177 Ky. 337 | Ky. Ct. App. | 1917
Opinion op the Court
Commissioner — Affirming.
In this suit for divorce by Maggie Messick against Bascom Messick, a demurrer was-sustained to the petition and the petition dismissed. Plaintiff appeals.
One of the statutory grounds for divorce is “living apart without any cohabitation for five consecutive years next before the application.” Subsection 2, section 2117, Kentucky Statutes. It appears from the petition that the plaintiff and defendant were married on December 26, 1894, and thereafter lived together as man and wife until December 13, 1910, when the defendant was adjudged a person of unsound mind by the Fayette
In support of the affirmative of this proposition, counsel for plaintiff has presented a very able and interesting argument along the following lines: The statutory provision is without qualification. It does not make the right to a divorce depend on the fault of either party, or on whether the separation is the voluntary or involuntary act of the parties. On the contrary, it makes the living apart for the period fixed by the statute an absolute and unrestricted ground for divorce. This position, it is claimed, finds support in the decision of this court in the case of Davis v. Davis, 102 Ky. 442, where it was held that the wife was entitled to a divorce although during the period of separation, the husband was confined in the penitentiary. Some stress is also placed on the ruling of this court in the case of Andrews v. Andrews’ Committee, 27 Ky. Law Rep 1119, that where a cause of divorce had accrued to the husband, the subsequent insanity of the wife did not prevent his obtaining a divorce upon grounds arising before the judgment of lunacy. It is further pointed out that the case of Pile v. Pile, 94 Ky. 308, is not controlling because the divorce was there asked ‘‘on the ground of lunacy and abandonment for five years,” and the court merely held that lunacy was not a ground for divorce and that the wife who had been confined in the asylum by the consent and direction of the husband, had never abandoned him. That case was right, it is claimed, because lunacy is not a ground for divorce, and abandonment,which necessarily includes both the act of leaving and the purpose to leave, necessarily carries with it the idea of volition. But in this case, it is pointed out, the suit is neither for abandonment nor
' Though conceding the force of this argument, we are constrained to take a different view of the question. When carefully analyzed, the case of Davis v. Davis, supra, does not announce the rule that the living apart need not be voluntary. It is true that the court did hold that a separation for more than five years due to a husband’s confinement in the penitentiary during that period, was a sufficient ground of divorce under the statute. In reaching, this conclusion, however, the court took into consideration the fact that although his confinement was due to an act of law, yet it was the result of his own conscious act for the consequences of which he was alone responsible. It is clear, we think, that the legislature did not intend to declare that a living apart which was in no sense due to the conscious act of either of the parties, but was due alone to an act of law resulting entirely from the mental condition of one of the parties for which he was in no sense responsible, should be a ground of divorce. While this court has not heretofore passed on the precise question, this is the ruling of the Superior Court in the case of Ferguson v. Ferguson, 8 Ky. Law Rep. 428, where it was held that while a divorce may be granted to both husband and wife who have lived separate and apart without cohabitation for five consecutive years next before the application, the statute assumes that the parties have lived separate and apart because of their mutual purpose to do so, or because one .so determined and the other acquiesced. The wife was, there
Judgment sustained.