
    CASE 10 — DIVORCE ACTION BY K. V. WILLIAMS AGAINST LOUISA M. WILLIAMS IN WHICH DEPENDANT FILED A CROSS-PETITION FOR A DIVORCE AND ALIMONY —
    December 10, 1909.
    Williams v. Williams
    Appeal from Ohio Circuit Court.
    T. P. Birkhead, Circuit Judge.
    From a judgment for plaintiff, defenuant appeals.
    —Affirmed.
    1. Divorce — Right of Action. — The right to a divorce is purely statutory.
    2 Divorce — Actions—Appeal—Relief Granted on Appeal. — While, by the direct provisions of Ky. St. Sec. 950 (Russell’s St. Sec. 2784), a judgment granting a divorce may not be reversed the Supreme Court may, on appeal in an action therefor, examine the record to determine whether the party granted a divorce was entitled thereto, and, if -not, may grant such other relief as to property or alimony as may 'be proper, though the decree of divorce cannot he disturbed.
    3. Divorce — Grounds—Lewdness.—Under- Ky. St. Sec. 2117 (Russell’s St. Sec. 67), stating the grounds on which a wife may have a divorce, mere lewdness of the husband, short of living in adultery with another woman, is not made a ground for divorce.
    4. Husband and Wife-Separate Maintenance ' of Wife. — A wife may sue for alimony though not entitled to an absolute divorce, as where the husband’s conduct compelled her fot her peace and security to leave his home, or his lewd conduct made cohabitation there impossible without shame o.r embarrassment.
    5 Divorce' — Actions—Burden of Proof — Credibility or Witness.— Where there was no certificate of the credibility or good character of the witness relied on to prove lewdness as a ground for alimony in a divorce action and her credibility was not known to the trial judge, one of which means of determining her credibility is required by statute in order to grant relief on her testimony, the usual presumption of credibility did not. apply, and Ihe burden wag upon the party relying on such witness to show her credibility,
    6. Divorce — Actions—¡Sufficiency of Evidence. — In a divorce action against the wife in which she alleged lewdness by plaintiff as a ground for divorce and alimony, .evidence, even if competent, held not to show lewdness.
    V. Divorce — Legislative Policy — In order to justify the granting of a divorce, the evidence must satisfactorily establish one of the statutory grounds of divorce, and a mere suspicion, though based upon some evidence, is not sufficient to justify either separation or absolute divorce.
    8. Divorce — Harmless Error. — Time of Submitting Case. — That defendant’s interrogatories, in a divorce action to secure evidence on the question of alimony had not been answered for the length of time to entitle plaintiff to have the case submitted for judgment, when it was sumbitted, did not prejudice defendant, where she failed to establish her right to alimony, though allowed ample time.
    BARNES & ANDERSON for appellant.
    GLEN & SEVTMERMAN for appellee.
   Opinion op the Court by

Judge O’Rear

— Affirming.

Appellant and appellee were married in 1903, and lived together until 1906, when they separated. They had each been married before, and each had children by their former marriages. Appellant adandoned appellee in May, 1906. After living apart for more than a year appellee sued appellant for a divorce a vinculo upon the ground of abandonment. She did not controvert the fact of abandonment, but justified it on the ground that appellee had been guilty of lewd conduct with other women.

Another ground was also asserted, but, as there was no proof offered upon it, it is not noticed further. Appellant made her answer a counterclaim, and sought a divorce on the grounds asserted in her answer, and prayed for alimony. She attached interrogatories to her answer concerning the property of the husband. Upon the proof in the record the circuit court granted the husband’s prayer for divorce, and denied the wife’s prayer for alimony. Prom that judgment she prosecutes this appeal.

The legal right to a divorce in this state is purely statutory. Among the grounds allowed by the statute upon which either party “who is not in fault” may obtain a divorce is the abandonment by one party of the other for one year. By a provision of section 950, Ky. St. (Russell’s St. Sec. 2784), a judgment granting a divorce may not be reversed. Still, if the circuit court erred, on appeal this court may examine the record to determine whether the party granted the divorce was lawfully entitled to it, and, if not, although the judgment of divorce cannot, be disturbed, grant such other relief as to property or alimony as may seem proper.

■The wife in this ease was not entitled to a divorce. The statute enumerates the grounds upon which such a decree may be rendered in her favor, and they are: (1) Abandonment by the husband for one year (when she is not in fault). (2) Living id adultery with another woman. (3) Condemnation for felony. (4) Concealment of loathsome disease at time of marriage. (5) Force, duress, or fraud in obtaining marriage. (6)Uniting with religious society whose creed requires a renunciation of marriage vows. (7) Confirmed habit of drunkenness by husband for one year, accompanied with wasting of his estate, and 'failing to suitably provide for maintenance of wife or children. (8) Habitually behaving toward her by the husband, for not less than six months, in such cruel and inhuman manner as to indicate a settled aversion to her, and to permanently destroy her peace or happiness. (9) Sncli cruel beating or injury, or attempt at injury, of the wife by the husband as indicates an outrageous temper in him, or probable danger to her life, or great bodily injury from her remaining with him.. Section 2117, Ky. St.

It will be seen that l'ewdness on the part of the husband, short of living in adultery with another woman, is not statutory ground for divorce; so, even if ■(hat ground in appellant’s answer had been sustained by the proof, still she would not have been entitled to a divorce a vinculo from appellee. The right of a Avife to sue for alimony, independent of her right of divorce is sustained in Steele v. Steele, 96 Ky. 382, 29 S. W. 17, 16 Ky. Law Rep. 517; Lacey v. Lacey, 95 Ky. 110, 23 S. W. 673, 15 Ky. Law Rep. 439, and Newsome v. Newsome, 95 Ky. 383, 25 S. W. 878, 15 Ky. Law Rep. 801, as where the husband by his conduct and behavior makes it necessary for the peace and security of the wife to leave his home, or his lewd conduct is such as destroys her happiness, or to permit her without great mortification and shame to remain in his home. Davis v. Davis, 86 Ky. 32, 4 S. W. 822, 9 Ky. LaAv Rep. 300. This necessitates our examination of the evidence offered by appellant on her charge of lewdness made against her husband.

The parties to this suit are white people. A negro Avoman testified, that, late one afternoon and on the day before appellant left her husband, she was passing through appellees’ barn lot on her way to his house; that he was in the barn, and came out and accosted her, and attempted to take hold of her arm. She said she hallooed, when appellant came up, demanding to know what was the matter. Something of a scene tlien ensued between appellant and appellee. It was enough to attract the attention of several neighbors who lived nearby — on adjoining lots, or across the street. That is the whole story, so far as is disclosed by the evidence. What appellant saw, or thought she saw, and what appellee had done, or intended to do, are not disclosed, except by such inference as may be drawn from the testimony of the n egress. The statutes of this state make it more difficult to prove grounds of divorce than to sustain any other kind of suit.

The parties are incompetent to testify at all. ‘ ‘ Two witnesses, or one and strong corroborating circumstances, ’ ’ are necessary to sustain the charge of adultery or lewdness, and the credibility of good character of such witnesses must be certified to by the officer taking the deposition — must be proved — or must be known to the trial judge. The. character of the witness' in this case was not proven. There is not a certificate either of the officer taking the depositions, or of the trial judge, as to the credibility of that witness. The presumption of credibility in such case does not apply, as in other cases. The party introducing the witness has the burden of showing affirmatively that the witness is entitled to credit. The absence of that showing leaves the testimony of the witness incompetent to sustain the charge. The party to be affected cannot testify. He must be mute in the case. His condition would be precarious indeed if his reputation, happiness, and estate were left to the mercy of a dissolute character, unworthy of belief, or if they would be sworn away by one person.

Appellants’ counterclaim fell for lack of competent proof. That which was offered, even if competent under the statute was insufficient. It does not sustain the charge of lewdness. The legislative policy is indicated by the rigor of the provisions concerning divorce proceedings, that divorces are not to - be granted upon either immaterial grounds or slight evidence. The grounds are named in the statute. The evidence must satisfactorily establish the existence of one of them, in the particular case. A mere suspicion, though based on some appearances, will not justify the grave step of separation; much less does it justify the solemn decree of divorce.

Complaint is made by appellant that the case was submitted prematurely. The interrogatories had not been answered for the length of time to entitle the plaintiff to demand submission of the case for judgment. The interrogatories were, necessarily, addressed to the plaintiff to elicit evidence as to his estate. The question was important in the case only in the event appellant was entitled to alimony. But she must first establish her right to alimony. That she failed to do, although having had ample time. The order of the court submitting the case in that view of the record was not prejudicial error.

Judgment affirmed.  