135 Ky. 197 | Ky. Ct. App. | 1909
Opinion op the Court by
Reversing.
Appellant and appellee were married June 13, 1901. Appéllee was then a young man about 25 years old. His wife was a year or two younger Appellee’s father was a man of wealth, and had considerable business interests. Appellee was a partner in some of his enterprises, was industrious, a good
' GvB. Rose was the father of appellee. John C. Eversole was an attorney in tlie case for appellant.
Divorce proceedings in this state come within the exclusive cognizance of courts of chancery jurisdiction. Judgments in chancery may be enforced by any appropriate writ allowed for the enforcement of judgments at law. Section 1663, Ky. St. But it is provided by subsection .2, section 1663, that “nothing in this article shall prevent either party from proceeding to carry an order or judgment of court into execution according to ancient practice of courts of chancery.” The circuit courts of this state have all power anciently vested in the English Courts of Chancery. Rebhan v. Fuhrman, 21 Ky. Law Rep., 17, 50 S. W. 976. Those courts had, and circuit courts of Kentucky now have, the power, as an incident of their chancery jurisdiction, to enforce obedience to their orders and decrees by summary mode, attachment, and imprisonment. Said this court in Ballard v. Caperton, 2 Metc., 412: “This power belongs of necessity to the court, that its judgments and orders may be carried into execution and
G-rounds for divorce may not be confessed. They must be proved. Section 422, Civil Code Prac. They cannot legally be the subject of agreement.- Not the consent of dissatisfied parties, but the judgment of the courts alone, may dissolve the marital relation. True, a defendant to an action for divorce may decline to defend, even though he has a defense. The act mqy be the result of agreement. Nevertheless, when the decree is entered, it is the court’s judgment upon the record as made, and establishes a new status, not subject to retrial in court. The decree of divorce in this case must therefore abide, unless the parties by their joint personal petition to the court granting the divorce procure its annulment as allowed by section 426, Civil Code Prac. But judgments allowing or refusing alimony are subject to review on appeal; or to new trial upon proper grounds therefor being shown.
This proceeding to enforce the payment of the judgment for alimony was, as we haye seen, one authorized by the practice in chancery. Relief will be granted according to the rules.of equity. We are satisfied from the evidence that Mr. Sebastian, representing appellant as her attorney, did agree with the father and the attorney for appellee that the payment of $500,and the attorney’s fee of $50 would be in satisfaction of the judgment for alimony, and that the judgment fixing the amount was predicated upon
The compromise was therefore voidable by her. When appraised of it, she must elect to either ratify or disaffirm it. If she ratify it, that ends it. ' If she disaffirms it, then she must consent to stand where she was before it was made. She will not in equity be allowed to say in one breath that she will claim the fruits of the agreement, and in the next breath to deny the condition upon which the agreement was made. The case then stands thus: A divorce has been granted to appellant upon allegation and proof of abandonment. Her claim for alimony asserted in the petition is undisposed of. She has been paid $500 on her claim for alimony, and $50 on her counsel fee. That she is legally entitled to alimony in this case is not now an open question. The only question is: How much should be awarded her? Even upon the showing she made in the partial preparation of the case, it seems to us that $1,500 was wholly inadequate. Just what property appellee then had is not satisfactorily shown. But it is shown that he had youth, health, strength, and business ability, no mean assets in these times. Many a man begins life with the charge of a family with no more, yet achieves success. The dependent condition of the wife, the helplessness and just needs of their child, both imposing legal and moral obligations upon the husband and father not discharged by divorce, nor diminished
' Let the judgment be reversed and cause remanded for further proceedings not inconsistent with this opinion. ■