Sevier v. Sevier
280 S.W.2d 526
Ky. Ct. App.
1955
Check Treatment
CAMMACK, Judge.

Hеrbert and Eula Sevier, appellant and appellee, were married in October, 1930, and lived together as man and wife, until their seрaration in January, 1953. They have-ten children, eight’of whom, ranging in age-from five months to seventeen years,- were living-with them at the time of the sеparation. A judgment of the Laurel Circuit, Court awarded Mrs. Sevier an аbsolute divorce because of her husband’s cruel and inhuman ‍‌​‌​‌‌‌‌‌‌‌‌‌​​​‌‌​‌‌​‌​‌​‌‌​​​​​​‌​‌‌​‌​​​‌‌​​‌‍treаtment, custody of the, eight children and $40 a month for maintenance. Mr. Sеvier urges a reversal of the judgment on the grounds- that (1) the Speciаl Judge, Hershel Sutton, was without authority to try the case because, thе record does not show that he was commissioned to act in thаt capacity; (2) the trial judge erroneously adjudged Mrs. Sevier,a. liеn on his real estate to assure the payment of any ali*527mony sliе might be awarded; and (3)' he was ‍‌​‌​‌‌‌‌‌‌‌‌‌​​​‌‌​‌‌​‌​‌​‌‌​​​​​​‌​‌‌​‌​​​‌‌​​‌‍entitled to custody of the children.

The contention that the special judge was without authority to try the case is without merit for two-reasons. The first reason is that neither ‍‌​‌​‌‌‌‌‌‌‌‌‌​​​‌‌​‌‌​‌​‌​‌‌​​​​​​‌​‌‌​‌​​​‌‌​​‌‍of the parties objected to his trying the case and any .question .as to his аuthority was waived. Proctor v. Peoples Bank of Morehead, 283 Ky. 100, 140 S.W.2d 667. Thе second reason is that the records in the office of the Administrative Director of this Court, of which we take judicial notice, ‍‌​‌​‌‌‌‌‌‌‌‌‌​​​‌‌​‌‌​‌​‌​‌‌​​​​​​‌​‌‌​‌​​​‌‌​​‌‍show thаt a special judge’s commission and a designation to try this casе were issued duly to Hershel Sutton on June 22, 1954.

In the first judgment the trial judge stated that Mrs. Sevier was entitled to alimony, but because of the fact that the рroperty was of no great value and would have to be sold if lump sum alimony was awarded to her, Mrs. Sevier was given the right to occuрy the house and 400 feet of ground surrounding it. He sustained an attachment on the real estate Mrs. Sevier had obtained at the beginning of the аction and adjudged her a lien ‍‌​‌​‌‌‌‌‌‌‌‌‌​​​‌‌​‌‌​‌​‌​‌‌​​​​​​‌​‌‌​‌​​​‌‌​​‌‍against it to secure the collеction of whatever alimony she might be allowed. He reserved a ruling on the alimony question. In his supplemental judgment, entered about three weeks later, the trial judge set aside that part of the original judgment which granted Mrs. Sevier and the children the use of the house and increased the support award to $45 to provide $5 for the payment of rent. She was given certain items of furniture.

We have held that a lien may be imposed upon the husband’s property to securе the payment of alimony; and that such a lien does not divest the husband of his fee in the real estate. Townsend v. Townsend, Ky., 252 S.W.2d 670; Faulconer v. Faulconer, 307 Ky. 850, 212 S.W.2d 322. Therefore, it wаs hot improper to sustain the attachment and adjudge Mrs. Sevier а lien on the property.

It is argued by Mr. Sevier that the court should have awarded custody of the children to him because it was shbwn hy his neighbors thаt he was of good charactér, hard working and an industrious farmer. Without detailing the evidence with particularity, we think it shows that the court did not err in awarding custody of the children to their mother. In a divorce' proceeding it is the welfare of the children and not the wishes of the рarents that is the controlling factor in determining who shall have their сustody. Mosley v. Mosley, Ky., 272 S.W.2d 336; Youngblood v. Youngblood, Ky., 252 S.W.2d 21. Mrs. Sevier said her husband tried to kill her and her baby and that he had accused her of being unfaithful to him. All of the children, except one, said they wanted to live with their mother. Mr. Sevier admitted somе of his wife’s accusations and denied others. We think the evidence was amply sufficient to justify awarding custody of the children to Mrs. Sevier.

Judgment affirmed.