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stock of that corporation, in which none of willing witness, testifying voluntarily, an exthe other appellees had any interest, and that convict, and a detective employed to procure

evidence. judgment would not be set aside as far as

5. DIVORCE O 53-RECRIMINATION. they are concerned, when they are willing, as

A husband whose wife was guilty of adultit appears, to abide by its terms. The vaca- ery should not have been granted divorce from tion of that judgment, to protect the interest her when he himself was guilty of conduct furof the appellant therein disposed of, would nishing grounds of divorce to the wife.

ACTS not affect the interest of either of the other 6. DIVORCE Cw54 – RECRIMINATION

NOT OF SAME CHARACTER. appellees, and they do not object to that judg

To justify denial of divorce, it is not necesment, but abide by it. Neither would a re- sary that the recriminatory acts pleaded by deversal of the first judgment of May 28, 1910, fendant spouse be of the same character and affect the appellant's rights in any way, as furnish the same grounds for divorce as those

they are intended to offset. she was the owner of only 80 shares of stock, and not of any of the real estate adjudged to 7. DIVORCE Cw116—CRUELTY OF HUSBAND

CHARGE SUBSEQUENT TO WIFE'S MISCONbe sold. Hence there appears no reason to DUCT. reverse the judgment of October 11, 1915, so Where a husband's letters, charging his far as the interests of the other appellees are wife and daughters with running a whorehouse, concerned, since the appellant seeks to have were written after the wife's alleged adultery

with another, if unfounded and malicious they the agreed judgment vacated, not on account furnished evidence of his cruelty as much so as of any right which she claims as administra- if made before that time, and were competent trix of Lewis Francis, but in her own per- on a charge of cruelty. sonal right, nothing is involved in that judg-8. DIVORCE On 27(18)—CRUEL AND INHUMAN

CONDUCT. ment applying to her, except her ownership of the 80 shares of the capital stock of the like a slave, and supplied her and their chil

Where a husband forced his wife to work mining company. No intimation of opinion is dren with meager clothing, earned principally made with reference to the nature of the pro- by the wife through the sale of butter, eggs, ceedings of the appellant or the sufficiency of etc., on a number of occasions inflicted physical its grounds to vacate the agreed judgment. children, and falsely charged the wife and

injuries on the wife's body, and also upon the The appeal is therefore dismissed as to the daughters with running a whorehouse, he was Central Coal & Iron Company, and the judg- guilty of cruel and inhuman conduct toward his

wife. ment of October 11, 1915, dismissing the proceeding, is affirmed as to the other appellees. 9. DIVORCE 55—GUILT OF WIFE-ALIMONY


In a husband's suit for divorce for his wife's (181 Ky. 55)

adultery, if the court thought the charges pre

ferred against the wife were true, he should SMITH v. SMITH.

have at most granted a divorce a mensa et (Court of Appeals of Kentucky. June 11, 1918.) thoro, the husband having seduced his wife be

fore marriage, in which case it would have been 1. DIVORCE Om 286 APPEAL PROPERTY the court's duty to make proper alimony allowRIGHTS.

ance to the wife. There is no appeal from judgment granting 10. DIVORCE Ow240(2) — ALIMONY – SUPPORT a husband divorce on the ground of adultery,

OF CHILDREN. and it cannot be interfered with, but the Court of Appeals, where divorce has been granted and

Where a wife was divorced under such ciralimony disallowed may look into the record support and that of her children was proper, and the facts, and, if it is found that judgment the husband's land alone being worth at least annulling the bonds of matrimony should not $300,000 or $400,000, while he was in receipt have been rendered, may direct such a judgment of other income,' the wife was entitled to a concerning alimony and the property rights of monthly, allowance of $200 for herself, and the parties as the law and facts authorize. 2. DIVORCE 129(6)–TESTIMONY OF CO-RE- until they became of age.

$75 a month for each of her infant children SPONDENT-STATUTE.

In a husband's suit for divorce for his wife's 11. DIVORCE Om227(1) - ATTORNEY'S FEE adultery, unless the requirement of Ky. St. $

AMOUNT. 2119, that the credibility or good character of

In a husband's suit for divorce, where cona witness to the charge of adultery or lewdness siderable proof at different points and on difmust be personally known to the judge, or to ferent dates was taken by the wife's attorneys, the officer taking the deposition, is met in some they were entitled to a fee of $1,000 instead of way, the uncorroborated testimony of the co- $750. respondent should not furnish grounds for dis- Sampson, J., dissenting. solving the marriage. 3. DIVORCE Om129(6) TESTIMONY OF Co- Appeal from Circuit Court, Harlan County. RESPONDENT.

Suit for divorce by W. H. H. Smith against In such suit, the co-respondent having tes- Sarah Smith. tified voluntarily after he had been promised

Judgment for plaintiff, and his expenses and payment for his lost time, it defendant appeals. Reversed, with direcis doubtful whether his testimony should have tions to enter judgment consistent with the been given any weight at all.


Metcalf & Jeffries, of Pineville, Henry In such suit the trial court should not have Jackson and John W. Rawlings, both of granted the husband divorce upon the testimony Danville, and Clay & Carter, of Harlan, for of a witness who did not have his credibility certified to or shown, as required by Ky. st. appellant. Edward C. O’Rear, of Frankfort, § 2119, who was himself a co-respondent, a ) and J. S. Forester, of Harlan, for appellee.

THOMAS, J. The appellee and plaintiff , ney's fee of $750, which had been allowed to below, W. H. H. Smith, brought this suit in her attorneys in the original judgment, be the Harlan circuit court against his wife, increased to the sum of $10,000. That mothe defendant and appellant here, Sarah tion was overruled, and defendant prosecutes Smith, seeking a divorce from the bonds of an appeal from that order, as well as from matrimony upon the ground that she had the original judgment, insisting that the been guilty of adultery with J. E. Kirby, court erred, under the facts disclosed by the Edgar Thomas, J. H. Smith, "and others record, in disallowing her alimony in the whose names are now unknown to the plain- sum allowed for the children, and in fixing tiff.” He charged that because of the de- the fee of her attorneys at only $750. fendant's unchastity she was an unfit person [1] It is scarcely necessary to state that, to have the custody of their children, whose however erroneous the judgment granting names and ages are Matilda Smith, aged 19 the divorce may be in our estimation, there years; Laura Smith, 17 years; Noble Smith, is no appeal from it, and it cannot be in15 years; Creed Smith, 12 years; Delano terfered with, but it is equally true that Smith, 10 years; and Edna Smith, 6 years. this court upon appeal, even where a diThe answer denied the allegations of the vorce has been granted and alimony disalpetition, except as to the charge of adul- lowed, may look into the record and the facts, tery with J. E. Kirby; and in another para- and, if it is found that the judgment angraph defendant pleaded that her conduct nulling the bonds of matrimony should not with Kirby occurred in the early part of have been rendered, to order and direct such the year 1912, and that plaintiff had full a judgment concerning alimony and the propknowledge of it and forgave the defendant erty rights of the parties as the law and and condoned the act, and afterwards lived facts authorize. Burns y. Burns, 173 Ky. and cohabited with her as his wife. In a 105, 190 S. W. 683; McClintock v. McClinthird paragraph, in which she made a coun- tock, 147 Ky. 409, 144 S. W. 68, 39 L. R. A. terclaim against plaintiff, she relied upon the (N. S.) 1127; Tilton v. Tilton, 29 S. W. 290, two statutory grounds of divorce of (1) cruel 16 Ky. Law Rep. 537; Zumbiel v. Zumbiel, and inhuman treatment toward her by the 113 Ky. 84, 69 S. W. 708, 24 Ky. Law Rep. defendant for not less than 6 months, in 590; Freeman v. Freeman, 13 S. W. 246, 11 such a manner as to indicate a settled aver- Ky. Law Rep. 824; and numerous other cassion to her and to destroy permanently her es which might be cited. peace and happiness, and which treatment It therefore becomes necessary to look to consisted in beating, striking, and bruising the record to ascertain the facts and to dethe defendant, and falsely accusing her of termine the rights of the parties. It, in a committing the crime of adultery, and of large measure, portrays the dramatic as well maintaining a house of ill fame, and (2) as the pathetic. In 1888 the plaintiff was abandonment without support for more than living with his mother in Harlan county on 12 months. She afterwards, by amended an- about 500 acres of mountain land, a small swer and counterclaim, alleged that plaintiff portion of which was tillable, and it was was guilty of living in adultery with one bountifully supplied with timber upon the Eula Sergent, alias Eula Howard, and upon surface and minerals under the surface. His the three grounds relied upon in her counter-mother was old and feeble. There lived claim as amended she asked that she be nearby a woman who was the mother of granted an absolute divorce from her bonds some three or four illegitimate children, one of matrimony. Appropriate pleadings denied of whom was the defendant in this case, and her allegations, and upon trial, after consid- she was 12 years of age. Through some erable preparation, the court sustained the arrangement the defendant went to live with prayer of the petition, and granted to plain the plaintiff and his mother to assist the lattiff an absolute divorce, annulling the mar- ter in doing the household work and perhaps riage between him and the defendant, and looking after her ailments. She was rather dismissed defendant's counterclaim for the precocious physically and otherwise, and same relief; but with the wife's character within a short time thereafter the plaintiff, thus blackened he adjudged the custody of who was then 35 years of age, began to show the children to the defendant, and allowed her such kindnesses and attentions as into her and them the use of a residence in | variably captivate a female child of that Danville, Ky., where they had been living age. He would give her presents, consistwhile the children attended school since Au-ing of candy and other cheap articles, calgust, 1912, and that plaintiff be required to culated to arouse her appreciation, and finalpay for the joint use of the wife and chil- ly his conduct toward her assumed a fonddren $150 per month, and that plaintiff ling aspect, and resulted in him eventually should pay the expenses of the children in seducing her. She became the mother of a attending school. Afterwards defendant, child when she was only about 14 years of upon notice, entered a motion to modify the age. After that their illicit relations became judgment, and to allow to her a permanent more pronounced, until finally they were liysum in alimony, which she insisted upon as ing in open adultery, and at regular periods being fixed at $100,000, and that the attor- a new child would be born, until 1899 or 1900, when plaintiff's mother died, defendant was, This was done in August, 1912. From that the mother of five illegitimate children whose time to the filing of this suit, which was on father was the plaintiff. They were then the 12th day of February, 1916, the wife and married, and several children were born the children occupied the Danville residence, after the marriage. She continued to live while plaintiff spent the greater portion of upon the farm, doing not only the house his time at the old homestead in Harlan hold work, but milking and washing, and county, but he would upon occasions visit frequently working in the fields, and per- his family in Danville. The children reguhaps doing other work more assignable to larly attended school, and made at least an

The masculine hands. The extent of that work average advance in their studies. Both they was largely increased because plaintiff was, and their mother seem to have built fair and at the time defendant went to his home, en honorable reputations in that community, as gaged in getting out timber and working is attested by the testimony of the leading many hands, some of whom he boarded and citizens of that town. One of the daughters fed. That character of work increased as is an organist of one of the leading churches plaintiff continued to buy more land sur- there, while the other is a member of the rounding his original place, until he acquir-choir. In the early part of 1912, and before ed some four or five thousand acres, and at the defendant and the children moved to the time of the rendition of the judgment it Danville, the defendant was in Middlesboro, was worth between $400,000 and $600,000. Ky., either on a trip going or returning to In addition he is shown to possess stock, the place where her daughters or one of cattle, and other property, the exact amount them was attending school, and while there of which is not shown. The only assistance she met J. E. Kirby, whom she had known in cooking and doing the other kind of work for quite a while, and in a weak moment herein stated which the defendant had was she surrendered to his importunities, and that furnished by her daughters as they while they were in a room together at a hogrew large enough to help her. When she tel the plaintiff appeared and found them would be confined in childbirth it was never jointly occupying the same room; and this exceeding seven days, and then she would be is the act of adultery which defendant adput in a cabin in the yard, and not allowed mits, and which she alleged and the proof to stay in the regular residence. But twice establishes was condoned by the husband. did she have a doctor to attend her, and at Kirby further testified that he had just prior one time her child was born without any one to that time had intercourse with defendant being present. In 1910 plaintiff gave some in Pineville, but this is refuted by counter kind of option on his land, the exact nature testimony, and in addition the proof convincof which is not disclosed by the record, but es us that the condonement was for all the he received therefor the sum of $10,000 in offenses which the defendant committed with cash. The option was not exercised accord- Kirby. Edgar Thomas testified that in the ing to its terms, which resulted in the for-latter part of 1911 he met the defendant in feiture of the $10,000 to plaintiff. Directly Knoxville and he had intercourse with her afterwards plaintiff and defendant made a at a hotel in that place, and that shortly trip, which was perhaps about the first time thereafter, and perhaps the early part of the that either of them, especially defendant, year 1912, he engaged in similar conduct was ever out of Harlan county. This trip with her at Middlesboro. was to points in Virginia and Washington, [2] These acts of adultery, as testified to D. C., and after the return it appears that, by the witness Thomas, are denied by the dethrough the importunities of defendant, the fendant, and there is nothing in the record, plaintiff was persuaded to give his children either by direct testimony of witnesses, by a better education than the facilities in the certificate of the officer taking the deposition, local public schools offered, and two of them or the finding of the court, showing that the were sent to a cheap school in Tennessee. witness Thomas was a credible one, or that The necessity for educating the other chil- he bore a good character, as is required by dren as they grew old enough to receive it, section 2119, Kentucky Statutes; and, unless and the desire of the two oldest, who had this is done in some one or more of the methbeen sent away to school, to pursue higher ods enumerated, the uncorroborated testibranches, and the desire to rear her children mony of such a witness should not furnish in a better social atmosphere, with a full grounds for dissolving the bonds of matrirealization that they were able to do so, led mony and destroying the law's cherished Mrs. Smith to request her husband that status of the parties, and indirectly heaping they locate in some place where they could disgrace and humiliation upon the defendant be furnished with appropriate educational and her innocent children. Besides, this witfacilities. They made some trips in search ness was a most willing one. He acknowlof a suitable location, with that end in edges that he gave his deposition without view, and finally the husband purchased a being forced to do so, and after he had been house and lot in Danville, Ky., where the promised his expenses and payment for his wife and children took up their temporary lost time.



W. 136, 19 Ky. Law Rep. 1936, it is said, in, intercourse in which he engaged with de speaking of this character of witness, “that fendant, but that he bore the burden of it in but little credit should ordinarily be given carrying out a loyal duty to his uncle. He to the testimony of a corespondent who vol- testified that the act of intercourse occurred untarily testifies against a respondent”; and between 9 and 10 o'clock at night, and in the in Evans v. Evans, 93 Ky. 510, 20 S. W. 605, room where he was sleeping, which was down 14 Ky. Law Rep. 628, it is said, "So far as stairs. Defendant and her son Noble testithis record shows he (the co-respondent) was fied that nothing of the kind occurred, and an entirely willing witness. He does not ap- that the defendant, until after 12 o'clock that pear to have been attached or made to testi. night, was sitting up with her youngest son fy. It is not even shown that he was sub-Dan, who was at that time sick and required punaed as a witness. He was entirely will nursing; that she retired about 12 o'clock in ing to not only destroy the wife, affix a stain a upstairs, where she remained to her children and family, but also to testi- throughout the night. The credibility of fy to conduct degrading to and highly blam- the nephew, Smith, is not established by any able in himself. Such' evidence is justly sub- of the methods pointed out by the section of ject to suspicion. It comes in doubtful form.” the statute, supra; and in addition to his beText-writers and other courts lay down the ing a willing witness, testifying without besame cautionary rule in the admission of the ing served with any character of process, he testimony of the character of witness under is furthermore discredited by being a deconsideration, and, under the circumstances, tective, specially employed to create, procure, we seriously doubt if this witness' testimony and establish the grounds for divorce; and should have been given any weight at all. he appears to not only be able and willing

The only other testimony in support of the to play that part, but likewise and with charge against the defendant comes from the equal determination to play the part of plaintiff's nephew J. H. Smith. He lives in paramour and manufacturer of testimony; Tennessee, and is about the age of the de and he also served a time in the penitentiary fendant, and has known her all of his life. for voluntary manslaughter. In 9 R. C. L. Some time in the latter part of 1915 he met 331, in discussing the effect of testimony plaintiff in Middlesboro, which it seems was from a witness like this, the text is: by appointment, and plaintiff there said to

"It has been said that the testimony of a prihim “that his (plaintiff's) wife was running other, with the view of learning facts on which

vate detective hired by one spouse to watch the around from one place to another to Knox- to base a suit for divorce, will be regarded with ville and Cincinnati, and whoring it around, much suspicion, especially where it does not and he wanted him (J. H. Smith) to help appear that his pay is independent of the succatch her.” This charge was in the face of stated as a very generally recognized rule that

cessful effect of his evidence; and it may be the facts that no trip by the wife to any of testimony of detectives introduced to prove the places mentioned or elsewhere was prov- adultery must be scrutinized closely and reen, or offered to be proven, after she went with that such testimony is of very little weight in

ceived with great caution. Usually it is held her children to Danville, in 1912. Letters proving the offense. Some cases even go to passed between them, resulting in the nephew the extent of holding that a decree should not assuming the role of detective, and, in con- be granted on the unsupported testimony of sideration of an agreement to be paid $250 in pecially proper where the detectives are employ

such persons; and this would seem to be escash and his expenses, he started out on his ed with the view of procuring evidence by promission. He visited his aunt, the defendant, moting the act of adultery." at her home, where he was cordially re

[4] The excerpt just taken is supported ceived by all of the family, and he and de- by these cases found in the notes: Taft v. fendant went to some of the stores in Dan Taft, 80 Vt. 256, 67 Atl. 703, 130 Am. St. Rep. ville in the daytime and perhaps took a trip 994. 12 Ann. Cas. 959, and Dennis v. Dennis, around the town in a buggy. Nothing im-68 Conn. 186, 36 Atl. 34, 34 L. R. A. 449, 57 proper occurred, and witness stayed over Am. St. Rep. 95. So that we find that this night at defendant's home, leaving the next witness, who is the only one testifying to morning, and within a short time thereafter any adulterous acts of defendant occurring he again came to Danville and spent another subsequent to the condonement, labors under night, when, as he claims, he had intercourse the difficulties of (a) not having his creditawith defendant. This was, according to his bility certified to or shown in the manner testimony, in the early part of 1916 and just required by the statute; (b) is himself a before the filing of the petition. He states corespondent;

(c) is

willing witness, that in furtherance of his detective work he giving his testimony without being brought derided the plaintiff to the defendant, and into court with legal process and being paid stated to her that she was ill-mated, and for his services; (d) he is an ex-convict; and, that she should separate from the plaintiff, lastly, he is a detective, "employed with the and that he would separate from his wife, view of procuring evidence by promoting each of them obtain a divorce, and then the act of adultery." There could scarcely marry. He furthermore acknowledges that be more discrediting facts arrayed against he had ill will toward the defendant, and the credibility of his testimony, and, when that he did not particularly desire the act of there is added to this the testimony of the de


fendant and her son that no such occurrence, been judicial doubts and conflicts concerning it, happened, we are bound to conclude that if and some differences created by legislation, the trial court accepted the testimony of this But in a general way the doctrine is everywhere

recognized. witness, and upon it convicted the defend

And again, in 349 it is said: ant, it was clearly erroneous and unauthor

"If we view marriage as a contract, then, ized.

if a plaintiff comes into court alleging that [5] But if it should be admitted that the defendant has done what entitles him to plaintiff's testimony in its entirety was suffi- have the contract partly or fully set aside by cient to authorize a finding that the defend- a divorce from bed and board or the bond of

matrimony, whereupon the defendant shows ant was guilty of the adultery charged, and that the plaintiff is equally subject to a like that her conduct had been so lewd and las- decree, whether because of the same form of the civious as to prove her upchaste, it would not breach of contract or any other, the thing comfollow that the plaintiff should have been on the other being that the other party has

plained of on the one side and set up in defense granted the divorce which the court gave broken the mutual marriage contract, the plainhim, if he himself was guilty of conduct tiff stands before the court as himself in fault furnishing grounds for divorce to his wife; about the same thing for which he asks re

dress, he does not come into court with clean for it is a principle lying at the foundation hands, consequently he is not entitled to relief. of equitable procedure that no one shall And if we substitute the word 'status' for 'conreceive relief unless he approach the forum tract,' in this proposition, it will be equally

sound in our jurisprudence and in common with clean hands, and this rule is not con- sense. Such is believed to be the true law of fined to strictly private transactions alone, the subject, not derived simply from the decibut extends to relationships forming a social sions in divorce causes, but adhering in our enstatus as between themselves and one in tire legal system.” which the public is concerned. When ap

[6] Nor is it necessary that the recriminaplied in the procedure looking to a disso- tory acts be of the same character and furlution of the marriage contract, it is called nish the same grounds for divorce as those in the law "recrimination.” It had its foun- which they are intended to offset, as is dation in the Mosaic Law (Deuteronomy, shown by the work just referred to, wherein, chapter 22, verses 13–19, inclusive); and in in section 351, it is said that cruelty is a later times, and under a different dispensa- valid defensive plea to a charge of adultery, tion, another, about whom it is written that and the same is true as to adultery being “never man spake like this man,” said, "He a bar to a charge of cruelty. Sections 352–355. that is without sin among you, let him first In other words, it is clearly shown by the cast a stone at her;” impliedly saying that author of that work to be the law unihe who is not without sin shall not cast a versally recognized, especially by American stone at her.

courts, that ground authorizing the In Bishop on Marriage, Divorce and Sepa- granting of a divorce may be used by the ration, the doctrine of recrimination in di- defendant, by way of a recriminatory charge, vorce suits is extensively treated in volume to defeat a suit for divorce based upon any 2, c. 11, $8 337–409, inclusive. In section 338 other legal ground, and when both parties it is said:

are shown to be guilty neither should be "Universally, in England and this country, granted an absolute divorce. In volume 9, recrimination is accepted as a valid answer to

R. C. L, 387, in further substantiation of the a suit for divorce.'

doctrine under consideration, the text says: And in section 340 it is said:

"It is a general principle of the common law

that whoever seeks redress for the violation of “Recrimination in divorce law is the defense a contract resting upon mutual and dependent that the applicant has himself done what is covenants, to obtain success must himself have ground for divorce either from bed and board performed the obligations on his part. Someor from the bond of matrimony. It bars the thing analogous to this principle is found in suit founded on whatever cause, whether the the doctrine of recrimination, or compensatio defendant is guilty or not.”

criminum, which was originally borrowed from And in section 344 it is said:

the canon law, by which the defendant in di

vorce proceedings is permitted to contest the A view adequate for our present elucida- plaintiff's application on the ground of his own tions is that extending through our entire law, | violation of the marriage contract-to set off, yet variously modified according to the particu- to use the language of the cases, the equal guilt lar issue, there is a rule which forbids redress of the plaintiff. The doctrine of recrimination to one for an injury done him by another, if by the defendant as a defense in bar of the himself in the wrong about the same thing plaintiff's relief has become fully established in whereof he complains. And it will not avail this country, and though misconduct of the the plaintiff that he is less in fault than the plaintiff, such as adultery, occurs after the comdefendant; he must come into court, as the mencement of his or her suit, it is as fully expression is, with clean hands."

effective to bar the right to a divorce therein In section 346, applying the "clean hands" as if it had occurred previous to the comdoctrine, especially to divorce suits, the mencement of the suit.” learned author says:

In support of the statement that the doc"The doctrine which is thus seen to extend trine "has become fully established in this through the entire field of our jurisprudence country," the following cases are referred to: prevails, therefore, in the divorce law. If in Conant v. Conant, 10 Cal. 249, 70 Am. Dec. the former it is a little variable, and in some respects its exact form and proportions are 717; Gordon v. Gordon, 141 Ill. 160, 30 N. uncertain, so in the latter there are or have | E. 446, 21 L. R. A. 387, 33 Am. St. Rep. 294;

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