205 Ky. 538 | Ky. Ct. App. | 1924
Opinion op the Court by
Reversing.
Appellant and appellee were married in 1916. They had each been previously married, and each at the time had a daughter, one eight and the other ten years of age.
After a full preparation of the case upon this ground, and after the case had been heard by the chancellor, upon suggestion of the court plaintiff filed an amended petition asking for a divorce upon the ground of abandonment. The court granted the plaintiff a divorce upon the ground of abandonment, but declined to allow her any alimony, and from the latter part of the judgment the plaintiff has appealed.
If upon an examination of the evidence this court reaches the conclusion that the divorce should have been granted upon the ground of cruel and inhuman treatment, it necessarily follows that the plaintiff was entitled to allowance of some kind for alimony. In fact, the general rule in this jurisdiction is that where the wife is shown to be entitled to a divorce upon any ground her right to alimony naturally follows; and that while this court has no power to reverse a judgment of divorce improperly granted by the lower court, yet if such divorce be granted to a wife she should be allowed alimony. Griffin v. Griffin, 173 Ky. 636; Day v. Day, 168 Ky. 68.
The facts in this case are that shortly .after these parties married defendant, who was a man of high temper and of unfortunate disposition, was at times very rude and unkind to the plaintiff, and in the presence of others at various times during their married life made charges and insinuations against her chastity which, caused her great unhappiness and destroyed her peace of mind. These things are chiefly testified to by the plaintiff herself, but there is in evidence a letter written by him shortly after their separation in effect making the same charges and threatening to make public certain letters, which he claimed to have, and in addition making insinuations about her 'relations with another named man.
Certainly this letter, the authenticity of which is not denied, is strongly corroborative of the wife’s statement that he had upon various occasions not only insulted her,
Notwithstanding his thfleat in the letter referred to, to make pubilc three letters which he claimed to have reflecting upon his wife’s fidelity, he not only does not introduce any such letters in this case, but he does not even defend the action upon any such ground as therein intimated. Nor is there any evidence introduced tending to corroborate any such charge if it had been made.
It has long been the rule in divorce cases by the wife that a baseless or unfounded charge of adultery against her by the husband is in and of itself such cruel and inhuman treatment as to authorize the granting of a divorce to the wife. Johnson v. Johnson, 183 Ky. 42; Nichols v. Nichols, 189 Ky. 500.
It necessarily seems- to follow that the plaintiff was entitled to a divorce upon the ground of cruel and inhuman treatment, and that the court erred in not granting to her some allowance for alimony.
At the time of the marriage appellee had comparatively little property, but during the marriage he seems to have in a modest-way prospered, and, as shown by the record, after some financial assistance from his wife, he has established a reasonably prosperous small grocery business which he is operating in the city of Stanford, and that his stock of goods in that store on the average is worth from $2,000.00 to $2,500.00. In addition to that he has title to two pieces of real estate in Stanford said to be worth from $2,000.00 to $2,500.00, and there is some suggestion that he is the owner of another house and lot, to which he has not a deed, worth seven or eight hundred dollars. On the contrary, his debts appear to be, including the running debts of his- business, half of the- value of a!ll his property, or in the neighborhood of $2,500.00, which leaves him worth approximately $2,500.00
Under the facts of this ease we- think an allowance of a lump sum for alimony, all payable at one time, would be an injustice to appellee. He has an afflicted daughter that he must support, and a lump sum payable all at once might cripple him in his business.
■ _ • The judgment is reversed with directions to enter a judgment as herein indicated.
