| Ky. Ct. App. | Apr 27, 1923
Opinion op the Court by
Affirming.
Through this equity action, brought in the Pike circuit court by appellant and plaintiff below, Pearl Gr. Smith, against her husband, the appellee and defendant below, Will M. Smith, the plaintiff sought a judgment of divorce and for alimony upon the ground of cruel and inhuman treatment as contemplated and set forth in the statute. The answer denied the grounds averred and affirmatively pleaded the defendant’s devotion to plaintiff and his willingness and readiness to live with and provide for her, but that she declined to permit him to do so and of her own wrong insisted on living separate and apart from him. Facts were also affirmatively pleaded in a second paragraph showing that plaintiff was guilty of lewd and lascivious conduct, but those precise expressions or words were not incorporated in the pleading. It is stated in brief of counsel for defendant that an amended answer was filed in which that ground was expressly stated and relied on, but that for some cause that pleading was not copied or made a part of the record. That statement in the brief is not denied by any counter one made in brief of counsel for plaintiff; on the contrary, the latter brief silently concedes that defendant sought a divorce from plaintiff in his counterclaim on that ground. The record is quite voluminous and much of the testimony is the baldest kind of hearsay, while an equal amount of it is directed to wholly irrelevant and immaterial issues, by reason of all of which the labors of this court were largely increased, and its ability to dispose of an already delayed and congested docket greatly retarded.
Upon final submission the court dismissed plaintiff’s petition and refused her either a divorce or alimony, but allowed her an attorney’s fee of three hundred dollars, to be taxed as cost and paid by defendant, and sustained the latter’s counterclaim and granted to him an absolute divorce, to reverse which plaintiff has appealed. The question presented is largely, if not entirely, one of fact,
In some respects the case is somewhat remarkable and apart from the usual and ordinary. The parties were first married in 1910, when plaintiff was 21 years of age, a widow and divorced from her. first husband by whom she had one son, who was quite small and lived with her at the time of that marriage. At that time defendant was 44-years of age and was likewise divorced from his first wife by whom he had three living children. Before that marriage defendant assumed the financial burden of supporting and caring for plaintiff’s son by her first' husband and also sent her to several schools, one in Ohio, another in Kentucky and another in Texas, in which she prosecuted her studies for about two and one-half years before that marriage. She became fairly well educated and was taught and learned stenography and typewriting. The first wedding occurred in Texas and the couple did considerable traveling, with their legal residence in Pike county, but they temporarily resided for a while in Arizona, and so far as this record shows they lived for a while at least in peace and happiness. On May 1, 1917, defendant filed his petition in the Pike circuit- court against plaintiff, seeking a divorce from her on the ground of lewd and lascivious conduct, and it does not appear that defendant therein and plaintiff here made any defense thereto; but whether so or not, the court on March 9, 1918, sustained the allegations of that petition and entered a decree dissolving the bonds of matrimony and expressly recited in the judgment that the property rights of the parties had been settled between them by mutual agreement. A part of the property obtained by plaintiff in that settlement was a house and lot where she made her home and wherein her parents lived with her, there being no children born as a result of the marriage.
On December 4, 1918, the parties were married the second time and went immediately to plaintiff’s house' that she obtained in the settlement of -the property rights growing out of the first divorce proceeding and stayed there for a while when they went to defendant’s residence, but she left it shortly thereafter and returned to her own dwelling. She testified that defendant some
Instead, however, of plaintiff accepting the importunities of defendant, the proof unmistakably and without contradiction shows that her chief, if not only, associates were notorious lewd characters, and she, both in the day time and night time, was both flippant and free in her conversations with other men to such an extent as to excite the suspicions as well as to arouse the comment of her neighbors and acquaintances, all of which defendant knew and which he was pleading with her to quit; but without avail. We will not recite all of the proven occasions showing plaintiff’s associations and conduct, but one of them was that she accepted from one of the
Further recitation of the evidence or its substance is unnecessary. Upon the whole it is undoubtedly sufficient to prove the ground upon which defendant relied in his answer and especially was it sufficient to sustain the finding of that fact by the chancellor. If, therefore, defendant on some occasions when he was no doubt to some extent beside himself, was unpardonably guilty of using extreme, vulgar and coarse language, it did not lessen plaintiff’s guilt, nor did it furnish an excuse for her conduct prior thereto, nor did it constitute a defense for her refusing to perform her part in establishing and maintaining a happy, decent and morally clean family home. She was selected by defendant for that purpose and both human and divine law appointed her to that station, and both enjoined upon her, not only for the benefit of society at large, but for the preservation of the home that she should not destroy either or both by such prostituting actions and conduct as the record proves against her. Howsoever much the court, presided over by human beings, may pity or sympathize with her, yet a woman, the same as a man, has the opportunity to pursue the upright and proper course or to depart therefrom, and when she is guilty of the latter equity says to her, “Your hands are unclean and while so you shall not have relief. ’ ’
But, it is insisted at this point that the proof shows defendant guilty of similar conduct and that the doctrine in divorce proceedings known as “ Becrimination ” should be applied as was done in the case of Smith v. Smith, 181 Ky. 55" court="Ky. Ct. App." date_filed="1918-06-11" href="https://app.midpage.ai/document/smith-v-smith-7144978?utm_source=webapp" opinion_id="7144978">181 Ky. 55. The trouble with that contention is that no reliance was had in any pleading upon any such doctrine, but if there had been there is no competent proof in this case that defendant was guilty of any such conduct. It is true that by some incompetent hearsay testimony it was attempted to be shown that he had been guilty with a Miss Beynolds, but that intimation was not only dis-proven by him, but also by a number of other witnesses, and we are not prepared to say that the record shows any such guilt on his part, although as a matter of fact it may have been true.
It is furthermore insisted that defendant condoned the lewd and lascivious conduct of plaintiff by marrying her the second time, which no doubt is true as to all such con
Some criticism is made as to the amount of the attorney’s fee allowed the plaintiff, it being insisted that it should be much larger. Such matters are primarily governed by the amount of work performed, but the size of defendant’s estate is a fact which may also be taken into consideration. He is proven in this case to be worth at least one hundred thousand dollars, but the pleadings were short and there were only three sittings for the taking of depositions, which at the outside could not possibly have occupied in their taking more than about four days. There were no complicated law questions involved and under all the facts and circumstances we are not disposed to disturb the allowance made by the court.
Wherefore, the judgment is affirmed;