Opinion
May 22, 1953.
Appeal from the Circuit Court, Anderson County, Coleman Wright, J.
Ephraim K. Lawrence, Jr., Louisville, for appellant.
Walter Patrick, Lawrenceburg, for appellee.
This is an appeal involving a judgment granting the husband a divorce, the custody of two small daughters, and refusing alimony to the wife.
The parties were married on May 31, 1947, when she was fifteen years of age and he twenty-one. They separated on December 29, 1951, and he filed his action for divorce on January 2, 1952, on the ground of cruelty, and his wife promptly filed an answer denying the charges and counterclaiming for divorce. As is usual in contested divorce cases, the reputation of each party was smeared by the other. No good purpose would be served either to the litigants or to the bar for us to recount the testimony here. Suffice it to say, there was sufficient evidence to justify granting a divorce to the husband and refusing to grant alimony to the wife. The proof was taken by deposition and not in open court. The testimony discloses that the mother of the appellee and his childless, married sister are both willing and able to care for the two small children. While we ordinarily do not approve a separation of such young children from their mother, we believe the chancellor was justified in the present case in awarding their custody to the father. It was for the best interest of the children.
The chancellor is directed to assess a reasonable fee for the wife's attorney as part of the costs against the husband, KRS 453.120, since it appears that the wife has no estate of her own.
Judgment is affirmed in part and reversed in part.