Nall v. Nall

282 S.W.2d 620
CourtCourt of Appeals of Kentucky
DecidedSeptember 30, 1955
StatusPublished

This text of 282 S.W.2d 620 (Nall v. Nall) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nall v. Nall, 282 S.W.2d 620 (Ky. Ct. App. 1955).

Opinion

MOREMEN, Judge.

Appellant, Clark Nall, has appealed from a'- judgment which granted to his wife, Lorene Nall, a lump sum alimony in the amount of $3,500, reimbursement for doc-' tors’ and medical bills in1 the sum of $222.-35, and an allowance to her attorneys in the sum of $500. The attorneys were not made parties to this appeal and, -therefore, the question of the amount-of their fee is not before the court.

[621]*621On this appeal appellant argues (1) that there is no evidence to support the judgment; (2) that appellant should have been granted a divorce on his counter-claim; (3) that the award of alimony was excessive; (4) that the supplemental judgment ordering appellant to pay $222.35 as reimbursement to appellee for doctors’ and hospital bills paid was erroneous; (5) that the judgment erroneously ordered certain real property to be sold to satisfy the award of alimony.

The parties were married in 1947 and lived in and about Hartford, Ky. on various, farms. They seem to have been a working couple and the wife apparently readily joined in manual labor which is not ordinarily done by modern farm women. Appellant has engaged in farming all his life and the last few years of the marriage he dealt in standard bred -horses which he trained and raced in harness events at fairs and horse shows. During this period the wife accompanied him on the circuits and also helped him improve various farms for resale. In general -they seem to' have" been happy enough. However, .in 1950, the wife became ill and submitted to an almost complete hysterectomy. It was following this time that the marital difficulties arose. Mrs. Nall was sick a good deal of the time and was unable to be as active in the farm work and marital partnership as-she had been in the past. ■ In June 1953, upon advice of her physician, she was required to move into a trailer owned by the couple which was placed in the city of Hartford, and there she stayed until their separation on August 28, 1953.

To sustain her charge of cruel and inhuman treatment, Mrs. Nall testified — and' she was corroborated in a slight degree by her witnesses — that appellant became irritable and dissatisfied with her after the operation, that he neglected her during- her illness, refused to stay with' her or pay even slight attention to her during her period of sickness, did not take hér to the horse shows, or do any of those things which he customarily had' done prior to her operation. He refused to stay with her on many occasions at night but would come home after working hours, get clean clothes, go out and not return for several hours. She said he told her he was tired of married life, that she did not fit into his plans and he intended to get a job as deputy sheriff. Her testimony that she performed manual labor on the farm, such as building fences, sowing seed, milking, gathering corn, tearing down and repairing buildings and raising vegetable gardens, was amply corroborated by other witnesses. It seems that prior to the operation she gladly worked on these occasions. It was only after she became sick that she objected to the strenuous work and she complained because appellant required her to leave a sick couch and help him saw a tree with a crosscut saw.

On the other hand, appellant, in support of his counter-claim — which was based upon a cruel and inhuman treatment allegation and- an averment that appellee had an outrageous temper, KRS 403.020(4) (e)— testified that appellee would nag him. about small matters and had accused him in public of infidelity without ’ basis for such an- accusation. He stated .that each time he moved appellee to a new home- she would become dissatisfied and require him -to move her back near her mother; that on one occasion she actually seized a shotgun and attempted to do him violence before he disarmed her. Appellant, too, is corroborated in part by the testimony of numerous witnesses.

Each party denied the substantial testimony introduced by the other and the chancellor was confronted with a direct conflict in testimony. He elected to accept the testimony offered by appellee and we find no compelling reason why we should substitute our judgment for his.

Appellant argues in effect that the only evidence to support- the -judgment granting appellee -a divorce was her uncorroborated testimony of cruel and inhuman treatment which is insufficient to authorize a divorce. In Jones v.-Jones, Ky., 246 S.W.2d 583, 584, it was said:

“These provisions of our law do not require the testimony of more than one [622]*622■witness to establish the existence of any ground relied upon for divorce, except to .sustain the charge of adultery or of lewd and lascivious behavior. Maher v. Maher, 295 Ky. 263, 174 S.W.2d 289; and Stibbins v. Stibbins, 1 Metc. 476, 58 Ky. 476.”

The chancellor elected to accept the wife’s testimony as being true and there is sufficient evidence in this record to support the judgment.

In connection with appellant’s contention that he should have been granted a divorce on his counter-claim, it is argued that it is not necessary that the husband show he is without, fault or like fault in a claim of cruel and inhuman treatment, whereas it is necessary that the wife plead and prove she is not at like fault in such a case, the inference being that the husband is in an advantageous position in a divorce suit based upon that ground, and reliance is had upon Muth v. Muth, 314 Ky. 531, 236 S.W.2d 469. It was pointed out in Fenner v. Fenner, Ky., 273 S.W.2d 803, that the statement in Muth v. Muth was not necessary to the decision in the case and 'it was held that recrimination is a complete bar to the right of a party to obtain a divorce.

The husband next complains that the alimony award of $3,500 is excessive. The record discloses that at the time of the separation they owned the following property approximately: a farm identified as the Ragland farm of 100 acres; another farm referred to as the Rosine farm of 42. acres; a house trailer purchased in 1951; a 1950 model truck; 30 to 40 head of cattle; 4 standard bred harness horses; and one-third interest in a house located in Hartford, Ky. It is conceded in the brief for appellant that the net value of his estate is $8,070: On the other hand, the appellee in her brief as to the approximate value of. the above mentioned items places the estate at $13,600. The appellee is 33 years of age and is sick. She has no training for a vocation and from the testimony, of her physician, it is unlikely that she can successfully obtain’ employment. The appellant is 43 years of age and except for a fifteen per cent army physical disability, for which he is compensated, he is in good health and from the record the impression is gained that he is a.good businessman and well able to make his way in the world. The record indicates the parties placed the following values on the property:

Husband’s Appraisal Wife’s Appraisal
Rosine Farm (42 acres) Ragland Farm $3500.00 $4500.00
(100 acres) 2500.00 5000.00
House trailer 500.00 500.00
1950 Truck 500.00 500.00

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Related

Piersall v. Piersall
194 S.W.2d 627 (Court of Appeals of Kentucky (pre-1976), 1946)
Webster v. Webster
108 S.W.2d 724 (Court of Appeals of Kentucky (pre-1976), 1937)
Maher v. Maher
174 S.W.2d 289 (Court of Appeals of Kentucky (pre-1976), 1943)
Muth v. Muth
236 S.W.2d 469 (Court of Appeals of Kentucky, 1951)
Jones v. Jones
246 S.W.2d 583 (Court of Appeals of Kentucky, 1952)
Fenner v. Fenner
273 S.W.2d 803 (Court of Appeals of Kentucky, 1954)
Tyler v. Tyler
34 S.W. 898 (Court of Appeals of Kentucky, 1896)
Stibbins v. Stibbins
58 Ky. 476 (Court of Appeals of Kentucky, 1858)

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Bluebook (online)
282 S.W.2d 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nall-v-nall-kyctapp-1955.