Case one of four
209 Ky. 571
Court of Appeals of Kentucky.
CAMPBELL v. CAMPBELL.
June 12, 1925.
ACTION: Reversed in part, and affirmed in part.


Appeal from Circuit Court, Knox County.
Divorce action by Alice Campbell against D. M. Campbell. From a supplemental judgment as to custody of minor son, allowance for his maintenance, etc., defendant appeals.

DIETZMAN, J.
On September 16, 1921, appellee was given judgment for divorce against the appellant. In this judgment she was awarded $1,500 cash as permanent alimony, together with her costs and counsel fees, and was further adjudged to have the right "for the present" to the use, benefit, and occupancy of a certain house and household furniture belonging to the appellant, the said use and occupancy to be "for the benefit of" the appellee and infant child of the parties, Kenneth Campbell, whose custody was also awarded to appellee, and she was further awarded "as maintenance for the said child while in her custody" the sum of $10 per month. It appears that at the time this judgment was entered appellee was in a hospital at Knoxville, Tenn.; but, prior to leaving for Knoxville, she had made arrangements for the care of this son, who at that time was about 12 years old, and had also made arrangements for his schooling in Union College at Barbourville during the following winter. His paternal grandfather, however, later took over these school arrangements and paid the bills therefor. After appellee got out of the hospital she returned to Knox county for a short visit, and then went back to Knoxville for the purpose of taking a business course, and this required her presence in that city until the following summer. The boy entered Union College in the fall of the year, but just after the Christmas holidays he was taken from school to Florida by his grandfather. The latter says that the boy was sick at that time, but we are not impressed with this explanation, as the boy seems to have had only a passing cold. The grandfather kept the boy with him in Florida and possibly in Arkansas until the following fall, at which time he entered him in the Kentucky Military Institute. The boy's mother in the meantime having finished her business course, took a position as stenographer under Congressman Robsion, which necessitated her going to Washington, where she remained with the exception of a few visits until these proceedings in the spring of 1923, from which this appeal is prosecuted.

The appellant, the father of the boy, was a traveling man, and was seldom at home. When there, he lived with his father. He was an only child, and his boy was an only grandchild. The boy did not remain at the Kentucky Military Institute beyond the Christmas holidays of 1922, and his grandfather again took him out of school to Florida. With the exception of these two short periods in Union College and the K. M. I., the boy seems to have had no schooling since the judgment of divorce was entered. The grandfather was exceedingly indulgent to his grandchild, furnishing him, although not yet 14 years of age, with a Ford automobile, paying for its upkeep, and giving the boy not less than $5 a week spending money.

It appears that the boy at the time of these proceedings in April, 1923, had become quite proficient in the ability to curse, and even while these subsequent proceedings were pending got into some trouble with the neighbor boys while escorting a young lady home, which trouble so angered this youth that he used considerable efforts to procure for himself a gun. The record impresses us with the idea that it was high time that something was being done to control this young man to the end that he might learn the discipline of life in order that he be fitted for the duties of manhood. During these two years appellee raised no question about the grandfather having the control of the boy, and, with the exception of a few nickels and dimes which she gave her son from time to time, she spent nothing for him. She says, however, that she was protesting all along about the boy being kept out of school, and was earnestly insisting that his grandfather cease spoiling him. In April, 1923, appellant moved the lower court to modify the judgment hereinbefore referred to by vesting in him the legal custody of the boy, by discontinuing the award of $10 a month for his maintenance, and by restoring to him the possession of the house and furniture awarded appellee in that judgment. Appellee made a counter motion in which she asked that this residence and these household goods be given to her for life. During these two years since the judgment had been rendered, appellee had not lived in this house. For a portion of the time it had been vacant, and the rest of the time she has rented it out.

After a full hearing, the court entered a supplemental judgment, reawarding the custody of the boy to appellee for the summer of 1923, during which time he ordered the boy then well passed 14 years of age, to seek employment, keep himself employed, and to report to the court from time to time concerning his actions. He further adjudged that in the fall of that year the boy should be placed in a school, the name of which does not appear in this record, and that thereafter the custody of the boy should be in the principal of that school. Although the parents and grandparent were given the right to visit and see the child, they were prohibited from interfering with or obstructing the attendance of the boy at the school. The court also awarded appellee the sum of $30 a month thereafter for the maintenance of the boy, with the provision that when he started in the school in the fall this allowance should be adjusted in order to take care of his tuition and board, and he required the appellee to keep a full itemized account of her expenditures of this allowance, and to make a report concerning the same to the court from time to time. He further adjudged the appellee the right to continue in the occupancy of the house, with the power of leasing the same. The household furniture was divided between the parties, and appellee was given a judgment for the accrued installments of $10 a month allowed in the original judgment, none of which had ever been paid to her, and which amounted to $210. Appellant appeals from this supplemental judgment and makes complaint in this court that the additional allowance of $30 was not authorized or sustained by the pleadings or proof; that the court erred in giving appellee judgment for the back installments of $10 a month and in awarding to her the house in question. He does not seem to make any other objection to the judgment, and we may say in passing that we believe the court exercised the soundest discretion in making the orders it did with reference to the custody of the child.

In so far as the house and the judgment for the back installments are concerned, we concur with appellant in his statement that the proof did not authorize such judgment. The award of $10 a month in the original judgment was plainly for the support and maintenance of the child. However, appellee never supported the child during the time in question, and his support was kept up by the grandfather and father. Although not done in the manner directed by the court, yet appellant had plainly discharged his obligation under that judgment, and he could not be required to pay again for the maintenance he had already supplied. Therefore, in so far as the supplemental judgment awarded appellee the sum of $210 for back installments, it is erroneous, and is reversed.

With reference to the house, the original judgment awarded appellee the occupancy and benefit of this house "for the present" and "for the benefit of" herself and child. That judgment also awarded her $1,500 as permanent alimony, and a reading of it plainly convinces us that the court gave her the house in order that she might there make a home for herself and child. This she has never done and therefore she should not have the right to continue to hold the house. The record shows that she is amply able to take care of herself. She has been awarded a large sum of money as permanent alimony. The maintenance of the child has been taken care of, and we can see no fair reason why she should be continued in the use of the home, which in fact she does not use but rents out. In permitting appellee to retain and rent this house, the court has really given her, in addition to the permanent alimony awarded her, an additional monthly allowance by way of the rent which she realizes, and which in this case is about $10 a month. Therefore, this part of the judgment is also reversed, with instructions to return the possession of the house to appellant.

However, in so far as the allowance of $30 a month for the maintenance of the boy is concerned, the judgment must be affirmed. Appellant does not complain that he is unable to pay this sum, and from the record herein we believe it is a very reasonable sum for the maintenance of the child, considering the circumstances of the parties. It is equally proper that the father should pay for the tuition and board of this boy when at school. It is urged, however, that there is no pleading in the record on which to support this increased allowance. In the case of Shallcross v. Shallcross, 135 Ky. 418, 122 S. W. 223, the court had before it the question whether or not the lower court, in the absence of a formal motion or pleading, could on its own motion enter an order concerning the custody of an infant child in supplemental proceedings after judgment for divorce had been entered. The court, after discussing the effect of section 2123 of the Kentucky Statutes, and holding that it was only in addition to, and not in restriction of, the inherent powers of an equity court, said: "Exercise of the power possessed by a court of equity with respect to the custody of an infant in such a case is not therefore dependent upon action upon the part of either of the divorced parents, or upon a reservation in the judgment of authority to subsequently change or modify it. The court need not have waited for either parent to take the initiative, but possessed the power to modify, upon its own motion, the previous judgment as to the custody of the infant, upon the state of facts appearing in the response and established by the proof. We do not mean to say that the circuit court should at any time enter a judgment, or change one rendered at a previous term, as to the custody of a child without notice to the parents. In this case, however, both had notice. It does not lie in the mouth of appellant to complain that he was not served with a written notice of the proceedings resulting in the modification of the original judgment as to the custody of his son; for he instituted the proceeding by taking the rule against appellee, and thereby gave cause and opportunity for the filing of her response, the statements of which, together with the evidence introduced to support them, convinced the court of the necessity for modifying the first judgment to the extent that would prevent appellant from having the custody of his son at all. In this view of the matter we think appellant is estopped to complain of the want of previous formal notice of the action of the court in modifying the judgment, and likewise estopped to complain that the modification resulted without the filing of a petition therefor by appellee or himself."

The Shallcross Case is conclusive of the point raised by appellant. He started these supplemental proceedings and brought to the attention of the court the question of discontinuing the allowance for his infant son. He opened up the question. He had notice that this matter was to be decided, and he therefore cannot complain that the court, which must always look after infants who are its wards, upon its own motion made the order it did. We therefore conclude that in this particular the judgment of the lower court is correct and should be affirmed.

Judgment of the lower court is therefore reversed, in so far as it awarded appellee a judgment for the back installments of $10 a month not paid, and the possession of the house, and in all other respects it is affirmed.

Ky.App. 1925.

CAMPBELL v. CAMPBELL.

273 S.W. 26, 209 Ky. 571

Case two of four
213 Ky. 621
Court of Appeals of Kentucky.
CAMPBELL v. CAMPBELL.
March 19, 1926.
ACTION: Reversed in part, and modified and affirmed in part.


Appeal from Circuit Court, Knox County.

Divorce action by Alice Campbell against D. M. Campbell. From a supplementary judgment as to custody of minor son, allowance for his maintenance, etc., defendant appeals.

DRURY, C.
A former opinion in this case may be found in 273 S. W. 26, 209 Ky. 571. After the mandate had issued on that opinion, the appellee made a motion in this court to set aside the judgment entered here because the summons on appeal, the case having been prosecuted on an appeal granted by the clerk of this court, had never been executed upon her, the return of the sheriff on the summons in the record being a forgery, and because of the further fact she never knew until the mandate issued such an appeal was pending in this court, and she had never entered her appearance to such appeal by filing a brief or otherwise. These facts being established, the judgment was set aside; whereupon appellee filed her brief, and the case has been resubmitted.

We have carefully reviewed the record again, except the supplemental affidavit of appellee filed in this court going to the merits of the controversy, and which we obviously have no power to consider; it not having been before the lower court on the trial of this controversy. We find no reason to depart from the conclusions reached in the opinion supra, except with reference to the house. In the former opinion we held that as the original judgment awarded appellee the occupancy and benefit of the house in question "for the present" and "for the benefit of" herself and child, and that as the record showed that up to the time of the supplemental proceedings she had not occupied the house as a home for herself and child, for which purpose we said the provision of the original judgment was made, the supplemental judgment, which permitted her to continue in the use, possession, and control of this house, with power to rent and lease the same, could not be upheld. It is now suggested that the reason appellee did not occupy this house as a home for herself and child was because of the fact that the appellant and his father had been contumacious in complying with that part of the original judgment which awarded to her the custody of their boy, and that as they had by every means in their power thwarted her efforts to regain and keep the custody of the boy, they should not now be allowed to take advantage of their own wrong. We think this position is well taken. The record undoubtedly and overwhelmingly sustains the charge that appellant and his father have from the very beginning of this litigation done all they could to set aside, hold for naught, and flout the judgment of the court in so far as it awarded appellee the custody of the child. It was impossible for her to maintain the home for the benefit of herself and child as long as they interfered as they did with her custody of the child. While the original judgment gave to appellee a lump sum by way of permanent alimony, it also contemplated that she should receive the incidental benefit of the shelter of the house while she was maintaining it as a home for herself and child. The appellant ought not to be allowed to deprive appellee of this benefit on the ground that she did not maintain the house as a home for herself and child, when his own acts and that of his father in keeping the child from her defeated that purpose. He who seeks equity must do equity. Therefore, until the appellant returns or sees that the possession of the boy is returned to the appellee and can show to the court that he is in good faith abiding by that part of the judgment of the court relating to the custody of the child, he should not be allowed to raise the question of the possession of the house. The judgment of the lower court, however, did not indicate how long the appellee should continue to have the use and occupancy of the house with the right to rent it out. The judgment should be modified to the extent that she should have this right until further order of the court. If supplemental proceedings should again be instituted, then the court will have the right and power to decide what is then right in the premises. The judgment of the lower court is therefore reversed in so far as it awarded appellee judgment for the back installment of $10 a month not paid, is modified to the extent herein indicated with reference to the house, and is affirmed in all other respects.

Affirming in part, and reversing in part.

Ky.App. 1926.

CAMPBELL v. CAMPBELL.

281 S.W. 800, 213 Ky. 621

Case three of four
223 Ky. 836
Court of Appeals of Kentucky.
CAMPBELL v. CAMPBELL.
Feb. 21, 1928.
ACTION: Rehearing Denied May 1, 1928.


Appeal from Circuit Court, Knox County.
Suit for injunction by D. M. Campbell against Alice Campbell.
Judgment for defendant, and plaintiff appeals.

Affirmed.

LOGAN, J.
This is the third appearance of this case on one branch or another in this court. Campbell v. Campbell, 209 Ky. 571, 273 S.W. 26; Campbell v. Campbell, 213 Ky. 621, 281 S. W. 800. In the last appeal the judgment of the lower court had directed the appellant to pay $30 per month for the support of the child, Kenneth Campbell, until the further orders of the court, and the custody of the child was awarded to the mother, the appellee, on this appeal. That portion of the judgment of the lower court was affirmed by this court. Appellant did not pay this sum to the appellee for the support of the child, and on January 5, 1927, appellee caused an execution to issue on the judgment as is provided by section 1663, Ky. Stats., for the amount then due, to wit, $1,320, plus the cost of the action. The execution was placed in the hands of the sheriff of Knox county, but before he could do execution thereof the appellant filed his petition in the Knox circuit court seeking an injunction against appellee and the sheriff to prevent the collection of the execution. He alleged in his petition that he did not owe the sum of $1,320 or any sum, and he alleged as the reasons why he did owe any part of the judgment that it was adjudged by the court that appellee should have the custody of the child and should furnish support, clothing, housing, and board for the child, and that he was to pay at the rate of $30 per month towards defraying expenses for the support of the child thus incurred by appellee. He alleged that he placed the custody of the child with appellee, but that she refused to provide a home, board, or clothing for the child, and that she refused to otherwise comply with the terms of the judgment for the care and maintenance of the child.

It appears that the child was a boy old enough to work and do much towards his own support. The petition alleged that appellant had borne all the expenses in caring for the child since the entry of the judgment and that none of the expenses in caring for the child had been borne by appellee. It is alleged that appellant had in no way interfered with the control or custody of the child by the appellee since the entry of the judgment.

An amended petition was filed in which it was alleged that appellant had fully satisfied the judgment of the court by actually paying the expenses for the support of the child which amounted to a greater sum than $30 per month.

Appellant entered a motion in the lower court for a temporary injunction. This motion was denied, and, in the same order, the petition was dismissed.

The contention is made by appellant that his petition stated a cause of action, and that he was entitled to the relief sought. We cannot agree with appellant in this contention. The judgment directed appellant to pay $30 per month for the support of the child. This he did not do. He cannot determine the method of payment or to whom the money shall be paid. That is always a question for the court. if the things alleged in his petition and amended petition are true, his duty was clear and his remedy not difficult to find. He should have gone into the court which entered the judgment against him and there sought relief. This he did not do, and his failure to do so allowed the judgment to accumulate from month to month until the amount stated in the face if the execution was due from him to appellee for the support of the child. It is too late for him to seek a way of escape throught the injunctive processes of the court. The judgment is valid, and the execution was therefore proper.

It is earnestly urged that the court should not have dismissed appellant's petition. No reason is given for the dismissal but a party is not entitled to a hearing in court until he has purged himself of contempt. He was in contempt of court in not complying with its orders, and, until he should be purged of the contempt, he was not in position to be heard.

Judgment affirmed.

While the whole court sitting.

Ky.App. 1928.
CAMPBELL v. CAMPBELL.
4 S.W.2d 1112, 223 Ky. 836
Case four of four
240 Ky. 202
Court of Appeals of Kentucky.
CAMPBELL et al. v. CAMPBELL
June 19, 1931.
ACTION: Rehearing Denied Oct. 9, 1931.


Appeal from Circuit Court, Knox County.

Divorce action by Alice Campbell against D. M. Campbell. On plaintiff's motion for permanent possession of the home place, W. J. Campbell filing a cross- petition and counterclaim, judgment was entered in favor of plaintiff, and defendant and cross-petitioner appeal.

Reversed and remanded, with directions.

HOBSON, C.
This is the third appeal in this case to this court. On September 30, 1920, appellee filed in the circuit court her petition against her husband, D. M. Campbell, praying a divorce from him, the allowance of alimony, and the custody of their son, Kenneth Campbell, then about eleven years old. An attachment was sued out which was levied on the house and lot where they resided. On September 16, 1921, a final judgment was entered in the action granting a divorce to the plaintiff and alimony in the sum of $1,500, attorney's fees and costs. The judgment further provided: "It is further adjudged by the court that the plaintiff, Alice Campbell, shall have for the present the use, benefit and occupancy of the house and lot wherein and whereon she now resides in Grays, Kentucky, together with all the household and kitchen furniture and musical instruments belonging to the said D. M. Campbell, and which are now in said residence, and have been used by the plaintiff, Alice Campbell, and she may use said house and furniture for the present. The said house and furniture to be for the benefit of the plaintiff, Alice Campbell, and the child Kenneth Campbell, and the plaintiff Alice Campbell, is awarded the custody of the said child, Kenneth Campbell, for the present, but she is not permitted to remove said child from the State of Kentucky, and she is awarded as maintenance for the said child while in her custody $10.00 per month, payable monthly to the plaintiff Alice Campbell, but the defendant D. M. Campbell is granted the right and privilege to visit said child at any reasonable time."

The case was brought to this court, and, after reversing it on a matter not material here, the court on June 12, 1925, said this as to the house: "With reference to the house, the original judgment awarded appellee the occupancy and benefit of this house 'for the present' and 'for the benefit of' herself and child. That judgment also awarded her $1,500 as permanent alimony, and a reading of it plainly convinces us that the court gave her the house in order that she might there make a home for herself and child. This she has never done and therefore she should not have the right to continue to hold the house. The record shows that she is amply able to take care of herself. She has been awarded a large sum of money as permanent alimony. The maintenance of the child has been taken care of, and we can see no fair reason why she should be continued in the use of the home, which in fact she does not use but rents out. In permitting appellee to retain and rent this house, the court has really given her, in addition to the permanent alimony awarded her, an additional monthly allowance by way of the rent which she realizes, and which in this case is about $10 a month. Therefore, this part of the judgment is also reversed, with instructions to return the possession of the house to appellant." Campbell v. Campbell, 209 Ky. 575, 273 S. W. 26, 27.

On her motion, a new hearing was granted, as it then appeared she had not been served with process and all the facts were not before the court. On the rehearing the court, on March 19, 1926, said this as to the house: "In the former opinion we held that as the original judgment awarded appellee the occupancy and benefit of the house in question 'for the present' and 'for the benefit of' herself and child, and that as the record showed that up to the time of the supplemental proceedings she had not occupied the house as a home for herself and child, for which purpose we said the provision of the original judgment was made, the supplemental judgment, which permitted her to continue in the use, possession, and control of this house, with power to rent and lease the same, could not be upheld. It is now suggested that the reason appellee did not occupy this house as a home for herself and child was because of the fact that the appellant and his father had been contumacious in complying with that part of the original judgment which awarded to her the custody of their boy, and that as they had by every means in their power thwarted her efforts to regain and keep the custody of the boy, they should not now be allowed to take advantage of their own wrong. We think this position is well taken. *** He who seeks equity must do equity. Therefore, until the appellant returns or sees that the possession of the boy is returned to the appellee and can show to the court that he is in good faith abiding by that part of the judgment of the court relating to the custody of the child, he should not be allowed to raise the question of the possession of the house. The judgment of the lower court, however, did not indicate how long the appellee should continue to have the use and occupancy of the house with the right to rent it out. The judgment should be modified to the extent that she should have this right until further order of the court. If supplemental proceedings should again be instituted, then the court will have the right and power to decide what is then right in the premises." Campbell v. Campbell, 213 Ky. 621, 281 S. W. 800, 801.

The circuit court increased the allowance for the support of the child from $10 a month to $30 a month. D. M. Campbell refused to pay this to her on the ground that she was not supporting the child. The circuit court on her motion gave judgment against him for the sums in arrear, $1,320. This judgment was affirmed by this court on February 21, 1928, on the ground that, if she did not support the child, his remedy was to apply to the court to modify the judgment, and, failing to do this or to pay the money, he was in contempt of court and could not be heard here. Campbell v. Campbell, 223 Ky. 836, 4 S.W.(2d) 1112. He had paid the judgment for alimony, attorney's fees, and cost, and then paid the above judgment. On November 5, 1930, she entered a motion to redocket the case in the circuit court, and, this being done, on November 8, 1930, entered a motion that the court grant her permanent custody of the home place, which was the property of D. M. Campbell, and require D. M. Campbell to execute to her a deed for it or direct the master commissioner to execute the deed to her for it. D. M. Campbell moved the court to grant him a writ of possession for the property and oust the plaintiff from possession of it. The son, Kenneth Campbell, arrived at age more than a year before this. He had married and was living with his grandfather. He had, in fact, never lived in the home with his mother since the judgment was rendered.

W. J. Campbell, the father of D. M. Campbell, filed his petition and counterclaim showing these facts: He had lent D. M. Campbell the money to pay off the judgments above referred to, and had taken from D. M. Campbell a mortgage on the property in question, and also on another lot which D. M. Campbell owned, to secure him in the sum of $2,892. He prayed that his mortgage be enforced. Proof was taken by depositions, and on final hearing it was adjudged by the court that the plaintiff's motion be sustained, and that she be adjudged to be the prior and paramount owner of the property, and that her claim was superior to the claim of W. J. Campbell. The court further adjudged that the cross-petition of W. J. Campbell be dismissed, and that D. M. Campbell convey to the plaintiff, Alice Campbell, all the right, title, and interest in the two lots by a good and sufficient deed of general warranty, and, if he failed to do this, that the master commissioner convey the property to her. From this judgment, D. M. Campbell and W. J. Campbell appeal.

The court erred in adjudging the property to appellee and ordering it conveyed to her. Section 2123, Kentucky Statutes, providing for the order to be made as to the custody of children in actions for divorce, concludes with these words: "But no such order for maintenance of children or allotment in favor of the wife shall divest either party of the fee-simple title to real estate."

In Security Trust Co. v. Moberley, 199 Ky. 706, 251 S. W. 964, 965, this court, citing previous opinions so holding and quoting the statute, said: "It will be observed that the statute prohibits the chancellor from making an order for the maintenance of children, or allotment in favor of the wife, that shall divest either party of the fee-simple title to real estate. This and similar statutes have been construed as denying to the court the power to render such a judgment."

On the first appeal to this court, it was distinctly held that the circuit court awarded appellee the occupancy and benefit of the house for the present, for the benefit of herself and child in order that she might there make a home for herself and child. The reason is plain. The child was young and needed a home. His custody had been awarded to the mother; and, in order to give the child a home, she was awarded for the present the use of the house. In that opinion, it appearing that she had not taken care of the child or given it a home, it was held that she was not entitled to the further custody of the house; but, on the rehearing, it being made to appear that failure to take care of the child and give it a home was due to the father's contumacious refusal to obey the judgment, the opinion was modified, and it was held that he could not take advantage of his own wrong, and that the mother should have the right to the house until the further order of the court, the meaning being that she should have the use of the house as long as it was necessary to give a home to the child in its infancy. The second opinion did not in any other respect modify the first opinion. It simply left the circuit court to decide how long the mother should have the use of the house for the benefit of the child. The boy being now of age and married, the reason for giving the mother the use of the house has ceased; for the use of the house was simply to enable her to take care of the infant child and give him a home. She is not therefore entitled to the further use of the house, for this would be simply to increase at a subsequent term the alimony allowed her. The use of the house was not committed to her as part of her alimony, but to enable her to take care of the child on the allowance for his support.

It appears from the record that Mrs. Campbell has spent on the property, in the ten years that she has held it, $469. But a part of it was not for repairs, but for additions she saw fit to make to the property, such as evergreens $30; garage, $111; driveway to garage $9; washhouse $62.50, etc. These items leave a balance of about $250. Her own witness states that she has spent in repairs on the property about $250, and the court adopts these figures as the true amount of the cost of the repairs. As a tenant "for the present," she was without power to build a garage for her car or erect other improvements for her convenience, and charge this to the property. But it was the duty of the husband to keep this property in repair so that it could be occupied as provided by the judgment of the court. She is entitled to a lien on the property for $250 for her repairs thereon. This lien is superior to the rights of W. J. Campbell under his mortgage, as her rights under the judgment are older than his mortgage.

It is insisted for her that her reply was not controverted, but this was only a reply to the answer and cross-petition of W. J. Campbell. D. M. Campbell was not required to answer it, as it was not a reply to any pleading filed by him.

Mrs. Campbell is not entitled to any allowance for a fee to her attorney on this motion in the circuit court or on this appeal. When a divorce suit is brought, it is necessary that the wife should have an attorney, and so the rule under Ky. St. � 900, is that in such cases the husband must pay the reasonable fee of the wife's attorney, subject to certain exceptions not material here. But, when the parties have been divorced and a lump sum as alimony has been awarded the wife, the husband is no longer under necessity to furnish his wife with an attorney. After the divorce, they stand simply as other litigants.

As Mrs. Campbell has held the house under the judgment of the court, she is not liable for the rent of the house so held under the judgment; for, until the judgment was modified, she was rightfully in possession.

On the return of the case to the circuit court, a judgment will be entered adjudging the property to D. M. Campbell also adjudging Mrs. Campbell a lien thereon for $250, and her cost on the motion and adjudging W. J. Campbell a lien on the property, subject to her above lien, and a sale of the property may be ordered to satisfy the liens, if not paid.

Judgment reversed, and cause remanded for a judgment as above indicated.

Ky.App. 1931.

CAMPBELL et al. v. CAMPBELL

41 S.W.2d 1093, 240 Ky. 202



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