Sebastian v. Rose

Opinion op the Court by Judge O’Rear Reversing. Appellant and appellee were married June 13, 1901. Appéllee was then a young man about 25 years old. His wife was a year or two younger Appellee’s father was a man of wealth, and had considerable business interests. Appellee was a partner in some of his enterprises, was industrious, a good — 200 — business man of sound judgment, and successful; but he had contracted the habit of inebriacy. Upon his marriage he took his bride to his father’s dwelling to reside. A month later he abandoned her, leaving her without means of support. She was compelled to return to her father’s home, where she resided till his death in 1907. March, 1902, after the separation, she gave birth to a son, who is still living so far as the record shows. In 1902 she brought this suit against her' husband for divorce and alimony, asking also that she be given the permanent custody of the child, and that she be restored to her maiden name. Her father was a lawyer, a man of high social and professional standing, but possessed of moderate means. He had other children also. In appellant’s suit for divorce she joined as defendants the parents and brothers of appellee, charging that her husband had conveyed and transferred his property to them in fraud of her rights, and to defeat her action for alimony. Appellee did not file an answer in the case. Appellant introduced evidence in support of her claim. It showed her right to a divorce under the statute on the ground of abandonment. As to the alleged transfer of property the evidence was very meager. A judgment was entered in the case on May 14, 1903^ granting to appellant an absolute divorce from appellee, restoring her to her maiden name, and adjudging her the custody and control of the child. She was also adjudged $1,500 as alimony, and $50 as counsel fee in the case. The judgment concludes: “Thereupon came Gr. B. Rose and paid $500 on the judgment to the plaintiff and $50 to John C. Eversole and this case, is filed away. ’ ’ ' GvB. Rose was the father of appellee. John C. Eversole was an attorney in tlie case for appellant. — 201 — Appellant’s action against Gr. B. Eose and Ms wife- and sons concerning appellee’s property was dismissed. On December 11, 1907, appellant filed a motion (of which due notice was given to appellee) for a rule against appellee to show cause why he should not be punished for contempt of court for his failure to pay the balance of the judgment above named. Appellee responded that he ought not to pay any part of the balance, because the judgment was entered by the fraud or mistake of appellant’s counsel (her father having been one of her attorneys in the suit for divorce and alimony); that the judgment was in fact a compromise of the suit; that appellee had a valid defense to the action, involving matter that would'have been humiliatmg or disgraceful to her if disclosed, and that, upon her father’s being advised of the fact, he assented to the compromise, and induced appellant to likewise agree to it; that the agreement was that appellee was to pay appellant $500 only as alimony, and the $50 counsel fee, but that as a salve to her feelings the judgment was to recite that she was adjudged $1,500 as alimony, all of which was to be indorsed satisfied upon the payment of $500 and the $50 attorney fee; that counsel relied upon appellant’s father, James M. Sebastian, one of her counsel, to have the proper orders entered, but that he failed to do so through, fraud or oversight. Appellant replied, denying the authority of her father to make the compromise of $500, and denied that he did so. She denied that appellee had any defense to her action of divorce, and denied that it involved her moral conduct. Upon this issue the motion was tried. The evidence is that James M. Sebastian acted as attorney for appellant in the divorce case; that while Mr. John C. Eversole was also — 202 — counsel Mr. Sebastion was the senior and managing attorney; that he did agree to take $500 in full settlement of his daughter’s alimony, and upon his reporting that she had consented to it the $500 was paid, and the judgment entered. The evidence also shows that appellant did not authorize the settlement and knew nothing of it until it was disclosed in the response filed upon this motion. There was no evidence introduced nor offered impugning appellant’s conduct or character. Thereupon the circuit court adjudged that the motion be denied, and that the collection of the balance of the judgment be perpetually enjoined. It is from that judgment that this appeal is prosecuted. Divorce proceedings in this state come within the exclusive cognizance of courts of chancery jurisdiction. Judgments in chancery may be enforced by any appropriate writ allowed for the enforcement of judgments at law. Section 1663, Ky. St. But it is provided by subsection .2, section 1663, that “nothing in this article shall prevent either party from proceeding to carry an order or judgment of court into execution according to ancient practice of courts of chancery.” The circuit courts of this state have all power anciently vested in the English Courts of Chancery. Rebhan v. Fuhrman, 21 Ky. Law Rep., 17, 50 S. W. 976. Those courts had, and circuit courts of Kentucky now have, the power, as an incident of their chancery jurisdiction, to enforce obedience to their orders and decrees by summary mode, attachment, and imprisonment. Said this court in Ballard v. Caperton, 2 Metc., 412: “This power belongs of necessity to the court, that its judgments and orders may be carried into execution and — 203 — not remain powerless, and that its dignity and right to respect may be preserved by prompt punishment-of contumacy.” The practice of proceeding by rule in such cases -is seemingly sustained by Evans v. Stewart, 38 S. W., 697, 18 Ky. Law Rep., 941, and Tyler v. Tyler, 99 Ky. 31, 34 S. W. 898, 17 Ky. Law Rep. 1341. Furthermore, the statute contemplates further control by courts of chancery over their de-crees in cases where alimony has been adjudged (section 2123, Ky. St.) for, as observed in Logan v. Logan, 2 B. Mon., 150: “If hereafter the circuit judge shall be satisfied that this allowance is either inadequate or superfluous, he will, of course, modify it by enlargement, curtailment, or suspension altogether, according to circumstances, retaining, as he must, the control of the case for that purpose, and for the-benevolent purpose also of keeping open the door of ultimate reconciliation.” The original decree in this case “filing’.the case away” was, in effect, keeping control of. the case, to be redocketed upon notice, as the parties were not dismissed. The decree of divorce is final. It may not be reviewed on appeal, or a new trial granted by the trial court. Divorces a mensa et thoro may be retried in the circuit court (section 427, Civ. Code Prac.; McCracken v. McCracken, 109 Ky. 766, 60 S. W. 720, 22 Ky. Law Rep., 1448), but in no other. Hence, we are precluded) as was the circuit court, from re-examining the grounds of the judgment for divorce in this case, in so far as: that judgment granted the divorce, even if there was an issue upon that point. But there is not. The abandonment of appellant by her husband appears to have been a cruel act, wholly unexplained, and with-: out mitigation. The solemn and sacred vows of the — 204 — altar, the highest form of contract, the most important social relation, were forgotten by .the bridegroom ere the honeymoon had waned; and it seems even the pride of paternity was not enough to. move to compassion a nature insensible to the demands of conjugal obligation. G-rounds for divorce may not be confessed. They must be proved. Section 422, Civil Code Prac. They cannot legally be the subject of agreement.- Not the consent of dissatisfied parties, but the judgment of the courts alone, may dissolve the marital relation. True, a defendant to an action for divorce may decline to defend, even though he has a defense. The act mqy be the result of agreement. Nevertheless, when the decree is entered, it is the court’s judgment upon the record as made, and establishes a new status, not subject to retrial in court. The decree of divorce in this case must therefore abide, unless the parties by their joint personal petition to the court granting the divorce procure its annulment as allowed by section 426, Civil Code Prac. But judgments allowing or refusing alimony are subject to review on appeal; or to new trial upon proper grounds therefor being shown. This proceeding to enforce the payment of the judgment for alimony was, as we haye seen, one authorized by the practice in chancery. Relief will be granted according to the rules.of equity. We are satisfied from the evidence that Mr. Sebastian, representing appellant as her attorney, did agree with the father and the attorney for appellee that the payment of $500,and the attorney’s fee of $50 would be in satisfaction of the judgment for alimony, and that the judgment fixing the amount was predicated upon — 205 — that agreement, rather than upon the proof in the record. We are also satisfied that appellant did not authorize the compromise and did not know of it. Her counsel had not the legal authority to enter into a compromise for her without her express authority. Smith v. Dixon, 3 Metc., 438; Cox. v. Adelsdorf, 51 S. W., 616, 21 Ky. Law Rep., 421. The compromise was therefore voidable by her. When appraised of it, she must elect to either ratify or disaffirm it. If she ratify it, that ends it. ' If she disaffirms it, then she must consent to stand where she was before it was made. She will not in equity be allowed to say in one breath that she will claim the fruits of the agreement, and in the next breath to deny the condition upon which the agreement was made. The case then stands thus: A divorce has been granted to appellant upon allegation and proof of abandonment. Her claim for alimony asserted in the petition is undisposed of. She has been paid $500 on her claim for alimony, and $50 on her counsel fee. That she is legally entitled to alimony in this case is not now an open question. The only question is: How much should be awarded her? Even upon the showing she made in the partial preparation of the case, it seems to us that $1,500 was wholly inadequate. Just what property appellee then had is not satisfactorily shown. But it is shown that he had youth, health, strength, and business ability, no mean assets in these times. Many a man begins life with the charge of a family with no more, yet achieves success. The dependent condition of the wife, the helplessness and just needs of their child, both imposing legal and moral obligations upon the husband and father not discharged by divorce, nor diminished — 206 — by Ms abandonment, or want of affection, are elements which enter into the court’s consideration in .fixing the amount of alimony. Not only what appellee had when the action was begun, but what he has now, and his reasonable expectancy (Muir v. Muir, 92 S. W. 314, 28 Ky. Law Rep. 1355, 4 L. R. A. (N. S.) 909) and his earning capacity (Canine v. Canine, 16 S. W. 367, 13 Ky. Law Rep. 124) may also be considered, and should be, in ascertaining the just amount necessary to maintain appellant and her child comfortably, and to educate the child fittingly, and the probability ■of appellee to pay it. This is exacted of appellee not as a penalty alone for his fault (though that may also be considered), but is in discharge of his contractual, and more particularly of his social, obligation imposed on him by law as an incident of manhood and the head of á family. ' Let the judgment be reversed and cause remanded for further proceedings not inconsistent with this opinion. ■