188 Ky. 692 | Ky. Ct. App. | 1920
Opinion of the Court by
Reversing.
Josephine Wagner brought suit against her husband, Clarence Wagner, for divorce and alimony. A divorce was granted but alimony was denied. Plaintiff was granted an appeal. A few weeks after the judgment was rendered, the defendant died, and the canse has been revived in the name of his administrates.
At the outset it is insisted that plaintiff’s right to alimony abated with her husband’s death, and that this court is without jurisdiction to review the judgment denying alimony, in view of the fact that alimony cannot he now awarded against the husband’s estate. We have frequently ruled that while we have no power to reverse a decree of divorce, we may nevertheless consider the evidence and determine whether or not alimony was properly awarded or refused. Burton v. Burton, 184 Ky. 268, 211 S. W. 869; Benedict v. Benedict, 165 Ky. 499, 177 S. W. 245; Pope v. Pope, 161 Ky. 104, 170 S. W. 504. It therefore follows that we have jurisdic
An extended review, of the facts would serve no useful purpose. In our opinion the evidence fully sustains the grounds relied on by plaintiff. On the other hand, the evidence fails to show that she was guilty of adultery or other misconduct sufficient to deprive her of all right to alimony. True, her conduct in certain respects was highly indiscreet, but we are persuaded that it was due to her husband’s neglect and mistreatment, which destroyed the marriage relation and caused her to seek sympathy and companionship elsewhere, rather than to any moral delinquency on her part. Taking into consideration their station in life, the fact that plaintiff had no property while her husband was possessed of a large estate, and the further fact that she was not altogether free from fault, we conclude that she should have been awarded alimony in the sum of $15,000.00 and her attorneys should have been allowed a fee of .$1,000.00 instead of $500.00 to be taxed as costs.
Judgment reversed and cause remanded with directions to enter judgment in conformity with this opinion.