
    Case 122 — EQUITY
    February 3, 1883.
    Beall v. Beall.
    APPEAL PROM WARREN CIRCUIT COURT.
    1. Although this court has no revisory power over, a judgment of divorce, it will determine whether an allowance made to the wife by the chancellor is proper. When it clearly appears that the divorce is improperly granted, not even the smallest sum will be allowed.
    2. When a divorce is asked by the wife on the ground of cruelty, the habitual behavior of the husband must show that he entertains a ■settled aversion to her.
    
      3. A judgment'for »alimony amounting to one third of the husband’s, estate is excessive.
    R. s. BEYIER, J. H. BOWDEN, and WILBUR F. BROWDER fob-appellant.
    1. The elements of the cause of divorce in this case are, that the treatment of the husband must be cruel and inhuman, it must continue six months, and it must indicate a settled aversion to the wife.
    2. The proof does not sustain the allegations of the petition; on the contrary, although the appellant was rough in his conduct, it is Shown, that he was kind to appellee.
    3. To adjudge against him a divorce was wrong; to take one third of his: estate for alimony is excessive, and by no means authorized by the-evidence. (Gen. Stat., chap. 52, art.-3, secs. 1 and 5; Boggess v. Boggess, 4'Dana, 308; Thornberry v. Thornberry, 2 J. J. Mar., 322; Griffin v. Griffin, 8 B. Mon., 121; Adams’ Eq., 137;.Bush v. Bush,, 37 Ind.; Am. Law Reg., N. S., vol. 12, p. 525; Fishli v. Fishli, 2 Litt, 337; 4 Litt., 251; Bence v. Pence, 6 B.- Mon., 499.)
    A. G. RHEA FOB. APPELLEE.
    1. The brutality of appellant to his wife when she was sick and suffering is amply shown by the proof. In the natural course of his conduct, ' violence to her person is reached by appellant. The evidence clearly shows such conduct as made it absolutely impossible for her to live; with him.
    2. He is shown to be worth between fifteen and twenty thousand dollars, and, under all the circumstances, the alimony adjudged is reasonable. (Gen. Stat., title Husband and Wife; Quisenberry v. Quisenberry, 1 Duv., 198; Fishli v. Fishli, 2 Litt., 337; Pence v. Pence, 6-B. Mon., 499; Thornberry v. Thornberry, 4 Litt., 258.)
   JUDGE PRYOR

delivered the opinion of the court.

One of the grounds for a divorce on the part of the-wife, when not in like fault, is “the habitual behavior towards her by the husband for not less than six months, in such cruel and inhuman manner as to indicate a settled, aversion to her, or to destroy permanently her peace and', happiness.” (General Statutes, chapter 52, subsection 2-of article 3-.) . . '

■ ■ In this case the appellee, Lucy Beall, filed her petition in. ‘the Logan circuit court against her husband, Geo. R. Beall, for a divorce and alimony, and on the final hearing a judgment of divorce from the bond of matrimony was granted, and a further judgment, in the way of alimony, for $3, goo.

The husband has appealed from the judgment as to the alimony, and insists that, upon the facts of the record, she was not entitled to a divorce, and therefore no allowance should have been made her for support and maintenance out of his estate; and further, that if an allowance was proper, the sum awarded is for a greater sum than she is entitled to, and should be reduced.

It is provided in section 6 of article 3, chapter g2, General Statutes, ‘ ‘ if the wife have not sufficient estate of her own, she may, on a divorce obtained by her, have such an allowance put of that of her husband as shall be deemed equitable, and be restored to the name she bore before marriage, if she desire it.”

It would seem to follow, that if the ground for a divorce had not been made out by the testimony, that no allowance for alimony should have been made; but the chancellor in this case has determined from the facts before him that the ■appellee was entitled to a divorce, and upon rendering the judgment in the exercise of the power given him by the •statute, or that he could have exercised regardless of the ■statute, proceeded to make to the wife the allowance complained of.

This court has no revisory power over a judgment of divorce, but may determine whether the allowance made the wife by the chancellor was, under all the circumstances ■of the case, proper, and if excessive, considering the pecuniary condition of the husband, will reverse the judgment that the error may be corrected; nor are we prepared to say that this court would approve an allowance for even the smallest sum, when it clearly appeared from the record that the divorce was improperly granted. It should appear that: the ■ habitual -behavior of the husband to the wife was such-as showed a settled aversion to . her. Hatred and bad treatment must-be the rule of his conduct towards her, and his. exhibition of affection for her the exception, in order to-entitle the wife to. relief upon that ground; but while the-husband .may- now and then manifest such an affection for the wife as to negative the idea that he has lost all regard, for her, still if his cruel and inhuman conduct towards herís such as to destroy permanently her peace and happiness, the wife is entitled to a divorce.

We are inclined to conclude, from a careful reading of the testimony, that the appellant loved his wife, and that his continued and persistent efforts to bring about a recon.ciliation were not .feigned but real. He was a man but little-fitted for social life, and his rough exterior, with a vulgar and profane mannerism, had but little attraction- for a melancholy and sensitive wife. She knew, however, the mam before she married him. They were own cousins, and the-testimony conduces to show that, after the marriage, she entertained the belief that the marriage of cousin with, cousin was prohibited by,the divine law, and this fact connected with her bad health, and the want of sympathy on-the part of her husband, aided greatly, no doubt, in the destruction of her- peace and happiness. They had been married for eight or ten years; she was without children, and in a boarding-house, where many were ready to increase-her sorrows by talking about the want of attention on the-part of her husband, and, as kind friends sometimes do,, increase, instead of mitigating her sufferings. The husband, knowing her sensitive condition, often spoke uncivilly to her, used the most profane and vulgar language in her presence, neglected her in many instances, and while there is room for a difference of opinion as to the cause of her constant unhappiness, the chancellor below, who knew the parties and their surroundings, has annulled the marital relation upon the ground that the happiness of the wife-has been destroyed by the cruel conduct of the husband, and we are not disposed to adjudge that his judgment is. without evidence to support it.

The chancellor has given to the wife as alimony one third in value of the husband’s estate, and to require him to raise the money upon the judgment would likely result in the sacrifice of at least one half of what he owns. The father of the appellee is yet living, and in good circumstances; she brought no estate to the husband, and with a record before us impressing the mind with the belief that, perhaps, the wife-has, to some extent, contributed to bring about her own misfortune, a much smaller sum should have been allowed for her future support.

In the case of Fishli v. Fishli, reported in 2 Littell, where there were no children, and no alleviating circumstances in favor of the husband, a decree for one third of the real estate during life, and half, of the personal estate, was given; absolutely to the wife as alimony. In that case it was. charged that the wife was not possessed of that attribute-of female character in which its excellence consists, and that the husband refused to disclose what estate he had.

In the case of Thornberry v. Thornberry, reported in 4. Littell, the parties had lived together for thirty-five years,, and by their joint exertions had accumulated the estate. The separation was caused by the unprovoked and harsh treatment of the wife, and the case one of great aggravation on the part of the husband.

In the case of Pence v. Pence, reported in 6 B. Monroe, the complainant’s estate was worth $12,000 to $13,000.' He sought the divorce from his wife on the ground of abandonment, and obtained a judgment. The" wife appealed from the judgment because she failed to get an allowance out of his estate, insisting that .the abandonment originated from his bad treatment. The wife had an estate of about $1,000 that was given her by the court below, and on the appeal the husband was decreed to pay t-he additional •sum of $750, making in all $1,750. These cases indicate that the chancellor, by reason of the brutal treatment of the wife in the one case, would inflict.a sort of punishment on the husband by taking from him more of his "estate than he would in a case where there is some palliation for the wrong. Whether so or not, the facts of each particular case will at least control the chancellor in determining the amount of the allowance to be made.

In this case there are many palliating circumstances on the side of the husband, and it is needless to say that exhibitions of temper on the part of either husband or wife, or occasional quarrels between them, that render the marriage relation unpleasant, are not sufficient grounds, even if clearly established, to authorize a dissolution of the marriage relation. . Language that may pain a sensitive woman, or the manners of a husband that may appear rough and vulgar in contrast with those educated in the refinements of social life, constitute no ground for a divorce. . The treatment of the wife by the husband must be so cruel and inhuman as to permanently destroy her peace and happiness,- or such as to indicate a settled aversion to her. In our opinion, an allowance of $2,000 is ample under the facts of this cas'e.

The judgment for $3,500 is reversed, and cause .remanded, ■with directions to make the allowance as indicated.  