95 Ky. 110 | Ky. Ct. App. | 1893
delivered the opinion op the court.
The appellee sought and obtained a divorce from his •wife, the appellant, on the sole ground of his having lived apart from her without cohabitation for five consecutive years next before the institution of his action. The fact of separation was not denied, but the wife sought alimony upon the ground that the appellee, without "cause, had abandoned her when she was without fault; that she had sheltered him in a home provided by her for the nine years of their married life, and been
The appellee admits that he abandoned his wife, but denies that he was in fault, and sets up a series of petty grievances against her, evidently having little, if any, excuse for his conduct. He was about thirty-eight years of age and she forty-eight when they married in 1875. She was a widow with two daughters. They kept a boarding house, and the wife was industrious and economical. The husband was addicted to frequent sprees, but was a proficient salesman and clerk, and contributed to a considerable extent to the support of the family. In his deposition he says that while he was married he bought a town lot for $150, and a small tract of land for which he paid $200; that just before the separation he had' bought a piece of land and owed a sale bond amounting to $301, and was without money to pay it; that he told his wife and her daughter and son-in-law that if they would pay to him some $245 that the son-in-law owed for board, he would stay at home and assist his wife in keeping the boarding house, otherwise he would be forced to leave in order to make money enough to pay
The chancellor seems to have been of the opinion that because the divoree was not obtained by the wife in a proceeding by her for that purpose, she is not entitled to ¡alimony, and such would seem to be the effect of a .literal construction of the statute. It reads, “ and if the wife have not sufficient estate of her own, she may, ■on a divorce obtained by her, have such allowance out of that of her husband as shall be deemed equitable,” etc.
We do not think, however, that this statute deprives the wife of alimony, if otherwise entitled to it, simply because she may not have instituted the suit for divoree. It was intended to apply in all cases where the separation occurs without her fault, and embraces cases where ■she is entitled to obtain a divorce, though the husband is seeking it. Such was the effect of the decision of this court in Davis v. Davis, 86 Ky., 32. It is true that in that case the judgment of divorce obtained by the husband should not have been granted. Here it was properly granted by reason of the statute, yet the point upon which the right of the wife to alimony rested was the conduct of the husband. Her equities are the same in this case. Although either party, without reference to which one was in fault, might have obtained the divoree by making the application, yet their conduct was a proper subject-matter of inquiry for the purpose of
It is insisted, however, that because the wife’s answer was not styled a “ counter-claim,” she is not entitled to a judgment for alimony. If this requirement of the Code be applicable to cases of this kind, yet the appellee by replying to and joining issue on the matter set up in the alleged counter-claim, waived his right to make this objection. (Cason v. Cason, 79 Ky., 558.) Moreover, after the institution of the suit of appellee, the wife instituted an independent action for alimony. There was an answer relying, among other things, on the pendency of the first action and the claim to alimony therein. This action could not be prosecuted independently, of the first one, but the suits were consolidated and heard together. If we hold that the statute does not allow alimony to the wife in the first action because it would not be on a divorce obtained by her, or hold that the appellant did not waive objection to the wife’s pleading by replying to it, yet there seems no reason why she is not entitled to alimony in this independent suit brought by her. It is urged as an objection to this,, that only a partial record of this second suit is brought up; but when an amended petition is tendered and an order made permitting it to be filed, yet if it be not in fact in the record, which is certified to be a complete transcript, the presumption must be that although the plaintiff had permission to file it, it was not in fact filed.
The only allowance to the wife was $75 pending the suits. The extent of her estate seems to be about $700. The husband seems to have gotten several hundred dollars of her separate property, and is- worth some
The judgment below dismissing her claim is reversed, and a judgment in her behalf is directed to be entered for this sum.