168 Ky. 35 | Ky. Ct. App. | 1916
Opinion op the Coubt by
— Affirming on original appeal and reversing on cross-appeal.
Plaintiff, James E. Wills, brought this suit against Ms wife, Lena May Wills, for a divorce on the ground of abandonment and for the cnstody of their infant child. The defendant filed an answer and counter-claim denying the allegations of the petition and asking, a divorce from plaintiff on the ground of cruel and inhuman treatment. It appears that prior to the present action defendant had sued plaintiff for a divorce on precisely the same grounds relied on in her counter-claim and the divorce was denied. By reply in this action, plaintiff pleaded the judgment in the former action denying defendant a divorce in bar of her right to a divorce in this action. Defendant asked
Having in view the welfare of the child, it is the settled practice in this State, in case of divorce, to award the custody of a child of tender years, especially a girl, to the mother, unless it he made to appear that she is not a suitable person. Shallcross v. Shallcross, 135 Ky., 418, 122 S. W., 223; Davis v. Davis, 140 Ky., 526, 131 S. W., 266; Sheehan v. Sheehan, 152 Ky., 191, 152 S. W., 243; Irwin v. Irwin, 96 Ky., 318. On this question a great deal of evidence was heard by the chancellor. It would serve no good purpose to detail it at length. It is sufficient to say that we have given it careful consideration and see no reason for disagreeing with the conclusion reached by the chancellor that the interests of the child would be best subserved by entrusting it to the care of the mother. Nor do we find any reasonable ground for holding that plaintiff should not contribute to the support and maintenance of the child. The child is his. The mother has no estate. He has $2,000.00 and probably $3,000.00. In addition to this, he is making $200.00 a year and his board. Clearly, under these circumstances, the duty of support and maintenance devolves upon the father, and as the sum required to be .paid by him is altogether reasonable, whether considered m the light of his financial condition or the necessities. of the child, we conclude that the chancellor did not err in ordering him to contribute to the support of the child to the extent fixed by the judgment. ' Gilbert v. Gilbert, 149 Ky., 639, 149 S. W., 964.
On the cross-appeal it is insisted that the chancellor erred in refusing defendant alimony pendente lite and
The statute provides:
“Pending an action for any divorce the court may allow the wife maintenance.” Section 2121, Kentucky Statutes. This provision does not vest the court with the arbitrary right either to give or refuse temporary alimony. Nor does it give to the wife an absolute right to maintenance, regardless of the facts in the case. It merely vests the court with a sound legal discretion, dependent for its exercise upon the particular circumstances of the case before it. Campbell v. Campbell, 21 Ky. Law Rep., 19. In view of the chancellor’s holding that the defendant herself was in fault in abandoning plaintiff and of our concurrence with this conclusion, we are of the opinion that he did not abuse his discretion in refusing to allow the wife temporary alimony.
Section 900 of the Kentucky Statutes is as follows:
“In actions for alimony and divorce, the husband shall pay the costs of each party, unless it shall be made to appear in the action the wife is in fault and has ample estate to pay the same.”
In construing this section it has been repeatedly held that in all suits for divorce and alimony the husband is bound to pay the costs of the wife, including a reasonable attorney’s fee unless two things are made to appear in the action : First, that the wife is in fault; and, second, that she has ample estate to pay the costs. Ballard v. Caperton, 59 Ky., 414; Steele v. Steele, 119 Ky., 466.
Neither the fact that she is in fault nor the fact that she has ample estate to pay the costs is alone sufficient to exempt the husband from the liability imposed by the statute. It is only where there is a concurrence of both conditions that he is exempt. Since, in the present case, it appears that the wife has no estate, it follows that plaintiff is liable for the costs, including a reasonable fee to her attorneys. It remains to determine for what services they should be paid by plaintiff. It appears that in the former suit brought by the wife for divorce and alimony precisely the same grounds, occurring at the same time, which she urged, by counter-claim, in this action as' grounds for divorce and alimony, were relied on. For their services in the former action her attorneys were allowed a reasonable fee. We, therefore, conclude that no allowance should be made them in this
On the return of the case the chancellor, will allow the wife’s attorneys a reasonable fee for -their services below oh the basis above pointed out.