113 Ky. 841 | Ky. Ct. App. | 1902
Opinion of the court by
Reversing.
This action for divorce a mensa et tlioro and for the custody of their children was instituted by the wife, appellant.
•Section 2121. Kentucky Statutes, enumerating causes for divorce from bed and board, provides: “Judgment for separation or divorce from bed and board may also be rendered for any of the causes which allow divorce, or for such other cause as the court in its discretion may deem sufficient." The principal question presented by this appeal is whether the conduct of the husband, shown by the record, justified or required the granting of a divorce to appellant from bed and board. It is argued for appellee that appellant staked her case upon the statutory provision of section 2117, Kentucky Statutes (sub-sec. 2, applicable to the wife), viz.: “Habitually behaving toward her by the husband, for not less than six months, in such cruel and. inhuman manner as to indicate a settled aversion to her, or to destroy permanently her peace ajnd happiness,” — and that, if she has not sustained that charge by the proof, her petition was rightfully dismissed. Before entering upen a discussion of the main question involved, it occurs to us that The one of practice raised by appellee's argument is important, and needs settling. It is to be observed that the circuit court is not restricted to tha statutory causes for granting divorces a vinculo matrimonii in granting divorce from bed and board. He may, in his discretion, grant the latter separation for a less cause than those enumerated in the statute (section 2117). But, as said in Shrock v. Shrock, 4 Bush, 684: “Of course, the discretion thus conferred is not to be understood as arbitrary or unlimited, bul a sound legal discretion, and only to be exer
The Question, then, recurs /to whether the allegations of the bill were proven, or sufficiently proven, to justify or demand such an exercise of power by the circuit' court. It W'as shown that appellee was employed in a picture molding establishment at Cincinnati. His home* was at Erlanger, Ky. He went daily in the-morning to his; place of business, returning generally on a train leaving Cincinnati at (5:30 p. m. In the fall of 1S99 he began staying in the city of Cincinnati over night at times; at others not returning fill the last train, which left Cincinnati at 8 o’clock p. in. His explanations to his wife were that liis business detained him. Rhe accidentally learned that this was untrue; that he was spending his evenings with a woman, who also lived at Erlanger, but worked in Cincinnati: On being-questioned by his wife, he denied the fact of his meeting the woman, claiming that it was a case of mistaken identity; that the woman he -was seen with was an employe of the shop, etc. The wife had then a baby some four months old, and was detained at home most of the time. But she procured her sisters, two of whom lived in Cincinnati, and a constable and his assistant, also living there, to watch the parties. They testify to appellee’s meeting “with his co-respondent almost daily after working" hours for a period of six weeks; taking long walks Or'street car rides with her, frequently to some park, where they would sif in some secluded spot; that he bought her 'flow'ers and candy; that in his walks he selected unfrequented streets- or roads; and on more than one occasion was seen to embrace and kiss his co-respondent; that severál times the watchers at a certain isolated point would lose trace'of them, but at last saw fbem enter a deserted house, advertised “To Let,’’
Since this suit appellee has conveyed his homestead to his sister-in-law for the recited consideration of $1,250.' The issues and proof on this branch are not sufficient to yc-t justify a decision. It should he further prepared. The husband, appellee, earns admittedly $17 per week, posribly
The judgment 5s reversed, and the canse remanded with directions to grant the appellant a divorce from bed and board from appellee; to award her the custody of the children, affording appellee reasonable opportunities to visit them and have them visit him; for a judgment decreeing appellant a suitable maintenance, not less than $30 per month, m addition to the use of the house; and for other necessary proceedings not inconsistent herewith.