47 S.W.2d 1072 | Ky. Ct. App. | 1932
Reversing.
Catherine Hughes Lyon and Early K. Lyon were husband and wife. At the February term, 1916, of the Fayette circuit court, in her action against him, a judgment was entered decreeing her a divorce a vinculo matrimonii, but reserving the question of alimony for future determination.
On the 3d day of April, 1926, she filed notice executed on Earl K. Lyon, and entered a motion in the court in which the judgment was rendered, to redocket the case and to fix an allowance of permanent alimony and support. During the pendency of the motion, an agreement was entered into by the parties, whereby it was stipulated *238 that the property therein described and owned by Earl K. Lyon was of the value of $111,820, and the property owned by Catherine Hughes Lyon was of the value of $12,804, or about one-ninth of that of Earl K. Lyon. The property owned by him, as well as the larger portion of that owned by her, was acquired by him under the will of his father who died after the judgment of divorce was rendered.
The court awarded her alimony of $60 per month, but reserved the right to change it from time to time; $300 fee was allowed her attorneys.
It appears from an affidavit filed in the record after the appeal was perfected that the wife has married since the decree of divorce was entered.
The general rule is that on the marriage of the wife to another husband her right to alimony as against her first husband terminates. Montgomery v. Offutt,
The steps which were taken to submit the question of alimony sought in the original petition were authorized under the order of court reserving it for future adjudication.
Maintenance and alimony are mere incidents to a suit for a divorce, and a recovery of either or both should be sought in the petition asking a divorce (Wallace v. Wallace,
The rule that an independent action therefor cannot be maintained after the rendition of judgment decreeing an absolute divorce has no application where, in such *239 action, the court in its judgment reserves for future adjudication the wife's right to alimony, as was done in the present case.
The proceeding herein was not an independent action against the husband for alimony within the rule stated in Campbell v. Campbell and Logsdon v. Logsdon, supra.
The single question presented by this appeal is the right of the appellant to have increased the alimony allowed to her on the facts presented the character and nature of the property respectively owned by the appellant and the appellee are manifested by the agreed facts.
It is a rule fixed by statute that, if the wife has not sufficient estate of her own, on being granted an absolute divorce, she may be allowed out of her husband's estate such an amount as shall be deemed equitable. Section 2122, Ky. Stats. When fixing alimony, it is proper to consider her estate, its income and market value, as well as that of the husband. Duke v. Duke,
The capacity of the husband to pay as well as the value of his accumulated property and the income therefrom should be considered when fixing the wife's alimony. Cecil v. Cecil,
The age, the health, and the ability to labor, of both the husband and wife, should also be considered. Miller v. Miller,
As a general rule alimony should be allowed to the wife in a lump sum. (Gooding v. Gooding,
Evaluating the respective estates owned by the appellant and the appellee, and considering their age, health, and capacity to labor, together with the circumstances of the parties, we have reached the conclusion that an allowance of $100 per month alimony should be allowed from the date of the judgment, appealed from, in lieu of $60, subject to the right of the chancellor to modify the monthly allowance of $100 to meet any changed conditions of the parties that have arisen since the judgment allowing her $60 the month.
The attorneys of the appellant to whom the $300 fee was allowed are not parties to this appeal. The rule is that where an allowance to the plaintiff's attorneys in a divorce suit is made direct to them eo nomine, and taxed against the defendant as costs, and such attorneys are not made parties to the appeal, this court cannot consider the question of such allowance. Sallee v. Sallee,
Judgment is reversed for proceedings consistent with this opinion.