203 Ky. 431 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
The appellee, Kathryn J. Miles, instituted an action in the first division of the chancery branch of the Jefferson circuit court against the appellant, Callen Gr. Miles, on the 15th day of July, 1920, by which she sought to recover alimony from him upon the ground that he had habitually behaved toward her for not less than six months in such cruel and inhuman manner as to1 indicate .a settled aversion to her and to destroy permanently her peace and happiness, and that by reason of such treatment she had been forced to abandon him and return to the home of her parents to live. Appellant answered traversing the allegations of the petition and affirmatively pleaded that appellee had abandoned him without fault on his part.
During the pendency of the action and on the 9th day of June, 1921, after the hearing of appellee’s motion to require appellant to pay her the sum of $123.87 and the further sum of $100.00 a month for the support and maintenance of herself and infant child, the. court overruled the motion but entered an order requiring appellant to pay the appellee for the support of their child the sum of $35.00 from August 15, 1923, until further orders of the court. Upon the final hearing the court adjudged appellee an absolute divorce from appellant and awarded her the custody of the child aud adjudged that appellant pay her the sum of $50.00 a month as alimony and $25.00 a month for the support of their infant child. The court dismissed appellant’s counterclaim and adjudged that he pay the cost of the action, including appellee’s attorney’s fees.
This appeal is prosecuted from the order of the court entered June 9, 1921, allowing appellee $35.00 a month for the support of their infant child from August 15, 1920, until further orders of the court, and from the judgment of the court on final hearing adjudging that appellee recover of appellant $50.00 a month alimony and $25.00 a month for the support of the child.
Section 950 of the Kentucky Statutes expressly provides that no appeal lies to this court from a judgment granting an absolute divorce. However, it has frequently been held that this court has power to review the correctness of a judgment granting a divorce to determine whether or not alimony was properly awarded or refused.
In disposing of tbe question as to ‘whether or not the court below properly awarded appellee a divorce, we do not feel that any good purpose could be served by giving^ a detailed account of the testimony offered. The testi-” mony was conflicting, as is usually the case. We have carefully considered the record and conclude that the chancellor’s finding in the matter was warranted by the evidence establishing appellant’s lack of care of, attention to and consideration for appellee while in the delicate condition consequent upon conception and pregnancy. The extent to which appellant’s lack of consideration for and his indifference to appellee was carried may be illustrated by reciting one instance which occurred on the day their child was bom. It is true this young couple were then separated and that about a month prior thereto appellee had instituted her action against him for alimony, but no divorce had been sought. The birth of their child offered the opportunity most calculated to affect a reconciliation. In all probability that would have resulted if there had remained in appellant’s heart any love for appellee or any desire to be reconciled to her. As quickly after the birth of the baby as telephone communication could be had with him, at the instance of appellee, a kindhearted woman, who was a cousin of both appellant and appellee, and who had come to her home to aid her at this trying time, called appellant by telephone and notified him of the birth of his first child, a son. She advised him that the child had been born after great difficulty and almost at the expense of the life of his wife; but that happily and fortunately both the wife and baby then appeared to be out of danger. For the wife and the members of her family, she extended to him an invitation to come immediately to see his new-born son. His response was: “I thank you; I don’t think I care to see it.” We think this incident clearly- points out the rocks upon which the ship of this couple’s marital happiness was wrecked. We are of the opinion that the proof offered by appellee warranted the conclusion that his conduct had been so cruel towards her for more than six months as to indicate a settled aversion to her and such as to destroy permanently her peace and happiness. The chancellor so found and we concur therein.
It is earnestly insisted for appellant, however, that the chancellor’s award on the 9th of June, 1921, of $35.00 a month to appellee for the maintenance of the child from August 15, 1920, the date of its birth, until the further orders of the court is clearly erroneous. His contention is that the order is retrospective and that the chancellor had no authority to make an order for maintenance of the child antedating the motion for same which was made in May, 1921.
Section 2123 of the Kentucky Statutes authorizes the court, pending an application for divorce or on final judgment, to make orders for the care, custody and maintenance of the minor children of the parties. In entering the order on June 9,1921, the chancellor clearly was act
The judgment of the lower court is affirmed.