
    Bailey v. Bailey.
    (Decided November 6, 1925.)
    Appeal from Harlan Circuit Court.
    1. Divorce — Leaving Chattel Property Within State Held Insufficient to Maintain Wife’s Residence. — Where wife went to live with husband in foreign state, she thereby lost her residence in Kentucky, and that she left chattels in state was not sufficient to maintain residence, so as to permit suit for divorce, under Ky. Stats., section 2120, requiring continuous residence for one year.
    2. Divorce — Residence of 12' Months Not Necessary to Sue for Alimony. — A residence for 12 months, under Ky. Stats., section 2120, is not necessary in order to maintain action for alimony.
    3. Divorce — Order for Husband’s Arrest Held Unwarranted by Pacts. —Where husband, attending school in foreign state, returned to' Kentucky at wife’s request, having written -her of his intention to get employment within state, and had done nothing to justify wife’s allegation that he was about to leave state, order for his arrest, under Civil Code of Practice, section 153, was unwarranted.
    4. Divorce — Judgment for Alimony and Attorney’s Pees, though. Too Large, Not Disturbed, in Absence of Complaint. — Although judgment for alimony and attorney’s fees awarded wife, exceeding value of husband’s property, was much too large, and really should be reduced, where husband does not complain, it cannot be disturbed.
    HALL, JONES & LEE for appellant.
    J. B. SNYDER and J. S. POSTER for appellee.
   Opinion of. the Court by

Drury, Commissioner

Reversing in part and affirming in part.

The appellee was plaintiff in the trial court, and we shall hereafter refer to her as plaintiff. She began this action against the appellant, whom we shall hereafter call defendant, to secure divorce and alimony. The court gave her a divorce and required defendant to pay her $1,000.00 as alimony, payable at the rate of $25.00 per month, also to pay her attorneys a fee of $200.00 for their services. At the outset of this case, an order had been made for the arrest of the defendant, under section 153 of the Civil Code, and under that order, he was arrested and put in jail. He was kept there for several days until he obtained, his release by executing a bond under section 163 of the Civil Code. In the’final judgment, this order for the arrest of defendant was sustained, and as his surety had exercised the right given him by section 169 of the Civil Code, and surrendered him, he was again committed to jail, and remained there until he superseded the judgment. He has appealed to this court from only that part of this judgment which sustained the order for his arrest.

During the scholastic year, 1919-20, the defendant was professor of mathematics in the Lincoln Memorial University, of Harrogate, Tennessee. The plaintiff was a student at that university. She was a young woman of charming face and figure. The defendant became very fond of her and after her return to her home in Harlan county, Kentucky, the defendant visited her, and they were married on July 10, 1920. During the scholastic year 1920-21, they lived at Harrogate, Tennessee, and during the next scholastic year they lived at Ohatchee, Alabama, until May 10, 1922, when the plaintiff returned to the home of her parents, while the defendant was engaged in a temporary employment during the summer months, at the conclusion of which he came to the home of the plaintiff’s parents. He remained there a short time, and then went to New York to take a course at Columbia University, for the purpose of getting a degree which would enable him to command a better salary. It seems that he misunderstood the requirements of the university, for after he got there, he found that he could not obtain his degree in one year, because of certain physical cultural requirements of which he did not know before he went. He wrote his wife about the matter 'and asked her advice as to what he should do. He suggested to her that he would return to Kentucky, and try to secure some employment in or near Harlan. She answered, asking him to come, and he did so. When he got to the home of the plaintiff’s parents he met her mother, who told him that plaintiff had gone out for a few minutes, but would soon be back. She returned in a few minutes, and brought the sheriff with her. She had, a few minutes before, filed this action against him for divorce, alleging cruelty. She had made the allegations that are required to obtain the arrest of the defendant, and the sheriff forthwith, arrested him and put him in jail.

The plaintiff has taken a cross.-appeal, and has asked for more alimony; that it be paid .in a lump sum, and for a larger fee for her attorneys. When the plaintiff married defendant, and went to live with him in Tennessee, she lost her residence in Kentucky, and as she did not return to Kentucky until May 10,1922, she had not resided within the state for one year at the time the suit was brought. The fact that she left her piano and some of her wedding presents in Kentucky is not sufficient to maintain her residence here. It is suggested that not having been a continuous resident of the state for a year, as required by section 2120 of the statutes, the plaintiff has no right to sue for divorce in this state, and no right to prosecute a cross-appeal for increase of alimony and attorneys’ fees. The question of her divorce is not before us, and under the ease of George v. George, 190 Ky. 706, 228 S. W. 408, a residence of twelve months is not necessary in order to maintain an action for alimony.

The married life of these two young people was not pleasant. The plaintiff was of a jealous disposition, and the defendant, either purposely or unthoughtedly, did many things to tantalize her; but his going to New York to school was thoroughly talked over and understood by the plaintiff and her family, and everything seemed satisfactory. While he was gone she secured a letter which he had written to a eugenic society, which she says aroused her and caused her to take the action she did. We admit that the defendant did a foolish thing when he wrote this letter, but there are few of us entirely free from folly. Aside from an extravagant appraisement of himself, and probably an underestimate of the plaintiff, there was really nothing in the letter, and these two young people might have adjusted their troubles and lived a happy and useful life together if plaintiff had not acted so hastily. Defendant had returned from New York at her suggestion. He came into the state at her request. He had written her that he was going to try to get employment in the neighborhood of Harlan, and she, knowing these things, had this writ issued before she saw him after his return. He certainly had not said or done anything to justify her in swearing to a petition containing allegations that he was about to leave the state. The issue of this order for defendant’s arrest was not warranted by the facts, and the judgment of the court sustaining that order is erroneous. To that extent the judgment is reversed and this cause remanded for consistent proceedings. Upon the plaintiff’s cross-appeal, in which she asks for more alimony and attorneys ’ fees, it appears that the judgment for alimony and attorneys’' fees awarded plaintiff exceeds the' value of the defendant’s property, is much too large, and really should be reduced, but the defendant is not complaining of it, so we cannot disturb it. The judgment is affirmed.  