Asher v. Asher

60 S.W.2d 592, 249 Ky. 215, 1933 Ky. LEXIS 504

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 16, 1933
• Status: Published

Opinion

Opinion op the Court bt

Cread, Commissionee

Affirming on appeal, and affirming in part and reversing in part on cross-appeal.

At the March term of the Leslie circuit court, 1931, a judgment was entered in an action styled Rose Asher, plaintiff, against John Asher, defendant, granting to the former an absolute divorce and adjudging that defendant pay all costs of the action.

Thereafter, this action in equity was instituted by Rose Asher against John Asher, and in her petition it is alleged that the action in which the judgment was rendered was fraudulently, wrongfully, and without her knowledge and consent filed and prosecuted to judgment by the defendant in the name of plaintiff; that he caused the action to be submitted to the court upon evidence taken by him or by others at his solicitation, instance, and request, and she asked that the judgment be canceled, set aside, and held for naught.

In a second paragraph, she made all necessary allegations to entitle her to a divorce from defendant on the grounds of cruel and inhuman treatment and further alleged that during the twelve months next before the filing of her action, defendant had been living in adultery with another woman named in the petition. On these grounds she asked for absolute divorce, for the custody of the children born to her and defendant, and for $10,000 alimony and also for judgment for sums alleged to have been lent to defendant.

By answer and counterclaim, defendant denied the allegations of the petition and alleged that plaintiff owed him certain sums for which he prayed judgment, and in an amended answer and counterclaim alleged that in 1922, plaintiff committed adultery and was guilty of such lewd and lascivious conduct as proved her to be unchaste; that he never condoned her offense or cohabited with her after he acquired knowledge of her conduct; and he prayed in the event the former judgment was set aside that he be granted a divorce on the grounds alleged.

After the respective parties had taken proof covering nearly a thousand pages of transcript, the cause was submitted and it was adjudged that the judgment in the former action is and has at all times since its rendition been valid, and in full force and effect; that plaintiff’s petition for divorce be dismissed, but that she recover of defendant $1,500 in alimony payable in three installments and that after payment of the last installment she be paid the sum of $30 per month until further orders of the court; that the defendant have the custody of the children; that plaintiff recover nothing on her demand for money alleged to have been lent defendant; and that defendant recover nothing on his claim for money alleged to have been advanced to plaintiff. It was further adjudged that defendant pay the costs of this action, but that plaintiff be allowed nothing to pay her attorneys for prosecuting skme because a fee of $100 had been allowed for the attorney alleged to have represented her in the former action.

Prom so much of the judgment as awards plaintiff alimony, defendant is prosecuting an appeal, and from so much, of tte judgment as denied plaintiff otter relief asked for in ter petition, ste is prosecuting a cross-appeal.

As grounds for reversal it is argued by counsel for appellee ttat tte judgment on tte former action is void because procured by fraud and ttat tte ctancellor was authorized to and stould tave set it aside and granted appellee a divorce on tte proof in ttis action; ttat tte alimony awarded appellee is inadequate; and ttat tte court erred in not allowing a fee to ter attorneys for filing and prosecuting ttis action.

On betalf of appellant it is argued ttat tte former judgment tas at all times been in full force and effect and appellee cannot maintain an action for alimony; ttat appellee is making a collateral attack upon tte judgment; ttat tte evidence as to tte ctaracter and ¡habits of appellee is suet as to stow ttat ste is in no event entitled to alimony.

Counsel for appellant cite section 950-1, Kentucky Statutes, in support of argument ttat. no appeal is allowable from a judgment granting a divorce and ttat suet a judgment can be set aside only as provided by section 426 of tte Civil Code of Practice. On tte otter hand, it is argued by counsel for appellee that tte Code provisions relating to void judgments apply to judgments in divorce cases as well as to otter actions and in support of ttis argument cite Logsdon v. Logsdon, 204 Ky. 104, 263 S. W. 728, and a number of otter cases.

In tte Logsdon Case it was held ttat tte judgment for divorce was void because obtained by tte husband by false, fraudulent, and perjured statements as to tte residence of tis wife, making it appear ttat tte court tad jurisdiction of defendant when in fact it did not.

Here it is shown ttat tte wife did not institute or prosecute tte action for divorce in which tte former judgment was rendered, but ttat tte petition was prepared or caused to be prepared by tte husband, and all subsequent steps up to and including tte preparation and entry of tte judgment were taken at tis instance and without knowledge upon the part of tte wife. However, it does appear ttat tte wife signed tte petition, but she claims she did this under threats and duress of ter husband and ttis occurred almost two years before tte judgment was entered. It further appears ttat ■while she had some knowledge that the action was instituted and was pending, she had been assured by appel: lee and by the court that no judgment would be entered without her consent.

Fortunately we are spared from reviewing the evidence introduced to support the grounds for divorce alleged by the respective parties in this action since the conclusions reached render such review unnecessary. It is also unnecessary to determine whether in the circumstances the judgment is void and the action of the chancellor in refusing to set it aside reviewable by this court, since so far as the judgment for divorce' is concerned, both parties have the relief they were seeking and nothing would be gained by appellee in having that judgment set aside.

While we are not inclined to disturb the chancellor’s finding with respect to the former judgment, we are not impressed with appellant’s argument that ap-pellee cannot maintain an action for alimony. If she liad instituted the action for divorce and prosecuted it to final judgment granting to her an absolute divorce without asking for or having her right to alimony determined, she would be precluded by the judgment. But no such state of ease is presented by the record. It is clearly made to appear that the judgment was procured by fraud and should not have been rendered. Equity will not permit a judgment' so procured to be interposed to defeat a just claim of the wife to alimony, and since she could not secure relief by appeal from the judgment granting her a divorce, she is pursuing the only remedy available to her after she discovered the fraud.

There is ample evidence supporting the chancellor’s finding that appellee is entitled to alimony and a judgment for a larger sum might have been upheld; however, in view of proof as to ability of appellee to earn money and the other proven facts and circumstances, we cannot say that the amount awarded is inadequate.

In the circumstances we are constrained to hold that the court erred in not allowing a reasonable fee to attorneys for appellee to be taxed as costs; however, the amount asked by her counsel is excessive and it appears that $200 would be a reasonable fee for the necessary services rendered.

Wherefore the judgment is affirmed on appeal, and is affirmed in part and reversed in part on cross-appeal, with directions to enter judgment in conformity with this opinion.