Dean v. Dean

238 S.W.2d 672, 314 Ky. 872, 1951 Ky. LEXIS 821

• Court: Court of Appeals of Kentucky
• Decided: February 23, 1951
• Status: Published

Opinion

Clay, Commissioner

Affirming in part, reversing in part.

Appellant sought an absolute divorce from ber bus-band on tbe ground of cruel and inhuman treatment. This relief was denied, but appellee was ordered to pay $16 a week for tbe maintenance of bis two infant children. Appellant contends she was entitled to a divorce and alimony; that tbe allowance for tbe children is inadequate; and ber attorneys request an increase in tbe amount of their fee.

Tbe parties were married in 1938. In tbe summer of 1948 appellant moved from their home in Louisville to Winchester. She states as ber reason for leaving: “He bad been behind on tbe rent a number of times, be didn’t work more than ten days — I worked before tbe children were born as long as I could. I even took their money from their banks to pay tbe rent one time when we were two months behind, and our landlord told us when I came home in June unless we could pay tbe back rent and keep it up that be would have to ask for tbe apartment, and that is what happened, be didn’t pay up and be attached our furniture and gave us a week to pay our rent or get out.”

When asked about tbe trouble between them, she stated: “The main thing be didn’t work regularly and support us. I bad to borrow from different ones, my family sent help. All tbe savings I put away for tbe children when I was working while tbe little girl was small I bad to use that.”

Appellant’s principal complaint seems to be that ber husband was lazy, would not find steady employment, and for that reason be did not support bis family as well as be could. He is a carpenter by trade, but also has done gardening work. He did not belong to a union, but on some occasions bad earned as much as $60 or $70 a week. He appears to have been constantly harassed by indebtedness of one kind or another. However, it appears that be did not spend bis earnings on anything but bis family.

Tbe ground for divorce alleged by appellant was cruel and inhuman treatment. We think tbe .Chancellor was fully justified in finding that tbe evidence was insufficient to show cause for divorce. Tbe bonds of matrimony should not be severed simply because one or tbe other spouse has certain shortcomings. Tbe case of Purcell v. Purcell, 197 Ky. 627, 247 S. W. 760, is directly in point, and the facts are quite similar to those before us. The opinion states, 197 Ky. at page 631, 247 S. W. at page 762: “Summing up the whole evidence on this issue, we find only that the husband, being in very moderate circumstances and having a very small income with a growing family, possibly at times was not as generous with or considerate of his wife as a man of different nature and temperament might have been. But this falls short of cruel and inhuman treatment within the meaning of our statute.”

The Court went on to say, 197 Ky. at page 632, 247 S. W. at page 762: “It is only persistent, studied, and habitual misconduct which, if persisted in, will eventually be treated as cruel and inhuman treatment, there being no physical violence or attempted violence.”

On the facts shown, appellant was not entitled to a divorce.

On the question of maintenance for the two infant children, ages six and two, appellant introduced evidence to show that $16 a week was not sufficient to care for them. The mother is working, and it will be necessary for her to employ some one to look after the youngest child when she is away from home. The food and clothing costs will be substantial. We think the allowance for the children should be $25 a week.

Apparently the Chancellor fixed this allowance as low as he did because of some question concerning appellee’s financial condition. It is shown, however, that he is a relatively young man, in good health, and capable of earning between $200 and $300 a month. He has a very positive responsibility to maintain his own children. At the present day and time, with a proper willingness to work on his part, he can amply furnish them their minimum needs. The allowance should be increased as indicated.

The Court allowed appellant’s attorneys $75. This is a small fee, but little evidence was taken in the ease, and it presented no unusual difficulties. Ordinarily a higher fee would be justified, were it not for the fact that we must consider appellee’s ability to pay. Additional expenses have been imposed upon him as the result of this law suit, and his financial condition, as shown by the record, is not too sound. We believe under the circumstances the Chancellor’s judgment in this-matter should be accepted.

The judgment is affirmed in part and reversed in: part for further proceedings consistent with this-opinion.