Case one of two
229 Ky. 21
Court of Appeals of Kentucky.
April 16, 1929.
ACTION: Reversed and remanded.

Appeal from Circuit Court, Knox County.
Suit for divorce by Opal Evans against Robley D. Evans.
Judgment for defendant on his counterclaim, and plaintiff appeals.

Opal Evans and Robley D. Evans were married September 1, 1920. He was about 21, and she 16. Two twin girls were born to them July 23, 1921. They were then living in a freight car at Harlan, Ky. He was working for the railroad, and no houses were to be had. After this they returned to Corbin, where he bought a lot, built a brick house on it, and they lived in it until March, 1927, when they separated. On July 14, 1927, she brought this suit against him for divorce, alleging cruel and inhuman treatment. He denied the allegations of the petition, and pleaded that she had been guilty of such lewd and lascivious conduct as proved her to be unchaste. Proof was taken, and, the case being finally submitted, the court on December 23, 1927, entered a judgment dismissing her petition for a divorce, granted a divorce to him on his counterclaim, reserving the question made by each of them as to the custody of the children, and adjudged him to pay $50 a month for the support of the two little girls until the further order of the court. After the judgment was entered on August 8, 1928, they made a written agreement by which the children were placed in the Grace Nettleton Home at Harrogate, Tenn., for the period of one year, he to pay the expenses and charges necessary to keep them there. The children were placed in the home under this agreement. After they separated, the husband sold the home for $5,000, $300 of which was paid to the wife, and the remainder was paid out on the husband's debts. This appeal was filed on August 30, 1928. Various motions were entered. On January 6, 1929, the wife married C. M. Strickland, and thereupon the husband entered a motion to dismiss the appeal. The motion was passed to the merits, and the case was finally submitted on March 8, 1929.

The ground upon which the motion to dismiss the appeal is rested is that, as the court reserved the question as to the custody of the children, there has been no final judgment on this branch of the case, and, as the wife has married another, she is not entitled to claim alimony from her former husband. Until there is a final judgment in the circuit court, no appeal lies to this court, and, as the circuit court has not decided upon the custody of the children, that question is not now before this court. So it remains to determine, Has she lost her right to alimony by marrying a second time? It was held that no payment of alimony accruing thereafter should be paid after a second marriage, but that the wife was entitled to alimony up to her second marriage. The motion to dismiss the appeal must therefore be overruled.

The circuit court having granted a divorce, this court is without power to modify the judgment in so far as it granted the divorce to the parties, but the court may modify it in so far as it refuses the wife alimony. There is absolutely no evidence in the record showing lewd or lascivious conduct on the part of the wife. The circuit court properly rejected all the evidence as to the Mullins letter, which was purely hearsay, as Mullins was not sworn, and there was no evidence showing that the wife had done anything wrong. There was some proof that she was seen riding in a car at night with Claud Eliott, the assistant cashier of the bank at Corbin, but she proved by both Eliott and her sister, Leona, that Leona was the lady riding with Eliott on the occasion referred to. There was also some proof that she was seen on the streets in front of the drug store, and perhaps at one or two places in the vicinity talking to Ben Barton at night, but Ben Barton was the railroad agent at Grays, where she had been raised. They had known each other for years, and he testified unequivocally that nothing improper occurred between them. His testimony is confirmed by all the circumstances and by the testimony of her sister, Mrs. Corum. The only proof in the record in any degree supporting the judgment of the circuit court is the testimony of a number of witnesses that her general character for morality was bad. This evidence was competent only to impeach her testimony as a witness.

"Complaint is also made because the testimony relative to the general reputation of the wife for unchasity was excluded. In civil actions evidence of general reputation is not admissible unless the proceeding be such as to put the character of the party directly in issue. The charge was adultery by her. She should not be convicted of such an act upon presumption. It was not a proceeding which put her general character in issue, and the admission of such evidence for the purpose of raising a presumption of her guilt would lead to more of uncertainty and disadvantage than benefit in the administration of justice."

A woman's reputation in a community may be affected by what an estranged husband may say about her or by other things beyond her control, but this does not prove that she is unchaste. The rule is well settled that circumstances merely suspicious are not sufficient to establish the wife's guilt of lewd and lascivious conduct. While this court gives some weight to the judgment of the chancellor in cases like this, it will not sustain his judgment when not warranted by the evidence, and it will exercise its own judgment in determining whether the evidence warrants the judgment. Under the evidence, the court should have entered a judgment in favor of the wife for a reasonable sum for alimony on the granting of the divorce, and on the return of the case to the circuit court an allowance of $20 a month will be made to her from the date of the judgment until her second marriage.

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

Ky.App. 1929.
16 S.W.2d 485, 229 Ky. 21

Case two of two
232 Ky. 155
Court of Appeals of Kentucky.
Dec. 17, 1929.
ACTION: Reversed and remanded.

Appeal from Circuit Court, Knox County. Proceeding by Robley D. Evans against Opal Evans to determine the custody of children. From an order denying defendant custody of the children, she appeals.

Opal Evans and Robley D. Evans were married April, 1920. There were born to them two girls, twins, who are nearly 7 years old. The husband sued the wife for divorce two or three years ago, and obtained a decree granting him a divorce and denying the wife alimony. The custody of the children was not determined by that judgment. She appealed to this court. The opinion is reported in 229 Ky. 21, 16 S.W.(2d) 485. It was held that the husband was not entitled to a divorce on the record made, and the cause was reversed to the extent that it denied alimony to the wife. When it was returned and the mandate entered, the appellee, Robley D. Evans, filed an amended petition seeking the custody of the children. By agreement between the parties, they had been placed in an orphanage for one year. Appellant, Opal Evans (now Mrs. C. M. Strickland) filed an answer and counterclaim asking for the custody of the children.

Both parties, without objection, filed affidavits in support of the allegations in the pleadings. The chancellor entered an order denying appellant the custody of the children and placing them in an orphanage, or rather directing that the orphanage retain custody of them until further orders. Appellee appears to have abandoned his prayer for the custody of the children as the order makes it appear that he was asking that the children be placed in the orphanage.

Appellant has brought the record here questioning the propriety of the order of the court, and the appellee questions her right of appeal and denies that the order made by the chancellor was improper. It is urged by appellee that the order placing the custody of the children with the orphanage was not a final order and therefore no appeal could be taken from it, because, it is said, the court placed the children in the orphanage until further orders of the court. If the contention of appellee on this point should be upheld, there could be no appeal from a judgment determining the custody of children, as the chancellor always retains control of his orders in cases such as this.

It is urged, seemingly by both parties, that the court was without authority to determine the question presented on the affidavits filed by the parties. It is said that affidavits cannot be read on a hearing of this nature. A proceeding to determine the custody of children is not by motion, but by a petition, and for that reason producing the evidence by affidavits is not allowable if there are objections. Affidavits cannot be read without agreement on the final trial of equity actions in any case.

But in this case there was no objection to the reading of the affidavits as evidence. All parties treated them as depositions. It is too late to raise the question after a case has been determined on affidavits.

The remaining question is whether the chancellor should have placed these children in an orphanage rather than to place them with the mother who was asking for their custody. An orphanage is a poor substitute for a real home in a family, and, when the mother of little girls has a permanent home, she should not be denied the custody of them unless there are substantial grounds alleged and proven showing that she is not a fit person to have their care. If she did not want them, she would not be here asking for them. There is no substitute for a mother's love. It is made to appear by the affidavits that she neglected these children during the period that they were with her after the divorce was granted, and before they were placed in the orphanage by agreement. At that time she had an income of $42.50 a month. She was living in an apartment house. She was attending a business college in an effort to prepare herself to earn enough to support her and her children. The statements that she neglected the children are denied by her. She is supported by the affidavits of others. Charges are made in the affidavits against her that her present husband visited her before their marriage at times when he was intoxicated. She admits that he was addicted to the use of intoxicants in excess for a while. He is working for the Louisville & Nashville Railroad Company, and he puts in full time and earns about $7 a day. They live in a home in the country about two miles out of Corbin. No one charges in any affidavit that he is addicted to the excessive use of intoxicants at this time. The chancellor has control of the custody of the children. He should award the custody of these children to the mother subject to further orders of the court. If the mother does not give them that care and attention to which they are entitled, the chancellor will not be without power to reclaim from her the custody of the children. Their father should be allowed to see them at such reasonable times, and under such reasonable regulations, as the chancellor may prescribe. We believe this is for the best interest of the children, and that is the main consideration in cases such as this.

Judgment reversed, and cause remanded for proceedings consistent with this opinion.

Ky.App. 1929.
22 S.W.2d 578, 232 Ky. 155


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