Citation Numbers: 171 S.W.2d 10, 294 Ky. 84, 1943 Ky. LEXIS 390
Judges: Cammack
Filed Date: 4/27/1943
Status: Precedential
Modified Date: 10/19/2024
Affirming in part and reversing in part.
The Penningtons were married in Greenup County in 1920. Three children were born to the union; a boy, now in the Navy, and two infant girls, one 13 and the other 11 years of age when this action was instituted. The appellee, E.B. Pennington, purchased a small piece of property in 1925, referred to as the Caroline property, consisting of a house and four acres of ground. The deed was taken in the name of the wife, Edna Pennington, the appellant herein. In 1930, Pennington bought a piece of property in Fullerton against which there is now a debt of some $2,500. The deed to that piece of property was also taken in the name of the wife. Pennington was adjudged a bankrupt in 1931. His schedule of assets made no mention of the aforementioned properties. The appellee instituted this proceeding in 1941, seeking an absolute divorce on the grounds of cruel and inhuman treatment, and lewd and lascivious conduct on the part of the appellant. He asked custody of the two infant girls, and for a restoration of the real estate held in the name of the appellant. In her answer and counterclaim Mrs. Pennington denied the charges advanced by her husband, and in turn sought a divorce upon the grounds of habitual cruelty and adultery on the part of her husband. She asked the care and custody of the two infant girls, and maintenance for them, as well as alimony for herself and a fee for her attorney. The trial resulted in a judgment granting a divorce to the appellee, the restoration of the Fullerton property to him, the retention of the Caroline property by the appellant, the leaving of the two girls with their mother with an allowance of $40 per month for their maintenance, and the denial of alimony for the wife and an allowance for her attorney. Mrs. Pennington is insisting it was error to *Page 86 divest her of the Fullerton property, that the allowance of $40 per month for the two children is inadequate, that she should have been allowed alimony, and that there should have been a reasonable allowance for a fee for her attorney.
The record reveals that the married life of the Penningtons was quite turbulent. Mrs. Pennington is a very high-tempered woman, and the record warrants the statement in the judgment to the effect that her one redeeming feature was her ability to save money, and to her should be given considerable credit for the accumulation of the property. The appellee has been employed as a brakeman by the C. O. Railway Company for a number of years. He has made good wages. Upon cross-examination he said he was making $234 a month, though he said on direct examination he was making only $180 per month.
It would serve no good purpose to review the testimony as to the difficulties between the Penningtons. We have examined the record carefully and are convinced the chancellor properly adjudged a divorce to the appellee. While the appellant earnestly insists the accusations of lewd and lascivious conduct were unfounded, and, therefore, sufficient to constitute cruel and inhuman treatment and a proper ground for divorce, we have no hesitancy in saying we believe the charges were made in good faith and upon reasonable grounds. Even if they were proved to be untrue, there is ample evidence relating to the conduct and statements of Mrs. Pennington which would have warranted their being made. Under the circumstances, such charges would not constitute cruel and inhuman treatment. Wiggins v. Wiggins,
We turn now to the question of the allowance of $40 per month for the maintenance of the two young girls. We believe that allowance to be too small, regardless of whether Pennington's monthly income is $180 or $234. In addition to his monthly income he has the Fullerton property. The record does not disclose the present value of that property, but it was purchased for around $5,000 in 1930. We may say in this connection that, while the judgment does not specifically direct, the debt on the property, as between the parties, falls upon the appellee and we so interpret it.
In the case of Braden v. Braden,
We are also of the opinion that an allowance should have been made for a fee for Mrs. Pennington's attorney. KRS
Section 425 of the Civil Code of Practice directs that every judgment for divorce from the bonds of matrimony shall contain an order restoring any property not disposed of at the beginning of the action, which either party may have obtained, directly or indirectly, from or *Page 88 through the other, during marriage, in consideration or by reason thereof. The two pieces of property held in the name of Mrs. Pennington were obtained through money coming into the hands of Pennington, though it is true, as we have indicated, that the good business judgment and management on the part of Mrs. Pennington constituted no small part in the acquisition of the property. Under the circumstances, the chancellor could have adjudged that all the property should have been restored to the appellee, but there is no cross-appeal, so we will concern ourselves no further with that phase of the case.
But the charge is made that the action of Pennington in failing to list his interest in the two pieces of property on his schedule of assets when he was adjudged a bankrupt in 1931 constituted fraud on his part, and therefore places him in a position where he comes into equity with unclean hands. In the case of Honaker v. Honaker,
Wherefore, the judgment is affirmed as to the restoration of the Fullerton property to the appellee, and the denial of alimony to the appellant. It is reversed as to the allowance for the maintenance of the two infant children *Page 89 and an allowance for a fee for the appellant's attorney, with directions that those parts of the judgment be set aside, and for the entry of a judgment in conformity with this opinion on those points.