Tanner v. Tanner

442 S.W.2d 558, 1969 Ky. LEXIS 266
CourtCourt of Appeals of Kentucky
DecidedApril 25, 1969
StatusPublished

This text of 442 S.W.2d 558 (Tanner v. Tanner) 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
Tanner v. Tanner, 442 S.W.2d 558, 1969 Ky. LEXIS 266 (Ky. Ct. App. 1969).

Opinion

DAVIS, Commissioner.

This is a divorce action in which the plaintiff-wife appeals from the judgment which awarded divorce to the defendant-husband, asserting that (1) the divorce should have been awarded to her and not to the husband; (2) the court’s allowance of $20 per week in support of a minor child is grossly inadequate; (3) the court erred in awarding only $5,000 to the wife as alimony and restoration of property; (4) the court improperly allowed a credit to the husband of $100 per month for each month since December 1965 during which the wife and child occupied the residence of the parties; (5) the court improperly awarded to the husband a jointly owned residence and some of the furnishings in it; and (6) a reasonable allowance should be made to the appellant to defray the expense of her attorney on this appeal.

The husband has cross-appealed urging that (1) the trial court should not have allowed any alimony to the appellant; (2) the court should not have directed payment of an attorney’s fee for the wife by the husband; and (3) no attorney’s fee for services on appeal should be allowed.

The parties were married in 1950 and lived together, more or less continuously, until December 12, 1965, when the husband left the wife. One child was born of the marriage, a son who will be eighteen years old on May 18, 1969.

The divorce action before us was instituted by the wife on December 15, 1965, three days after her husband left home. The ground asserted was cruel and inhuman treatment. KRS 403.020(3) (b). In her complaint the wife sought alimony and maintenance pendente lite for herself and child in a sum of not less than $100 per week. She also asserted entitlement to a residence deeded to her and her husband jointly, as well as the furniture and furnishings in it. The wife asked to be awarded the custody of the child.

The husband answered and counterclaimed, asserting his ground for divorce as cruel and inhuman treatment within the purview of KRS 403.020(4) (d). He prayed that the wife’s complaint be dismissed and that she take nothing as alimony or restoration and sought custody of the child for himself.

The litigation proceeded somewhat spasmodically and finally came to judgment on July 12, 1968. As noted, the chancellor awarded a divorce to the husband. In his findings of fact and conclusions of law touching this point, the trial judge recited:

“The plaintiff has habitually behaved toward the defendant for not less than six months in such a cruel and inhuman manner as to indicate a settled aversion to him and such as to destroy permanently his peace and happiness, in that she has repeatedly refused him the love and affection due him from her, and has will[560]*560fully interfered with their marital relations by her activities with other men.”

In awarding custody of the child to the wife, the court remarked:

“Although the conduct of the plaintiff with respect to the defendant has been gravely in error (and the defendant himself is not found to be totally without fault in this regard), the Court finds that the welfare of this child is best to be served by placing his custody with the plaintiff, who is a fit and proper person for such trust, it further appearing that said child at the age of 15 acknowledged in open court that he preferred to live with his mother.”

The court then directed that the husband should pay to the wife for the support of the child the sum of $20 per week, subject to further order of the court. Then the trial court recited:

“In view of the substantial contributions of the plaintiff, both by services and by application of her considerable earnings over the years, she is entitled to alimony and restoration in the sum of $5,000.00, to be paid at the rate of $25.00 per week by the defendant, with said gross sum being subject to a credit in favor of the defendant to be computed by taking the number of months during which the plaintiff has occupied or had possession of the residence of the parties * * * during the period beginning December 15, 1965, and ending when the plaintiff removes herself and her possessions from subject property, and multiplying said number of months by $100.-00, with the resulting product to be deducted from said lump sum alimony.”

As an additional allowance, the court directed that the wife should retain a 1959 Ford automobile and certain furniture and appliances not including a television and stereo phonograph. It is provided in the judgment that the residence, title of which was in both parties, should be the sole property of the husband. The court then allowed the wife an attorney’s fee payable to cross-appellee, Honorable Kenny Grantz, in the sum of $500.

It would serve no beneficial purpose to recount in detail the charges and counter-charges presented in this acrimonious divorce case. There was some evidence that the wife had deported herself indiscreetly, to say the least, on som,e few occasions, and there was evidence which would warrant an inference that the husband may have done likewise. The trial court made no specific finding of moral delinquency against the wife, although the euphemistic phraseology that she “has willfully interfered with their marital relations by her activities with other men” may reasonably be construed as reflecting the chancellor’s finding that the wife had been guilty of moral delinquency. On that premise the appellee-husband, in his cross-appeal, contends that the wife should not have been awarded any alimony and relies on Coleman v. Coleman, Ky., 269 S.W.2d 730; Patterson v. Patterson, Ky., 323 S.W.2d 862; and Carter v. Carter, Ky., 382 S.W.2d 400. None of those decisions appears squarely controlling on the point in question. In Traughber v. Traughber, Ky., 434 S.W.2d 643, we pointed out that our cases have held that comparative fault is not a crucial factor in fixing alimony, although moral delinquency is a particular type of fault which will affect the amount of an alimony allowance. In Traughber, the trial court specifically found that the wife had been proven guilty of lewd and lascivious conduct, but we noted that an allowance to the wife out of the estate accumulated during marriage was not absolutely barred by a showing of the wife’s moral delinquency, and relied upon Legel v. Legel, Ky., 382 S.W.2d 870.

It was shown that the husband has earnings somewhat in excess of $12,000 per year, and it was also shown that the wife had been gainfully employed during much of the duration of the marriage. About all that might be said to have been accumulated during the marriage was the equity in the residence property deeded jointly to the parties. The chancellor did [561]*561not specify what portion of the $5,000 awarded the wife was deemed to be alimony and what portion was considered restoration. In our view the fault of the wife, if it be specifically regarded as amounting to “moral delinquency,” was not so pervasive as to utterly destroy her right to restoration and some allowance of alimony.

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Related

Coleman v. Coleman
269 S.W.2d 730 (Court of Appeals of Kentucky (pre-1976), 1954)
Robinson v. Robinson
363 S.W.2d 111 (Court of Appeals of Kentucky (pre-1976), 1962)
Legel v. Legel
382 S.W.2d 870 (Court of Appeals of Kentucky (pre-1976), 1964)
Carter v. Carter
382 S.W.2d 400 (Court of Appeals of Kentucky (pre-1976), 1964)
Patterson v. Patterson
323 S.W.2d 862 (Court of Appeals of Kentucky (pre-1976), 1959)
Francisco v. Francisco
331 S.W.2d 279 (Court of Appeals of Kentucky, 1960)
Heustis v. Heustis
381 S.W.2d 533 (Court of Appeals of Kentucky, 1964)
Traughber v. Traughber
434 S.W.2d 643 (Court of Appeals of Kentucky, 1968)

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Bluebook (online)
442 S.W.2d 558, 1969 Ky. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tanner-v-tanner-kyctapp-1969.