Epling v. Epling

64 Ky. 74, 1 Bush 74, 1866 Ky. LEXIS 90

• Court: Court of Appeals of Kentucky
• Decided: December 18, 1866
• Status: Published

Opinion

CHIEF JUSTICE PETERS

delivered the opinion op the court:

Appellant brought this action in the court below to obtain a divorce from appellee, which was refused by said court.

Section 1, article 3, chapter 47 (2 vol. R. S., p. 17), provides that courts having chancery jurisdiction may decree a divorce to the party not in fault. 1. For abandonment, or like separation by one party from the other for one year.

The petition fails to allege that appellant’s wife abandoned or separated from him without his fault, as required by the statute above referred to. If a party for mere separation would be entitled to a divorce, he might so conduct himself towards his wife, when, for the most trivial cause, or even without any cause at all, but from mere caprice, he should incline to a dissolution of the marriage contract, • as to render it impossible for her to live with him in peace or safety; and then ask the chancellor to decree him a divorce for a separation, which he had provoked in order to accomplish his wicked purpose; but it is sufficient that the statute only provides this remedy for a party not in fault, and the court has no power, if it had-the inclination, to require less. Wherefore, as appellant had failed to allege and prove the material fact, his petition was properly dismissed.

Wherefore, the judgment is affirmed.