
    McKee v. McKee.
    (Decided May 27, 1921.)
    Appeal from Boyd Circuit Court.
    1. Divorce — Grounds—Cruel and Inhuman Treatment- — Evidence.— Where defendant, in a suit filed by his wife to obtain a divorce on the ground of cruel and inhuman treatment, admits that he struck her with his- fist and blacked her eye and bled her nose, and on another occasion pulled out a considerable portion of her hair, he will not be allowed to excuse himself for such conduct -on the ground that he acted in self-defense, unless his contention is established by clear and convincng proof, which the testimony in this case failed to do, as is -shown in the opinion.
    
      2. Divorce — Faults—Physical Force as Correction. — It is the duty of either spouse to bear with patience -the faults and foibles of the other and not to try to correct them by physical chastisement or other methods calculated to produce quarrels and encounters. If the conduct of the offending spouse is such as to warrant it, relief may be had in the courts and it should not be sought by physical force.
    3. Divorce — Alimony—Evidence.—Under the evidence as recited in the opinion the wife should have been granted an absolute divorce and monthly alimony in the sum of $25.00.
    J. F. STEWART for appellant.
    No brief for appellee.
   Opinion of the Court by

Judge Thomas

Reversing.

The appellant and plaintiff below, Clara B. McKee, sued the appellee and defendant below, Harlan McKee, in the Boyd circuit court to obtain judgment against him for a divorce, for alimony and for the custody of their two infant children, Elmer McKee and Garnett McKee, whose ages are seven and two years, respectively. After the taking of testimony by plaintiff only, the cause was submitted and the court rendered judgment in which it dismissed the petition for alimony and for an absolute divorce, but decreed a divorce a mensa et thoro, and plaintiff was given the custody of the younger child, Garnett McKee, and she was allowed $15.00 per month for its support, which the defendant was ordered to pay at the first of each month beginning July 1, 1919, and defendant was adjudged to pay the cost of the litigation, including an allowance of $25.00 to plaintiff’s attorney. The defendant was adjudged the custody of the older child, Elmer McKee. From that judgment plaintiff appeals, insisting that the court erred in not granting to her an absolute divorce, in disallowing her alimony, in giving to defendant the custody of Elmer McKee, and in making an insufficient allowance to her attorney.

The grounds relied on in the petition for the procurement of the divorce are (1), Six months’ cruel and inhuman behavior toward plaintiff in such a manner as to indicate a settled aversion toward her and to permanently destroy her peace and happiness, and (2), such cruel beating and injury to the person of plaintiff by the defendant as indicated an outrageous temper in him and probable- danger to her life or danger of suffering great bodily injury from her remaining with him. The petition alleged that plaintiff was a healthy, able-bodied young man and was capable of earning and was earning at the time of the filing of the suit $200.00 per month, and that he owned a farm in the state of Ohio valued at between $1,000.00 and $1,600.00. The answer denied the grounds of divorce and put in issue the right of plaintiff to the custody of the children, but the averments relating to the financial standing and ability of defendant were undenied.

From the admissions in the pleadings, and from the uncontroverted testimony in the case, it appears that plaintiff at the time of giving her deposition in March, 1919, was 24 years of age, having married in 1911 when she was only 17 years of age. The defendant is a few years her senior. The parties lived together on a farm in Ohio, near the city of Ironton, until about the first of December, 1917, when they moved to Ashland, Kentucky, where defendant procured a position with a railroad company at a salary of $200.00 per month, and where they continued to reside until the separation on December 4, 1918. The farm in Ohio, worth at least $1,250.00, is still owned by defendant. Both of the parties appear to be reasonably industrious and to have performed their respective duties in establishing, providing for and maintaining the material necessities of the home, but defendant was more or less exacting in regard to the personal expenses, of his wife, even to the degree of penuriousness, and he was quite demanding of her as to the purposes for which she would sx'end the few and small amounts of money with which he would entrust her. She does not seem to have been lavish in her desires for dress, but whether so or not she was by no means gratified in that respect. Defendant also appears to have harbored an unfounded jealousy toward plaintiff and he criticized her because, as he claimed, she would not wear in his presence a cheap hat which he admired, and which she had made by covering a frame costing only ten cents. He likewise became incensed because his wife attended a neighbor while in childbirth; and he became very much enraged when his. wife exhibited to him an anonymous letter stating that he, on some of the numerous nights while away from home late, was in company with some lewd women; and he very much objected to her taking in sewing for some neighbors whereby she could obtain some extra pin money, and which does not appear to have interfered in the least with her attention to her household duties. Defendant, while living upon the farm, spent the greater portion of many nights away from home fox hunting, and he indulged in the same practice of absenting himself from home at night after their removal to Ash-land. In addition, it appears that defendant at times during his married life was addicted to the drinking habit, and to make matters' worse plaintiff herself is shown to have possessed what the witnesses called “a high temper.”

As stated, the facts down to this point are either admitted or proven by uncontradicted testimony. The only contrariety in the testimony (which, according to our view, is slight) is in that part of it relating to the acts of cruelty on the part of defendant as furnishing the grounds for divorce. He admits in Ms testimony numerous quarrels with his wife, but which standing alone would be insufficient to establish the charges against him; but his conduct, according to his own testimony, did not stop with quarreling alone, for on one occasion, which was two days before the separation, he struck plaintiff in the face with his fist and knocked her on the floor, where she remained unconscious for some minutes and caused her nose to bleed freely and for her to wear a black eye for more than a month. He applied to her vile names, and on another occasion, prior to the last one, he corporally punished her and pulled from her head a large quantity of hair. It is also shown by her testimony, and not denied by him, that he would brutally treat the children and he beat one of them at one time to such an extent that its back was. blistered for days and plaintiff came in for her share of denunciation for protesting against the child’s treatment. The wife testified, and it stands uncontradicted, that on a number of occasions defendant would say to her that he had no affection for her and that there were a number of women in Ashland that treated him better than she did. She also testified that “I went over to Mrs. Clark’s to get some goods, to make her some dresses and when he saw them he came and struck me and said he would kill me. He knocked me and when I came to he said I had no witness to prove it after he had whipped me.” She testified that while drinking defendant would choke her until her breath was nearly gone. Defendant admits striking plaintiff and also admits pulling out her hair, but he claims that he did so in self-defense. Our examination of the testimony fails to support his excuse for his conduct. We are not prepared to say that one spouse may never inflict corporal punishment upon the other in the absolutely necessary defense of himself or herself or some member of the family, but the testimony -should clearly establish the right to do so, which is by no means true in this case. On the contrary, according to the testimony of plaintiff, each of the difficulties and each of the cruel punishments of her by her husband, was without excuse, and we are by no means convinced from the testimony of defendant himself that he was blameless, since his petty jealousies and his exacting disposition, according to his own theory, seem to have been at the bottom of the trouble.

Another circumstance, not to be overlooked, is that on two prior occasions, after receiving physical chastisement, plaintiff sued defendant for the same relief she seeks in this action. On each occasion the suits were dismissed at his. solicitation, as he admits, and upon his promise, as testified to by plaintiff, that he would reform his future conduct toward her. On -one of the occasions after the dismissal of the suit he claimed to have been religiously converted, but in a few weeks he resumed his old course and when plaintiff reminded him of his conversion he became offended because she “ridiculed his religion.” We recite these circumstances, as showing that defendant’s insinuation of entire blame on the part of plaintiff can scarcely be true, for if so he would have hardly pursued the unnatural course of seeking her return to him, and the dismissal of the prior suits on each of those two occasions.

The high temper of plaintiff was an unfortunate fact; but it was one that defendant should have taken into consideration in his treatment of and his dealings with and demeanor toward her and to have tempered them, even to exhaustion, with all the gentility and kindness due from a husband to a member of his family, especially his wife. At any rate her temper, howsoever bad, would not alone authorize him to resort to the infliction of corporal punishment upon her in order to “put her under his thumb,” as testified to by the plaintiff, and not denied by defendant. Prom the testimony in this record we entertain no doubt that if defendant had freed himself of the faults and foibles, hereinbefore referred to, and had exercised that patience, gentleness and kindness toward defendant which is due from a husband to his wife, followed by even a modicum of affection instead of a renunciation of it, the matrimonial bark would still be sailing on smooth waters instead of being wrecked by the tempestuous storms 'which wei think the testimony shows were generated by him. Entertaining this view it results that the court was in error in dismissing plaintiff’s petition and in refusing to grant her a divorce.

While defendant was brought before this court on a warning order he has. entered his appearance by filing a written stipulation during the pendency of the appeal and we, therefore, have jurisdiction to determine the question of alimony. From the admitted facts as to defendant’s earning capacity, and considering the property he owns, it is easily apparent that an allowance of $25.00 per month for the maintenance of defendant and the $15.00 per month for maintenance of the child allotted to her, making a total sum of $40.00 per month, is exceedingly reasonable, and by the same token we conclude that plaintiff’s attorney should be allowed an additional sum of $25.00.

The testimony in the record is mot sufficient to show any error in the judgment concerning the custody of the children and that portion of it will not be disturbed.

Wherefore the judgment is reversed with directions to enter a judgment as herein indicated and to retain the case on the docket so that the questions of alimony and the custody of the children may be readjusted according to future alterations in conditions, if any.  