Aubrey v. Aubrey

198 S.W.2d 209, 303 Ky. 534, 1946 Ky. LEXIS 887

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: December 13, 1946
• Status: Published

Opinion

Opinion op the Court by

Judge Latimer

Affirming.

This action reaches us by appeal from the Jefferson Circuit Court.

The appellee was plaintiff below. His action for divorce was based on the ground of cruel and inhuman treatment. The defendant, by answer, denied the allegations of plaintiff’s petition, and by counterclaim sought divorce on the ground of cruel and inhuman treatment. Each asked for the custody of their infant child.

The Commissioner heard the testimony introduced by both parties and in his report recommended that the plaintiff be granted an absolute divorce; that he be given the custody of the child, and that the defendant be denied alimony. The court confirmed the Commissioner’s report and entered a judgment accordingly, from which this appeal is prosecuted.

The appellant seeks reversal of the judgment insofar as the custody of the child and appellant’s right to alimony are concerned.

These parties were married in 1929, and at the time of the commencement of the action, their only,child was 14 years of age. However, the defendant had an older son by a former marriage. It appears that the former husband was living somewhere in California. Comparatively few witnesses testified, the chief portion of the testimony being given by the parties to the action. Through a number of years there had been troubles and difficulties in this home. The chief difficulty seems to center more particularly about the gambling of the defendant and her repeated issuance of worthless checks. This, coupled with her arriving home at all hours of the night, and even making a few extended and unannounced trips to various parts of the United States, precipitated the disaster. There appears to have been no abatement of the ills that afflicted this home, but on the contrary, they seem to recur with unfailing regularity. The husband testified concerning all of the above. His testimony was corroborated in a great measure by the little 14 year old girl, who, testifying further, stated that her mother had taken her to night clubs, and on one occasion playéd poker with a bunch of men. A nearby neighbor corroborated in part the testimony of the husband, wherein she stated that on numerous occasions, and at all hours of the night, she would receive calls from the defendant, who asked her to relay messages to defendant’s husband to come and meet her, and that upon each occasion, she had found the husband at home with the little girl. There were filed in the record numerous exhibits of worthless checks; letters received from attorneys and business organizations attempting to collect upon worthless checks given them by her; snapshot picture of two men with whom she claimed to have hitch-hiked a ride to Chicago; and a letter written to her former husband. The defendant denied much of this evidence. She contradicted her husband in many statements that he had made concerning her conduct, and in his claim that he had paid a great many of these worthless checks. She stated that she paid them herself. To support her ground for divorce, she stated that her husband was cross and quarrelsome. He evidently did do considerable quarreling. This he undertook to justify by stating it was all brought about through his reprimanding her for writing these worthless checks, her gambling, and absence from home so much. The defendant did not tell a very convincing story. The Commissioner in commenting upon it in his report stated as follows: “* * * The defendant’s conduct is of such character as to cause your commissioner to make the above recommendations. The defendant refused to answer questions and made such incredible statements that your commissioner could not believe anything she said.”

We are not impressed with-the appellant’s contention that plaintiff was not entitled to an absolute divorce, but instead there should have been granted only a divorce a mensa et thoro, carrying alimony for the defend ant. An examination of tbe record evidences that this contention has no real support in fact. The appellant was repeatedly guilty of acts tending to humiliate ber busband and calculated to disturb bis peace and happiness. Her conduct, obviously, brought about tbe destruction of this home. Her present plight is tbe direct result of ber own acts. We held in Beutel v. Beutel, 262 Ky. 805, 91 S. W. 2d 528, 529: ‘‘ * * * Tbe question of alimony rests largely in tbe discretion of the trial court, and, in allowing or disallowing it and in fixing tbe amount thereof, if any be allowed, tbe court will take into consideration tbe estate and income of tbe wife and tbe relative financial conditions .of ber and ber busband and, among other things, tbe relative cause or fault of tbe respective parties culminating in'the divorce.” See also Hockensmith v. Hockensmith, 286 Ky. 448, 151 S. W. 2d 37, and Nall v. Nall, 287 Ky. 355, 153 S. W. 2d 909.

We consider now tbe matter of tbe custody of tbe child. It is a well settled rule of this court that tbe matter of tbe custody of a child is controlled in a large measure by a consideration of tbe welfare of tbe child. True, tbe fitness of tbe parent is always a corollary consideration. Tbe wishes of tbe parents become secondary. However, tbe above rule is not entirely inflexible. Consequently, tbe question of custody must be determined by tbe facts in each particular case. See Burke v. Burke, 267 Ky. 734, 103 S. W. 2d 291; Perkins v. Perkins, 291 Ky. 571, 165 S. W. 2d 152; and Slusher v. Slusher, 298 Ky. 400, 182 S. W. 2d 972.

Tbe record justified tbe report submitted by tbe Commissioner and abundantly supports tbe judgment of tbe chancellor.

Tbe judgment is affirmed.