Ray v. Ray

196 S.W.2d 609, 302 Ky. 788, 1946 Ky. LEXIS 766

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: September 24, 1946
• Status: Published

Opinion

Opinion of the Court by

Judge Cammack

Affirming.

Paul Ray instituted this proceeding in 1944 for a divorce on the grounds of adultery and lewd and lascivious conduct on the part of his wife. Pie was then in the armed services. In her cross-petition Mrs. Ray sought a divorce on the ground of abandonment. She also sought custody of their son, who was then five years of age. A settlement was entered into and it was agreed that Mrs. Ray should be granted a divorce. However, no judgment was entered and, when a dispute arose between the chancellor and Mrs. Ray’s attorney, it was agreed that proof be heard orally on Mrs. Ray’s cross-petition. Thereafter the chancellor entered a judgment granting Mr. Ray a divorce. The custody of the infant was divided between the maternal and paternal grandparents, as the parties had originally agreed.

On lrer appeal Mrs. Bay is insisting that Mr. Bay’spetitioij. was defective and that she should have been, awarded a divorce, and also that she should be given the custody of the child and alimony. There is no bill of exceptions, and, since the proof was heard orally, we can consider only the pleadings to see whether the judgment is proper. City of London v. Barnett, 228 Ky. 471, 15 S. W. 2d 286.

Even if it be conceded that there was a defect in the pleadings, which we do not, the judgment granting a divorce would have been erroneous only .and not void. We may say in passing, however, that, since the welfare of h child is involved, we have examined all of the record that has been brought before us and we have no hesitancy in saying that the judgment is proper in all» respects.

Judgment affirmed.