked up some traveling salesmen on the street and had driven far into the country alone, and
As to other alleged cruelty inflicted upon her by appellant in Chicago, where they were visiting, she is not corroborated by the testimony of her own witness, Jack Garry, in rebuttal (page 269, transcript).
It is clearly shown that appellant was utterly reckless and lavish in his expenditure of money wherever and whenever it was conducive to the happiness or pleasure ■of appellee. True she complains that at one time he failed to give her $2,000.00 that she might go, unaccompanied, for an extended tour of France; but, nevertheless, she admits that later he did take her for a trip over the entire west and north, which he testifies cost him nearly $5,000.00. It is further shown that after taking her to the beautiful home in Paducah he furnished it in the most costly and lavish style, keeping from two to three servants and two .automobiles, which seemed at all times to be at her disposal. The linens were of the finest, and from the number of oriental rugs she describes as covering the floors, the splendor of their establishment is apparent. From her testimony it is shown that she had unlimited credit in Paducah and Chicago, and appellant’s gifts to her were numerous and costly. Shortly after they were married, besides many other articles of wearing apparel, he gave her a fur coat costing $1,200.00, and at other times jewelry amounting to $7,000.00, although appellee values it at a lesser amount. It is shown, too, that appellant was kind to appellee’s brother and exceedingly generous in his dealings with her mother, affording her a home a great part of the time and surrounding her with a degree of comfort and luxury to which it might appear neither she nor appellee had been accustomed and certainly failed to appreciate. Appellant further testified that his wife at times drank to ex
From parts of appellee’s own testimony it appears that she often delighted in saying and doing things embarrassing, humiliating and annoying to her husband, and upon one occasion in. his absence shipped his dog's, of which he was very fond, to her brother in Washington, and refused absolutely to advise him of their whereabouts, denying any knowledge of them; and in all of these acts she seemed to find a willing and dependable ally in her mother. Finally, upon reaching the decision that she would enter suit for divorce and leave his home, she went to a hotel in Paducah, but returned shortly thereafter, when he was absent, with two automobiles, and carried away a great number of articles, including oriental rugs, silverware, linens and other household articles, claiming that they had been given to her and that she did not intend to return them, but exhibited a remarkable inconsistency when she took a bath robe— the only thing, as far as the evidence shows, she had ever given him — offering in explanation that, as she had been the giver, it was her inherent right to claim it.
In view of all the foregoing evidence, which we have carefully considered and weighed, and placing the most charitable construction upon the conduct and acts of appellee as gleaned from her own testimony, as well as others in her behalf, we can reach no other conclusion than the inevitable one that the chancellor erred in granting a divorce to appellee and in allowing alimony in any •sum.
In Ford v. Ford, 182 Ky. 135, the court said:
'“While the Court of Appeals cannot disturb a decree of divorce, it has jurisdiction to examine the facts of the case in order to determine the wife’s right to alimony, as well as her right to the maintenance and custody of her children.”
And in Burton v. Burton, 184 Ky. 268, it is said:
“Although the Court of Appeals cannot reverse a judgment of the circuit court granting a divorce, it may review the judgment and facts upon which the divorce was granted.”
•See also Griffin v. Griffin, 173 Ky. 636, 191 S. W. 458.
After viewing the -demeanor of appellee in its most favorable light, we feel that her conduct was such as not to merit either a divorce or alimony; but as appellant did not complain of the amount allowed attorneys for appellee, we shall not disturb the judgment in so far as it relates to that; but in all other respects, including alimony in any sum or any of the articles of a personal nature given appellee, the judgment is reversed.
Judgment reversed.