Holman v. Holman

Opinion of the Court by

Judge Settle

Affirming on original and reversing on cross appeal.

Appellee brought this action against appellant for a: divorce a vinculo, basing his right thereto on subsection 3, of that part of section 2117, Kentucky Statutes, containing grounds upon which a divorce may be obtained by the husband alone.

Appellant answered traversing the averments of the' petition and setting up claim to alimony, to recover which the answer was made a counterclaim. All affirmative matter of the answer and counterclaim was controverted by reply. Following the taking of proof by the parties and the submission of the case, the circuit court rendered judgment, granting appelleé a divorce a mensa, and dismissing the appellant’s counterclaim for alimony. From so much of the judgment as refused appellant alimony, she has appealed, and from that part of the judgment refusing appellee a divorce a vinculo, he prosecutes a cross appeal.

After reading with great care the more than eleven hundred pages of proof and one hundred and forty-two pages of briefs of able counsel found in this record, to say nothing of the pleadings presenting the issues involved, we have regretfully .reached the conclusion that the circuit court erred in refusing appellee an absolute divorce; the regret arising, not from any doubt as to what our decision should be, but from the necessity that compels us to record a judgment that must reflect upon the wife. . ...

It would unduly extend the opinion and accomplish no good to give a synopsis of the evidence or enter upon an analysis of the facts which furnish the reasons for our judgment, asi we would not add to the burden it will cast upon the appellant, or unnecessarily place in the record anything that would tend to injure her in the estimation of the numerous friends and acquaintances who have so loyally testified as to their confidence in and regard for her. It is sufficient to say that the husband’s right to the absolute divorce prayed is amply sustained by the evidence appearing in the record; and this being’ our decision, it necessarily follows that though the circuit court erred in refusing appellee an absolute divorce, it did not err in refusing appellant alimony.

For the reasons indicated the judgment of the circuit court is affirmed on the original appeal and reversed on the cross appeal, and the cause remanded, with direction to enter a judgment granting appellee a divorce a vinculo.