176 Ky. 456 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
On September 21, 1915, appellee filed this action in the Warren circuit court against appellant for divorce, charging her with adultery with one Arthur Hardca'stle, and that her behavior had been so lewd and lascivious as to prove her to be unchaste. Appellant filed her answer on September 27, 1915, denying the charges made against her and filed a counter-claim asking for a divorce on the ground of cruel and inhuman treatment, and that she be allowed alimony. The issues were completed by proper pleadings, proof taken and upon submission the chancellor rendered a judgment granting appellee an absolute divorce and dismissing appellant’s counterclaim, from which judgment she prosecutes this appeal.
As it is well settled in this state that a judgment of divorce cannot be disturbed, the only question before us is whether or not the chancellor erred in refusing to allow appellant alimony, and to determine this question it -is proper that we review the action of the chancellor in granting the divorce, for if the husband has proven his charge of infidelity against the wife, alimony
The parties were married in Nashville, Tennessee, in January, 1906, and lived together as husband and wife until this trouble arose, in 1915, with no ■ disturbance of any consequence and quite happily, so far as their neighbors and intimate friends could discern. Neither party had any means at the time of the marriage and at the time of the separation appellee had probably not to exceed one thousand ($1,000.00) dollars, in personal property, besides the household furniture, a part of which the wife had assisted in purchasing with, money she had earned by sewing. She had been a dutiful, kind and industrious wife and he had fulfilled his obligations as a husband. During all of their married-life they lived in Bowling Green, at or near 154 Kentucky street. He was 'engaged in the grocery business, with.his brother, most all this time and while so engaged met Arthur Hardcastle as a traveling salesman for Davidson Brothers, a wholesale grocery firm, and- ifitrodnced him to his wife. In June, 1915, appellee having gone out of the grocery business, accepted employment from Davidson. Brothers as a traveling salesman, and his duties took him away from home from Monday until Friday or Saturday of each week. On September 19, 1915, Edgar Clemens, a friend of appellee and relative of appellant, who had, at one •time, lived in the same house with them for about two years, informed appellee that he had seen his wife, upon several occasions during the months of August and September, get into an automobile after dark and under circumstances which excited his suspicions, with Hardcastle on Center and State streets, in Bowling Green, and drive off with him, returning in a .half or three-quarters of an hour later and get out of the automobile near the same place where she had entered it. On the next day, appellee, in company with ‘Clemens, went to appellant and accused her of misconduct with Hardcastle, telling her what he had heard. She, at first, denied having taken automo.bile rides with Hardcastle, and then admitted two of the automobile rides, confessed that she had done wrong and asked her husband’s forgiveness, but he refused to forgive her and on the next day, September 21, filed this suit for a divorce upon the grounds above stated. Clemens, testifying for the husband, stated that on August 17th and 25th and September 1st and 8th, he had seen
The charge that she made against her husband of cruel and inhuman treatment, after he had charg’ed her with infidelity, is supported by no 'evidence whatever, except her own testimony, and is overwhelmingly contradicted by the other evidence in the case.- Mr. Clemens and appellee testify that Hardcastle’s - reputation for morality is bad, and no witness testifies that it is otherwise.
To summarize, it is proven that Mrs. Phelps, during the absence of her husband, began meeting, clandestinely and surreptitiously, a man whose reputation for morality was not good; for the purpose of taking automobile rides with bim after night, and that her husband learned of the fact and confronted her with it, she first denied the charge in to to, and then admitted conduct at least indefensibly indiscreet, and asked the husband not to make public the charge. The chancellor lives in the town where these people live, and, no doubt, knew all the witnesses personally who testified in the case. In addition to the misconduct to which Mrs. Phelps confessed, the chancellor, upon the evidence, would have been entirely justifiable in accepting as true the testimony of other automobile rides with Hardcastle which she denied.
Wherefore, tbe judgment is affirmed.