Jett, William S., Jr.

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University of Kentucky

Kentucky Law JournalVolume 24 | Issue 1 Article 121935Domestic Relations--False Charge of Lewd andLascivious Conduct as Constituting Cruelty aGround for DivorceWilliam S. Jett 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 CitationJett, William S. Jr. (1935) "Domestic Relations--False Charge of Lewd and Lascivious Conduct as Constituting Cruelty a Ground forDivorce," Kentucky Law Journal: Vol. 24 : Iss. 1 , Article 12.Available at: https://uknowledge.uky.edu/klj/vol24/iss1/12KmTPuciKy LAw JOURNALsonal representative of the vendor, the former to convey the land, thelatter receiving the money. The rights of all parties may be settled inthe one action.In the event that the vendor had died before the exercise of theoption by the purchaser, the land would have gone to the heir asabove. But there would be a difference in the disposition of the pur-chase money. The vendor having died without acquiring a right tothe purchase money, the personal representative would receive noright to it. The heir, rather, would receive the purchase money,upon carrying out the obligation of conveyance imposed on the landdescending to him.0GzoanG T. SxnxmmDOMESTIC RELATIONS-FALSE CHARGE OF LEWD ANDLASCIVIOUS CONDUCT AS CONSTITUTING CRUELTY A GROUNDFOR DIVORCE.During a recent bar examination in this state, a question was putto those taking the examination which had reference to cruelty as aground for divorce in Kentucky. The question was apparently takenfrom a late Kentucky case, where the facts appear as follows. A wifeinstituted an action for divorce on the grounds of cruel and inhumantreatment. By answer and counterclaim the defendant husbandtraversed the allegations of the wife's petition and also asked for adivorce, charging that the wife had been guilty of such acts of im-morality and lewd and lascivious conduct as proved her to be un-chaste-that within six months before their separation she had beenguilty of adultery. Such charges were also proved to have been madeby the husband outside the court room. The charges were not sus-tained. The question was whether the charges of conjugal misconductmade by the husband against his wife, would, if unfounded and not ingood faith, warrant the granting of a divorce on the grounds of crueland inhuman treatment. The trial court answered the interrogatoryin the affirmative and granted an absolute divorce to the petitioner.Bouvier's Law Dictionary defines cruelty as between husband andwife as, "those acts which affect the life, the health, or even the com-fort of the party aggrieved, and give a reasonable apprehension ofbodily hurt."The weight of authority is that conduct, in order to constitutecruelty, and thus come within the statutes of the various states, mustconsist in the infliction or threatened infliction of bodily harm. This-T Upon the problem see 16 R. C. L., p. 806; 13 C. J., pp. 856-858;also, the annotations in 57 L. R. A. 643, L. R. A. 1916 F 358, 50 A. L. R.1314.Bus v. Bush , 245 Ky. 172, 53 S. W., (2d) 352 (1932).STUDENT NoTrsInfliction of bodily harm may be by personal violence, either actualor threatened, or reasonably to be apprehended, or by words or con-duct, without personal violence, causing mental suffering, and therebyinjuring or threatening to injure health.2 A charge of. "such acts ofimmorality and lewd and lascivious conduct as proved her to be un-chaste" contains none of the elements pertaining to personal violence.The question, therefore, narrows down to the proposition: might sucha charge contain danger to the health and well being of the petitioner?The words "treatment cruel and inhuman," as they are generallyset out by the statutes, whether practiced by using violence or anyother means, admit of great latitude and call for real acumen, cau-tion, and judicial discretion on the part of the trial court. In otherwords, cruelty, as a ground for divorce, does not admit of an un-equivocal definition for, "a course of conduct that would inflict greviousmental suffering upon one person might not have the same effect uponanother."'The weight of authority Is that false charges of adultery made byeither the husband or the wife maliciously and without probable causeconstitute legal cruelty.' However some jurisdictions follow the rulethat the husband will not be granted a divorce upon the grounds ofcruelty where the wife made false charges of conjugal misconduct,unless he shows that from his temperament or caling the charges pro-duced, or were likely to produce, mental suffering beyond the effectwhich such charges would naturally have upon a man. Some caseshold that false charges of conjugal misconduct are not grounds fordivorce if made while the parties are living apart,o while others saythat the mere fact that husband and wife were separated does notnecessarily prevent false and malicious charges of conjugal misconductfrom constituting cruelty.!The weight of authority with reference to false charges of con-jugal misconduct in the pleadings while a suit for divorce is pending,is that such charges will be considered as aggravating the former actsof cruelty relied on for divorce.' The majority rule is that before falsecharges of conjugal misconduct, wherever made and under any cir-cumstances, will warrant the granting of a divorce on the grounds ofcruelty, such charges must have been made in bad faith. In otherwords, the courts say that the declarant need only have acted ingood faith, based upon reasonable suspicion when the charge ofunchastity was made, and such declaration will not constitute cruelty,though the charge is erroneous.''Madden, Persons and Domestic Relations, p. 268.*De Oloedt v. De Cloedt, 24 Idaho 277, 133 Pac. 664 (1913).'19 C. J., Sec. 93, p. 51.6McAZister v. McAlister, 71 Texas 695, 10 S. W. 294 (1888)."Beach v. Beach, 4 Okla. 359, 46 Pac. 514 (1896).t MacDonadl v. MacDonald, 155 Cal. 665, 102 Pac. 927 (1909);Stewart v. Stewart, 175 Ind. 412, 94 N. E. 664 (1911).' 19 C. J., Sec. 93, p. 52.' 19 C. J., Sec. 93, p. 52.U'S-e2U v. Sallce, 21a kQ-. 12. 2RO S.-W. 932 (19z).KExTUCKy LAW JouRNAThere is a conflict in opinion as to whether the false charges ofconjugal misconduct in order to constitute grounds for divorce, musthave been made in public or in open court during the pendency ofa divorce proceeding. It is conceded that where the false charges aremade in the presence of others, it is quite unquestioned that theyconstitute cruelty of the grossest sort.u An Iowa court has gone be-yond public charges of adultery and granted divorces where thecharges were apparently made privately."In Kentucky, "cruelty," as used in the divorce statutes," meansan actual personal violence, or the reasonable apprehension of it, orsuch a course of treatment as endangers life or health and renderscohabitation unsafe." There is no settled rule in this state as to whatIs necessary to show such cruel and Inhuman behavior as to indicate ahusband's settled aversion toward his wife, except that his behaviorneed not be brutal or violent.6 In a recent Kentucky case a husband'sstatement that things told him about his wife looked suspicious washeld an insufficient charge of unchastity to constitute "cruel and in-human treatment.""6 However, a base and unfounded charge ofadultery and unchastity, made by the husband against his wife, con-stitutes such cruel and inhuman treatment as to entitle her to adivorce upon that ground,"' but the charge of the husband, in order toconstitute cruelty warranting a divorce must have been deliberatelymade and not capriciously, or in a fit of jealously, or under circum-stances not showing a determination to falsely prefer the charge.:'In short, Kentucky is in accord with the weight of authority in mak-ing the good faith of the declarant the test, before granting a divorceon the grounds of cruelty.There are no cases in Kentucky where the husband was granteda divorce from the wife on the grounds of cruel and inhuman treat-ment, where the alleged cruelty consisted of false declarations madeby the wife charging adultery and lewd and lacivious conduct on thepart of the husband. Query, what would be the decree of a Kentuckycourt in such a ease?As history progresses, the divorce laws become broa~ter in scope,and we see more and more causes constituting grounds for divorce.The result in the principal case is highly satisfactory, for In thisday, when divorce proceedings receive a far flung publicity and plead-ings are not considered as a mere pretense or sham, but as true, theunfounded malicious charge of conjugal misconduct would seem tou Anderson v. Anderson, 191 Iowa 497, 181 N. W. 241 (1921).12gesterhen v. Besterhen, 60 Iowa 301, 14 N. W. 333 (1882)."Ky. Stats., See. 2117.2'Thornberry v. Thornberry, 25 Ky. (2 J. J. Marsh.) 322 (1829).5Burns v. Burns, 173 Ky. 105, 190 S. W. 683 (1917)."Renolds v. Reyno ds, 224 Ky. 668, 6 S. W. (2d) 1078 (1928).'T Supra, note 1.vohnt . Jahnson, 183 Ky. 421, 2D W. 385 (1919).- gupra, Note 1.STUDENT Nom_make further cohabitation intolerable; and when it shall be madefully to appear that from any other reason or cause the parties can-not live together in peace and happiness, and that their welfare de-mands a separation, then it would seem to be the best policy of thelaw that a divorce be granted.The premise that a divorce will be granted on the grounds ofcruelty where one of the spouses makes a false charge of conjugalmisconduct against the other spouse, knowing such charge to befalse,' is satisfactory in the sense that such a charge is likely to havea direct bearing upon the health and welfare of the party againstwhom the charge was directed.The policy of the law is to preserve, if possible, as a practicalmatter, the marital status. The reasons are based on public policy,and welfare of the community, as well as stare decisis. Still, in orderto preserve this status, legal jurisprudence should not cause two peo-ple, who are wholly unfitted, to carry on such a relationship. Theeffect of charges of conjugal misconduct made by a husband againsthis wife, if false and unfounded, is to degrade and tear down thesanctity which originally the church, and now the law, has wovenabout a wife in an effort to preserve her in a state of cleanliness andvirtue. Such charges wreak their havoc on the wife by causing greatmental distress and worry, which in turn lead to failing health anddisease.A majority of the courts make the good faith of the declarant,who made false charges of conjugal misconduct, the test before grant-ing a divorce to the other spouse of the ground of cruelty.n As a prac-tical matter, looking at the proposition from the standpoint of theparty who is seeking a divorce, the test is weak and at the same timedifficult of application. The reason advanced by the courts for grant-ing a divorce on the grounds of craelty where false charges of conju-gal misconduct have been made is because of the harmful effect theywill have upon the health and welfare of the spouse against whomthey were directed. It is absurd to say that the good faith of thedeclarant will prevent such an effect, especially where the chargeswere made in public, or in a crowded court room. It would seemtherefore that the declarant should only be permitted to make suchcharges at his peril.The true basis for a successful marriage is love and trust, forwithout these two elements not one marriage out of a hundred wouldbe successful or long lasting. With suspicion of unchastity comesdistrust and loss of love, and such suspicion being based on what thespouse making the charge believes to be the truth, is hardly eradica-ble. When affairs reach the state where suspicions come forth asviolent epithets, the foundations of marriage are destroyed and webehold two people who are no longer husband and wife except in the'*Bupra, note 4."Supra, note 10.102 KnNTMOX LAW JOURNATLlegal connotation placed upon the words. Upon the courts devolvesthe duty of releasing the parties from a relationship which hasbecome distasteful thereby enabling them to pursue their separatesearch for a more profound happiness.WILLIA S. JWTT, JRL

Domestic Relations--False Charge of Lewd and Lascivious Conduct as Constituting Cruelty a Ground for Divorce

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Domestic Relations--False Charge of Lewd and Lascivious Conduct as Constituting Cruelty a Ground for Divorce

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