122 Ky. 590 | Ky. Ct. App. | 1906
— Reversing.
From a judgment dismissing her petition for divorce and alimony and the custody of her child, the appellant, who was plaintiff in the court -below, prosecutes this appeal.
She sought a divorce upon two grounds: First that at the time of the marriage, appellee had a loathsome disease, and concealed from her the existence thereof; and, second, that he habitually behaved toward for not less than six months in such a cruel and inhuman manner as. to indicate a settled aversion to her or to permanently destroy her peace or happiness. It appears from the, record that these parties were married in January,' 1903; the appellee being then about 21 years of age, and the appellant about 18 years. In October, 1903, a boy child was bom of the marriage; in April, 1904, a final separation took place; and in June, 1904, this action was instituted. In his answer the appellee admits at the time of his marriage he had a lothsome disease, but avers that he was unaware of the fact or of the existence thereof, and that shortly after his marriage he and his wife discovered the fact, and that she abandoned him and refused to live with him, but afterwards came back to his home and forgave and condoned his offense, and lived and cohabited with him from the time of her return until the separation, which he averred was without fault on his part. He denied that he at any time treated her in a cruel and inhuman manner, and averred his affection for her and the child, and his willingness and desire that they return to his home. The married life of this couple was
The first question that present’s itself is- whether or not his wife condoned or could condone the- offense of which he confesses he was guilty by living with him after knowledge upon her part of the fact that he had a loathsome disease. The statute (section 2117, el: 4) provides that a divorce may be grated to a party not in fault for “concealment from the other party of any loathsome disease existing at the time of marriage or contracting sucia afterwards,” and further provides that “living in adultery with another man or woman or adultery by the wife or such lewd'lascivious behavior on her part as proves her to be unchaste, shall be grounds of divorce,” and section 2120 declares that “cohabitation as man and wifei after a knowledge of adultery or lewdness complained of shall take away the right of divorce therefor.” The statute does not in express terms provide that any of the other causes for which a divorce may be granted may be condoned and it is therefore insisted that the condonation that denies a right of action is limited to cohabitation as man and wife after a knowledge of adultery or lewdness, and does not embrace the -ground upon which a divorce is sought in this case. Without determining the question whether or not condonation is limited to these two- offenses, we are disposed to place the opinion upon the higher and broader ground that the offense charged in this action is one that the wife cannot condone by cohabiting with her husband,
There is reason and justice in the doctrine that the injured spouse may, by his or her voluntary acts committed with a full knowledge of all the facts, condone a vice or crime. Thet drunkard may, and often does, reform and become a useful and honest citizen, a
It is likely that appellee, when be married, believed that he was well; but his innocence in this respect does not affect the question here presented, as his defense is that, although he had this disease, his wife cannot complain of it, because she continued to live with him for several weeks after discoverihg the fact. During the life of his mother, and when his wife was with her family, during and after her confinement, his conduct was not that of a good husband, if the only persons who testify concerning his behavior can be believed, and their evidence is not contradicted. Many acts, each in itself little, are related, illustrating his lack of feeling and respect for his wife. When his mother died in January, 1904, he requested a Baptist minister, a friend of the family, to go and see his wife, and entreat her to return, promising that he would be a kind and faithful husband, and would accord her the treatment due a wife. After a visit from the minister she did return to his home, and remained there until April.
In respect to the gllowances. asked for, it appears that the real property of appellee is reasonably worth $13,000, and his wife has no estate; and under all the circumstances we have concluded that it will be better and more satisfactory to both parties if a lump sum is awarded, as the husband will then know what he must pay, and the wife what she will have for her support. Gooding v. Gooding, 104 Ky., 755, 47 S. W., 1090, 48 S. W., 432, 20 Ky Law Rep., 955. We think $3,000 for the wife, $500 for the child, and $500 attorney’s fees a fair allowance, and the court will make and enforce such, orders as may be neeesary to secure the payment of these sums. For the present, the mother is entitled to the exclusive custody and care of the child, with reasonable and proper opportunity for visits by its father; the question of its future disposition to be kept under the control of the court.
The judgment is reversed, with directions for further proceedings in conformity to this opinion.
The first question that present's itself is whether or not his wife condoned or could condone the offense of which he confesses he was guilty by living with him after knowledge upon her part of the fact that he had a loathsome disease. The statute (section 2117, cl. 4) provides that a divorce may be grated to a party not in fault for “concealment from the other party of any loathsome disease existing at the túne of marriage or contracting such afterwards,” and further provides that “living -in adultery with another man or woman or adultery by the wife or such lewd lascivious behavior on her part as proves her to be unchaste, shall be grounds of divorce,” and section 2120 declares that “cohabitation as man and wife after a knowledge of adultery or lewdness complained of shall take away the right of divorce therefor.” ■ The statute does not in express terms provide that any of the other causes for which a divorce may be granted may be condoned and it is therefore insisted that the condonation that - denies a right of action is limited to cohabitation as man and wife after a knowledge of adultery or lewdness, and does not embrace the ground upon which a divorce is sought in this ease. "Without determining the question whether or not "condonation is limited to1 these two offenses, we are disposed to place the opinion upon the higher and broader ground that the offense charged in this action is one that the wife cannot condone by cohabiting with her husband,
There is reason and justice in the doctrine that the injured spouse may, by his or her voluntary acts committed with a full knowledge of all the facts, condone a vice or crime. Thet drunkard may, and often does, reform and become a useful and honest citizen, a
It is likely that appellee, when be married, believed that he was well; but his innocence in this respect does not affect the question here presented, as his defense is that, although he had this disease', his wife cannot complain of it, because she continued to live with him for several weeks after discovering the' fact. During the life of his mother, and when his wife was with her family, during and after her confinement, his conduct*was not that of a good husband, if the only persons who testify concerning his behavior can be believed, and their evidence is not contradicted. Many acts, each in itself little, are related, illustrating his lack of feeling and respect for his wife. When his mother died in January, 1904, he requested a Baptist minister, a friend of the family, to go and see his wife, and entreat her to return, promising that he would be a kind and faithful husband, and would accord her the treatment due a wife. After a visit from the minister she did return to his home, and remained there until April.
In respect to the allowances asked for, it appears that the real property of appellee is reasonably worth $13,000, and his wife has no estate; and under all the circumstances we have concluded that it will be better and more satisfactory to both parties if a lump sum is awarded, as the husband will then know what he must pay, and the wife what she will have for her support. Gooding v. Gooding, 104 Ky., 755, 47 S. W., 1090, 48 S. W., 432, 20 Ky Law Rep., 955. We think $3,000 for the wife, $500 for the child, and $500 attorney’s fees a fair allowance, and the court will make and enforce such, orders as may be necesary to secure the payment of these sums. For the present, the mother is entitled to the exclusive custody and care of the child, with reasonable and proper opportunity for visits by its father; the question of its future disposition to be kept under the control of the court. ■
The judgment is reversed, with- directions for further proceedings in conformity to this opinion.