Stratton v. Stratton

211 S.W.2d 685, 307 Ky. 505, 1948 Ky. LEXIS 776

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 21, 1948
• Status: Published

Opinion

Opinion of the Court by

Clay, Commissioner

Affirming.

This is a divorce action. Appellant, the wife, filed the original suit alleging cruel and inhuman treatment. By answer and counterclaim the husband, appellee, prayed a divorce on the same ground. The Chancellor dismissed appellant’s petition, granted appellee an absolute divorce, and restored to appellee appellant’s half interest in a tract of real estate owned jointly by the parties.

Appellant’s grounds for reversal are that she should have been awarded alimony and the Court should not have restored her interest in the real estate to appellee.

The parties were married in 1910, and raised six children, none of whom are involved in this litigation. They lived in the small community of Leckieville in Pike County. Appellee at one time was a railroad man, but for the past seven or eight years had been employed as a tipple foreman by a coal mining company. His earnings have been $300 to $350 a month, and he has saved some $3,000 or $4,000. Appellant owns an automobile and bas a small estate, but no apparent source of income.

Appellant attempted to prove tbat for a great number of years she bad been mistreated by ber husband. It is not necessary to go into detail because tbe accusations are not novel, nor would it serve any useful purpose to recite them here. Her statements bad some slight support in tbe testimony of ber daughter and son-in-law who lived with tbe parties in their home for a few months prior to tbe time suit was filed.

Appellee denied categorically all of appellant’s accusations, and testified tbat appellant’s actions bad created an unhappy home life for him. His testimony is supported by that of neighbors and members of bis church who stated tbat be was an industrious, bard working, thrifty man with a very good reputation in tbe community. While tbe wife attempted to prove tbat tbe husband was not a good provider, it is shown tbat be bas always taken good care of bis home and bis family. One of tbe wife’s principal complaints was tbat tbe husband would not let ber run charge accounts at numerous stores in tbe vicinity of their home, but the actions of tbe husband in this respect appear justified on tbe record.

It appears tbe parties have quarreled from time to time, as many married people do, but tbe wife failed to demonstrate tbat sbe was not at fault. We, of course, cannot go behind tbe divorce decree, but have considered all tbe facts of tbe case to determine whether or not sbe is entitled to alimony, even though tbe husband was granted tbe divorce. Tbe evidence is conflicting concerning tbe fault of tbe parties, but we believe it preponderates in tbe husband’s favor. Even if we bad some doubt, we should follow tbe judgment of tbe Chancellor. See Johnson v. Johnson, 296 Ky. 155, 176 S. W. 2d 256. Since the husband was granted tbe divorce and this judgment was justified, tbe disallowance of alimony to tbe wife did not constitute an abuse of a sound judicial discretion.

With respect to tbe restoration to tbe husband of bis wife’s interest in their joint property, such adjudication was required by Section 403.060, KRS, and Sec tion 425, Kentucky Civil Code of Practice. The Chancellor properly determined that the husband purchased the real estate and the wife’s interest was gratuitously bestowed upon her by him during the marriage and in consideration of the marriage. Under such circumstances, he was entitled to have his own property returned to him. See Woford v. Woford, 267 Ky. 787, 103 S. W. 2d 296.

For the reasons stated, the judgment is affirmed.