Morgan v. Morgan , 231 Ky. 420 ( 1929 )

Reversing.

Elva Morgan appeals from a judgment denying her an absolute divorce.

On April 18, 1925, Robert P. Morgan and Miss Elva Mosley were married. On August 5, 1927, Robert P. Morgan filed suit against Elva Morgan for divorce, charging she had left him on December 15, 1926, and that about that time she became guilty of such lewd and lascivious conduct and behavior as proved her to be unchaste.

Morgan never withdrew this charge. He endeavored to prove it and failed utterly. When he completed his proof in Nov. 1927, he knew this charge was groundless yet he persisted in the assertion of it until judgment in August, 1928, a period of more than six months.

For answer, Elva Morgan traversed the petition, and made a counterclaim for divorce upon the grounds of cruel and inhuman treatment. We have often written that the making by a husband of a deliberate and unfounded charge of unchastity and lewd and lascivious conduct against his wife was such cruel and inhuman treatment as would afford her grounds for a divorce. Her other evidence of cruelty was meager but it with this charge of unchastity was enough. She was entitled to the relief sought. Smith v. Smith, 181 Ky. 55, 203 S.W. 884; Johnson v. Johnson,183 Ky. 421, 209 S.W. 385; Nichols v. Nichols, 189 Ky. 500,225 S.W. 147. See, also, 9 Rawle C. L. 345, and 19 C. J. 51.

We have said, however, that it is not such grounds where the husband makes such a charge in good faith with reasonable basis for so doing (see Sallee v. Sallee, 213 Ky. 125, 280 S.W. 932) but we can hardly imagine a case where such a charge would be more groundless than this one.

The chancellor should have given Mrs. Morgan an absolute divorce, and the judgment is reversed, with directions so to do.