188 Ky. 140 | Ky. Ct. App. | 1920
Affirming.
In this action for a divorce a vinculo brought by the appellant, Micheál J. Manning, against hia wife, the appellee, Emily L. Manning, the ground relied on in the petition, as amended, for the severance of the marital relation existing between them is the. alleged abandonment of the former by the latter of more than a year’s continuous duration. The appellee did not herself seek a divorce or aiimonv, but resisted the right of appellant to the divorce by filing an' answer containing a complete traverse of the averments of the petition. Following the taking of proof by the parties and submission of the case the circuit court, by the judgment rendered therein, refused appellant a divorce and dismissed the petition. He prayed and was granted an appeal, the prosecution of which to this court requires of us a review of the judgment.
The evidence relating to the ground of divorce is contained in six depositions found in the record, three of which were taken for the appellant and three for the appellee; one of appellant’s witnesses being his sister and one of appellee’s a twelve year old daughter born of her marriage with the appellant. It should here be stated, however, that the deposition of a fourth-witness was taken by appellant, but it was only read in -rebuttal to support the reputation of a Mrs. Crowley to whom the deposition of his daughter, by implication at least, had attributed some sort of improper relation with him. We deem it unnecessary to discuss in detail the evidence relied on by appellant to obtain the divorce prayed, or that relied on by appellee to prevent his obtention of it, but only to set forth the salient facts furnished by it and the conclusions at which we have arrived from a careful consideration of those facts, together with such conclusions of law as we think applicable to them.
Appellant and appellee were married November 26, 1902, and lived together as man and wife until some time in November, 1917, at which time he left her and their home in Louisville and took up his. residence elsewnere in that city and.has since lived apart from her. Two daughters were born of their marriage, one of them now fourteen and the other twelve years of age. According to the claim and evidence of appellant he was compelled to leave his home and family because of appellee’s violent temper, abuse of him and refusal to cohabit with
But notwithstanding the many things found in the evidence reflecting discredit upon the conduct both of appellant and appellee, it should be said in commendation of each of them that it also shows that both have a sincere affection for their children and do not hesitate to make sacrifices for them; and, further, that both are persons of unusual industry. This is demonstrated by the facts* that appellant, since leaving his home, has contributed weekly out of his daily wages to the support of the two daughters and all the while made monthly payments of the debt he is owing on the home occupied by the daughters and appellee. At the same time, and continuously since her separation from appellant, appellee by her labors at the wash tub and otherwise, has. supported herself and also materially helped to support the daughters. It is also to the credit of appellant that his recognition of appellee’s fitness to retain the custody of their daughters is shown by the failure of the petition to claim for himself such custody; and equally to the credit of appellee that her answer makes no claim for alimony and that she seems willing to rely upon appellant’s purpose to continue his assistance to the support of the daughters, rather than to ask that he be compelled by the court to render such assistance.
We think it patent from the evidence that appellant is as much to blame as appellee for the marital troubles that came upon them. While she is evidently a woman of strong and at times ungovernable temper, lie is shown