Woodall, Ramon A., Jr.

English

University of Kentucky

Kentucky Law JournalVolume 28 | Issue 2 Article 91940Divorce--Allowance of Alimony to the Wife Whenthe Divorce Is Granted Because of the Wife's FaultRamon A. Woodall Jr.University of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Family Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationWoodall, Ramon A. Jr. (1940) "Divorce--Allowance of Alimony to the Wife When the Divorce Is Granted Because of the Wife's Fault,"Kentucky Law Journal: Vol. 28 : Iss. 2 , Article 9.Available at: https://uknowledge.uky.edu/klj/vol28/iss2/9STUDENT NOTESbut no other case so clearly distinguishes between the two kinds ofwills.A Wisconsin case, In re Noon's WiZZZ has been often referred to asupholding the view that express revocation is immediately effective.The court referred to the statute, in that case, providing for the revoca-tion of wills by "another will or codicil, executed in writing", and said,"therefore, when a second will is drawn and executed with theformality required by statute, and containing an unlimited revocatoryclause, all former wills are wiped out and held for naught". While theWisconsin statute provided further that a will may be revoked, "(or)by some other iriting," etc., the court did not refer to that part ofthe statute. It might be said, therefore, that this decision is contraryto Whitehifl v. Habing in that it is not based on the theory that arevocatory clause is effective as a "writing" apart from the will. Butfrom the cases cited and the general language of the court, it is obviousthat it intended to follow the doctrine as set out by the other caseswithout going into any detailed reasoning. Although it might beinferred from the language of the court that a will revoking by implica-tion, only, would cause a different decision to be reached, the case doesnot hold that, and no such Wisconsin case has been found by the writer.To summarize briefly: The question whether there is a distinctionbetween a later will which revokes by express terms and one whichrevokes by implication, only, is inseperably connected with the proposi-tion that express revocation is immediately effective. In many statesthis question is settled by statute. Although there are many dicta onthe question only three states are generally conceded to distinguishbetween the two kinds of wills, and of these, only one has given (sofar as the writer has found) an unequivocal decision in both respects.PALmER L. HALLDIVORCE-ALLOWANCE OF ALIMONY TO THE WIFE WHEN THEDIVORCE IS GRANTED BECAUSE OF THE WIFE'S FAULTAlimony was first granted by the ecclesiastical courts of Englandas Incidental to a divorce a mensa et thoro. It was considered as theallowance which a husband, by order of the court, paid to his wife livingseparate from him for her maintenance. This was true because thecourt could not decree an absolute divorce and the allowance was solelyfor the wife's support, to continue during their joint lives, or so longas they lived separate and apart.'During the period in which the ecclesiastical court granted thedivorce a mensa et thoro, the decree a vinculo matrimonii was grantedonly by act of Parliament when the marriage was for some cause unlaw-ful ab initio. It should be noted that the husband was entitled to takez 115 Wis. 299, 91 N.W. 670 (1902).2II Poll. & Maitland Hist. of Eng. Law (2d ed. 1911), p. 392 to396; Madden, Domestic Relations (1931), p. 256 to 261 and 319 to 330.2II Poll. & Malt., Hist. of Eng. Law (2d el. 1911), p. 390; Madden,KENTUCKY LAW JOURNALthe fruits and profits of the wife's land during the marriage and sincethey remained married under the divorce a mensa et thoro, the husbandretained the property of the wife although such property was returnedto her under the decree a vinculo. In the latter it was impossible tomake an award for alimony because the parties were no longer husbandand wife (or had never been) and the right to alimony depended uponthe duty of the husband to support his wife. From the decisionshanded down by the ecclesiastical courts we have the general principlethat a wife is not entitled tQ alimony if the separation or divorce was aresult of her own martial fault.3The matter of alimony is regulated altogether by statute In alljurisdictions of the United States but the decisions of the ecclesiasticalcourts have had a marked influence on the adoption of such statutes aswill be noted from the Kentucky Statute as follows: "If the wifehave not sufficient estate of her own she may, on divorce obtained byher,4 have such allowance out of her husband's as shall be deemed equi-table . . ."5 Therefore under this statutory provision and the decisionsof the Kentucky courts, the general rule is that permanent alimonywill not be awarded to the wife from whom the husband obtainsa divorce because of her martial fault or misconduct.8The rule is almost universal that permanent alimony will bedenied to a wife who has been found guilty of adultery.7 The Iowa Courtstated in Fivecoat v. Fivecoat," "as a rule of law, it must be very wellsettled that where a divorce is granted the husband on the ground ofDom. Rel. (1931), at p. 257. That the wife's property vests in thehusband by act of law, see 1 Bla. Comm. (Sharswood's 1872), 433, andMadden, Dom. Rel. (1931), p. 83 to 94.31 Bla. Comm. 441; 3 Bla. Comm. 94; Madden, Domestic Relations(1931), p. 223, ftn. 26; Fisher v. Fisher, 164 Eng. Rep. 1055. (1861).Italics added.Kentucky Statutes, sec. 2122 (Carroll's 1938).8 Gains v. Gains, 26 Ky. L. Rep. 471, 19 S.W. 929 (1892); Tuggles v.Tuggles, 17 Ky. L. Rep. 221, 30 S.W. 875 (1895); Cottrell v. Cottrell,24 Ky. L. Rep. 2417, 74 S.W. 227 (1903); Henry v. Henry, 25 Ky. L.Rep. 596, 76 S.W. 130 (1903); Holman v. Holman, 155 Ky. 493, 159 S.W.937 (1913); Vallandingham v. Vallandingham, 232 Ky. 123, 22 S.W.(2d) 424 (1929). See also Re McKenna, 116 Cal. App. 232, 2 Pac. (2d)429 (1931); Rybakowicz v. Rybakowicz, 290 Ill. 550, 125 N.E. 370(1919); Lofvander v. Lofvander, 146 Mich. 370, 109 N.W. 662 (1906);Coffee v. Coffee, 145 Miss. 872, 111 So. 377 (1927); Elliot v. Elliot, 135Mo. App. 42, 115 S.W. 486 (1909); Damm v. Damm, 82 Mont. 239, 266Pac. 410 (1928); Isaacs v. Isaacs, 71 Neb. 537, 99 N.W. 268 (1904);Waring v. Waring, 100 N.Y. 570, 3 N.E. 289 (1885); Harris v. Harris,31 Gratt. 13 (Va. 1878); Van Gelder v. Van Gelder, 61 Wash. 146, 112Pac. 86 (1910); Martin v. Martin, 33 W. Va. 695, 11 S.E. 12 (1890).'Beeler v. Beeler, 19 Ky. L. Rep. 1936, 44 S.W. 136 (1898); Dollinsv. Dollins, 26 Ky. L. Rep. 1036, 83 S.W. 95 (1904); Robards v. Robards,33 Ky. L. Rep. 565, 110 S.W. 422 (1908); Phelps v. Phelps, 176 Ky.456, 195 S.W. 779 (1917); Hickling v. Hickling, 40 Ill. App. 73 (1891);Fites v. Fites, 62 Ind. App. 396, 112 N.E. 39 (1916); Leupold v. Leupold,164 Iowa 595, 146 N.W. 55 (1914); Buerfening v. Buerfening, 23 Minn.663 (187"1); Hulett v. Hulett, 152 Miss. 476, 119 So. 581 (1929).832 Iowa 198 (1871).STUDENT NOTESthe adultery of the wife, she is not entitled to alimony out of the hus-band's estate." Apparently the cases do no,t go so far as to say that itwould be improper to allow alimony to an adulterous wife if it could beshown that the husband had acquired property through the wife orthrough her efforts, through the joint efforts of the husband and wife,or where the acquisition came through a comparative lifetime of indus-try on the part of the wife even though the husband was without faultas respects the adulterous act of the wife. However, it should be notedthat where the wife was granted a divorce on the ground of cruelty,the husband could set up adultery on the part of the wife as a defenseto her action for alimony and although the Court of Appeals was with-out jurisdiction to reverse the judgment granting the wife a divorce, itwould reverse so much of the judgment as awarded her alimony.'The courts have reached a similar result and denied alimony to awife when she has been guilty of lewd and lascivious conduct, ° althoughIt is proper to make an award to the wife for contractual obligationswhich the husband owes to her." But where the evidence shows thatthe wife has been guilty of such conduct, she would not be entitled toalimony even though she had been granted a divorce on the grounds ofcruelty.1'2 The courts will also refuse to grant alimony where the evi-dence shows that the wife was guilty of cruelty,' malformation orImpotency," and when she had abandoned her husband without legaljustiflcation.1However strict the rule might appear, the courts have recognizedlimitations and exceptions where the husband is granted a divorce andthe particular circumstances of the wife justify the allowance." In a9Beeler v. Beeler, 19 Ky. L. Rep. 1936, 44 S.W. 136 (1898).10 Tuggles v. Tuggles, 17 Ky. L. Rep. 221, 30 S.W. 875 (1895); Hol-man v. Holman, 155 Ky. 493, 159 S.W. 937 (1913); Hehr v. Hehr, 203Ky. 727, 263 S.W. 33 (1924); Davis v. Davis, 210 Ky. 89, 275 S.W. 26(1925).Davis v. Davis, 210 Ky. 89, 275 S.W. 26 (1925).Vallandingham v. Vallandingham 232 Ky. 123, 22 S.W. (2d) 424(1929).,3 Hawkins v. Hawkins, 202 Ky. 55, 258 S.W. 963 (1924); Sales v.Sales, 222 Ky. 175, 300 S.W. 354 (1927); Everett v. Everett, 52 Cal. 383(1877); Phinney v. Phinney, 77 Fla. 850, 82 So. 357 (1919); Palmer v.Palmer, 1 Paige 276 (N.Y. 1828); Dart v. Dart, 164 Eng. Reprint 1254(1863)."'Axton v. Axton, 182 Ky. 286, 206 S.W 480 (1918); Ward v. Ward,213 Ky. 606, 281 S.W. 801 (1926). But see Knestrick v. Knestrick,1 Ohio App. 285 (1913).1 Lee v. Lee. 62 Ky. 197 (1864); Woolfolk v. Woolfolk, 96 Ky. 657,29 S.W. 742 (1895); Garrett v. Garrett, 19 Ky. L. Rep. 1674, 44 S.W.112 (1898); Smith v. Smith, 27 Ky. L. Rep. 776, 86 S.W. 678 (1905);Lampson v. Lampson, 171 Cal. 332, 153 Pac. 238 (1915); Coffee v.Coffee, 145 Miss. 872, 111 So. 377 (1927); Grush v. Grush, 90 Mont. 381,3 Pac. (2d) 402 (1931); Wilkins v. Wilkins, 84 Neb. 206, 120 N.W.907 (1909); Waring v. Waring, 100 N.Y. 570, 3 N.E. 289 (1885); Carr v.Carr, 22 Gratt. 168 (Va. 1872); Martin v. Martin, 33 W. Va. 695, 11S.E. 12 (1890)."Chandler v. Chandler, 13 Ind. 492 (1859); Prichard v. Prichard,164 Eng. Reprint 1378 (1864), the court held that a decree for judicialKENTUCKy LAW JouRNALcase where an allowance for alimony would otherwise be denied, it hasbeen held that if the wife had contributed substantially to the propertyof her husband by her funds or industry, her guilt should not be furtherpunished by a forfeiture of her interest in such property and an allow-ance of alimony should be made to her.7In a recent Florida case8 the court found that the wife was guiltyof adultery but also found that she had contributed materially in fundsand industry over a period of years to the husband's business and sinceshe had a special equity in the business, it was proper for the trialcourt to award the wife $2,000 for this special equitable interest and$800 for attorney's fees. The court stated, "whatever consequences thewife may be compelled under the law to suffer for her marital derelic-tion by the severance of the bonds of matrimony, she is not required toincur the forfeiture of any of her already vested equitable propertyrights which were acquired by her while the matrimonial barque wassailing on smoother seas." But it stated further, ". . . such anallowance is not alimony and should never be awarded . . . unlessspecial circumstances . . . show contributions of funds and servicesover and above the performance of ordinary marital duties."''Most jurisdictions have held that it was proper to grant alimonyto the wife on granting a divorce to the husband when it is found thatboth parties are at fault" but the Kentucky decisions limit such righttq cases in which the wife has not been guilty of some moral delin-quency." In this jurisdiction, where a judgment decreeing a divorceis not reviewable on appeal in so far as it grants a divorce, it has beenheld proper to make an allowance for alimony where the divorce wasseparation on the husband's petition on the ground of the wife'scruelty should make some provision for alimony. The court said thatif there was no judicial precedent for such a provision, the courtwould make one and overruled Dart v. Dart, 164 Eng. Reprint 1254(1863).1'Luthe v. Luthe, 12 Colo. 421, 21 Pac. 467 (1889); Carlton v.Carlton, 78 Fla. 252, 83 So. 87 (1919); Fulk v. Fulk, 8 Blackf. 561 (Ind.1847); Conner v. Conner, 29 Ind. 48 (1867); Fites v. Fites, 62 Ind. App.396, 112 N.E. 39 (1916); Dragish v. Dragish, 241 Mich. 563, 217 N.W.769 (1928); Dickerson v. Dickerson, 26 Neb. 318, 42 N.W. 9 (1889);Cross v. Cross, 63 N.H. 444 (1885); Dailey v. Dailey, Wright 514 (Ohio1834); Bent v. Bent, 164 Eng. Reprint 1047 (1861). But see Spitler v.Spitler, 108 Ill. 120 (1883).Is Heath v. Heath, 103 Fla. 1071, 138 So. 796 (1932).'9Note 18 supra.10 Pence v. Pence, 6 B. Mon. 496 (Ky. 1846); Pore v. Pore, 20 Ky.L. Rep. 1980, 50 S.W. 681 (1899); Green v. Green, 152 Ky. 486, 153S.W. 775 (1913); Burton v. Burton, 184 Ky. 268, 211 S.W. 869 (1919);Hoffman v. Hoffman, 190 Ky. 13, 226 S.W. 119 (1920); Edwards v.Edwards, 84 Ala. 361 (1887); Reynolds v. Reynolds, 92 Mich. 104, 52N.W. 295 (1892); Sheafe v. Sheafe, 24 N.H. 564 (1852). Where thewife is partially at fault, see Rose v. Rose, 9 Ark. 507 (1849); Dupontv. Dupont, 10 Iowa 112 (1849); Stiles v. Stiles, 224 Ky. 526, 6 S.W.(2d) 679 (1928).2-Green v. Green, 152 Ky. 486, 153 S.W. 775 (1913); Hoffman v.Hoffman, 190 Ky. 13, 226 S.W. 119 (1920).STUDENT NOTESerroneously granted to the husband and the wife's estate was not suffi-cient for her support.2 RAMON A. WOODALL, JR.NEGLIGENCE AS CONDUCTThe present discussion is meant to be a treatment of the subjectof negligence-a type of conduct giving rise sometimes to civil liabil-ity, sometimes to criminal liability,' sometimes to both. There is sub-stantial authority for the position that criminal negligence differs fromcivil only in degree and not in kind.2 'Due to the fact that negligenceon the civil side of the docket has received more attention from out-standing legal minds than has that in the field of criminal law, materialgleaned predominantly from discussions of civil negligence will beused. It is submitted that the standard for evaluating negligent con-duct as discussed in this note is applicable both to civil and to criminalcases; that "reckless disregard" corresponds to "gross negligence",'that type of misconduct upon which convictions of involuntary man-slaughter are based.'According to the Restatement of the Law of Tortsr "negligence isany conduct, except conduct recklessly disregardful of an interest ofothers, which falls below the standard established by law for the pro-tection of others against unreasonable risk of harm." It will be seen" Gaines v. Gaines, 26 Ky. L. Rep. 471, 19 S.W. 929 (1892); Hooverv. Hoover, 14 Ky. L. Rep. 680, 21 S.W. 234 (1893); Tilton v. Tilton, 16Ky. L. Rep. 538, 29 S.W. 290 (1895); Thompson v. Thompson, 27 Ky.L. Rep. 516, S5 S.W. 730 (1905); Caudill v. Caudill, 172 Ky. 460, 189S.W. 431 (1916); Burton v. Burton, 184 Ky. 268, 211 S.W. 869 (1919).'Clark and Marshall, Crimes (3d ed. 1927) 79, sec. 51; id. at 246,sec. 204; May, Criminal Law (4th ed. 1938) 260, sec. 159; Davis, TheDevelopment of Negligence as a Basis for Liability in Criminal Horai-cide Cases, 26 Ky. L. J. 209 (1938).2 "This last is really, to my mind, what a crime is. It is a for-bidden act in which society as a whole has a peculiar interest, and inthe prevention of which it is particularly concerned. It is thisconcern which brings the state as a juristic person into the matter as aparty plaintiff, and, to my mind, it is this procedural matter which isthe distinction between a crime and a tort." Levitt, Extent andFunction of the Doctrine of Mens Rea, 17 Ill. L.R. 578, 583 (1923);11... criminal negligence-is largely a matter of degree . . .", Statev. Lester, 127 Minn. 282, 149 N.W. 297, 298 (1914); "If he knows orreasonably should know his act tends to endanger life, and that thedeath of a human being is not 'improbable' as a result thereof, it issufficient to sustain a conviction of manslaughter by culpable negli-gence." State v. Studebaker, - Mo, -, 66 S.W. (2d) 877, 881 (1933).3 Cannon v. State, 91 Fla. 214, 107 So. 360, 363 (1926). Comparealso the quotation from State v. Studebaker, supra note 2, with theRestatement definition of Reckless disregard, infra note 5. And seeRestatement of Torts, sec. 282, comment d, special note: 5.'People v. Adams, 289 Ill. 339, 124 N.E. 575 (1919); State v. Blaine,104 N.J. Law 325, 140 Atl. 566 (1928); Rex v. Greisman, 4 D.L.R.738 (Ont. 1926); Clark and Marshall, op. cit, supra note 1, at 330,sec. 264a; Wharton on Homicide (3d ed. 1907) 681.Sec. 282.

Divorce--Allowance of Alimony to the Wife When the Divorce Is Granted Because of the Wife\u27s Fault

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Divorce--Allowance of Alimony to the Wife When the Divorce Is Granted Because of the Wife\u27s Fault

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