Summary
In Kennedy v. Kennedy, 186 Ky. 549, 217 S.W. 891, 892 (1920), the court affirmed a partition decision, stating it did "not attach any importance whatever to the fact that the commissioners, whom [the court] presume[d] to be honorable discreet citizens, visited the home" of one of the parties and had dinner at his house.
Summary of this case from In re Estate of LoomerOpinion
No. 47/608.
12-03-1920
KENNEDY v. KENNEDY.
Harry C. Kramer and Louis B. Le Due, both of Camden, for petitioner. Edward West, of Camden, for defendant.
Petition for divorce by Evelyn F. Kennedy against Walter E. Kennedy. Decree for complainant.
Harry C. Kramer and Louis B. Le Due, both of Camden, for petitioner.
Edward West, of Camden, for defendant.
LEAMING, V. C. (orally). I think I shall decide this case now without taking it under advisement. In this case, like most divorce cases, there is a radical conflict in testimony, but it seems to me that the facts are so obvious that they can hardly be doubted. I am convinced that this case, like so many others that are coming before me from time to time, is a case in which the whole trouble between the husband and his wife is the result of too much mother-in-law. Why it is that husbands persist in having their wives live at the home of the husband's mother against the wish of the wife I cannot understand. It seems to me that it ought to be a matter of common information that in nine cases out of ten trouble results from it. I cannot believe that it is not a matter of ordinary knowledge that the home of a husband's mother is not a proper place for a wife under ordinary circumstances. It is possible, of course, that there exist in the world people who have never heard that trouble is likely to come from such surroundings, but I do not know who they can be. From the earliest period of my recollection it has been a matter of common information to me and to those around me.
Since I have been on the bench I have found that in almost every case where a son takes his wife to his mother's home and makes that the home of his wife, against the wife's protests,' trouble occurs. It is just as natural as the laws of nature. Whenever any friction occurs between a husband and his wife under such circumstances the mother-in-law naturally shields the son; it cannot be otherwise. The common adage is that blood is stronger than water, and a mother's affection for her son will naturally be stronger than her affection for her daughter-in-law, and when differences arise between the son and the daughter-in-law the mother will always naturally favor the son. Why should it be otherwise? He is her offspring; she has nursed him and nurtured him from childhood and possesses all of the affection which carries with it all of the prejudices of human nature. Everybody knows that the same thing will occur in the home of the wife's mother; in that home the wife's mother willnaturally side with the wife as against her son-in-law. The consequence is that a wife in the home of her mother-in-law feels discriminated against, feels isolated, discontented, with the result that sooner or later a separation is going to be caused between the two. There are cases, of course, where a mother-in-law becomes attached to a daughter-in-law, where her high sense of justice and fairness will overpower and override her affection for her son, for her own, and override natural prejudices. In those bright and extraordinary and exceptional cases harmony may prevail, but the very moment a husband discovers that his wife is not happy in the home of his mother that moment it becomes his bounden duty to take her elsewhere. If a wife does not wish to live in, and is not happy in, the home of her mother-in-law, a husband should exercise every effort within his power to make a home for her elsewhere, and if he does not under such circumstances it seems to me that he is reasonably chargeable with the consequences.
In this case Mrs. Kennedy, the petitioner in this suit, had left—deserted, we will call it—her husband twice because of trouble with her mother-in-law, and her husband knew it. He says, she says, and the mother-in-law says that on both of those two occasions her departure from her mother-in-law's home and her return to her own mother's home were the occasions of disagreements with the mother-in-law, and yet, notwithstanding that, for a second time, after a second departure, she was taken back by the husband to that same home and there she resided until the time of the final separation which, whatever may have happened at the moment, was admittedly occasioned by a row between the daughter-in-law and mother-in-law, and for a third time, whether obliged to do so or not, she left her home in consequence and as the result of another quarrel with her mother-in-law.
Now, can there be any doubt what the duty of the husband was in such circumstances? It seems to be that the conditions presented are absolutely free from doubt. Whether she was assaulted by her husband at that time or not matters little. The fact is that for a third time she fled from that home of the mother-in-law by reason of a quarrel with the mother-in-law. Now what was the husband's duty? Whether he struck her or whether he did not, and it seems to me the evidence almost demands belief that he did strike her—if he did not then surely her mother-in-law did, because the evidence is almost irresistible to the effect that her face was badly bruised and her clothes were badly torn—but whether there was an assault by the husband or not on that occasion the legal duty was so clearly cast upon the husband to make every possible effort on his part to get her back, or, rather, to get her and lake her to a home away from the mother-in-law, that any failure upon his part to perform or respond to that duty clearly constituted him the deserter. How could it be otherwise? Can there be any doubt that after a wife has for a third time left the home of her mother-in-law by reason of quarrels with the mother-in-law, and the husband has known about it each time, that the duty of the husband exists to go and get that wife and take her to some other home, make some other place for her to live, where she will not be obliged to come back to the head of a house from whom she has fled?
Mr. Kennedy's legal duty was to seek out his wife if it required searching night and day, which it did not. He could have found her if he had wanted to; unquestionably he could. It was his duty to seek her out and say to her:
"We can get along happily together, I know, if we live by ourselves. Now, we never have had a chance to try. Come with me. I will get you the best home that I can provide; I will do every thing that my finances will permit in the way of making you happy in that home. Come with me and I will make you happy."
That was his duty, and if he had done that can anybody doubt he could have gotten her? Of course he could. Certainly she would have gone with him. Even if it was true that he had struck her, as she says, she would have forgiven him in those circumstances and have gone with him to a new home. They would have been happy there, in my judgment. But instead of that he never has made one single effort, as I believe, to procure her return. lie says that over in Philadelphia, in front of the Ridgway House, when he saw her in company with another man of whom he was obviously jealous, he sought an opportunity to get her to return and the only reason he did not succeed in his purpose to persuade her to return to him was because of a row he had with the other man. Mr. Kennedy's aim on that occasion was not to seek to induce his wife to return to him. The occurrences on that occasion, and his neglect to seek her return on so many other occasions, forbid any such belief. He claims that his wife was not responsive; when he would see her on the street he says she would look away or cross over the street, and hence he was denied an opportunity; but we all know that if he had wanted to go to his wife and make to her any such an appeal as I have suggested it was his duty to do he would have found an opportunity, whether she looked up from the sidewalk when he met her or whether she continued to walk by with her eyes on the sidewalk or sought to cross over to the other side of the street. His opportunities to communicate with her by mail existed. He could have seen her just as often as he wanted to if he had tried, but he did not try. I think it is equally true that she did not try to communicate with him; she probably did not want to return to him. But theburden, the legal duty, rested upon him, by reason of the fact that the whole trouble arose from his wrongdoing in persisting in keeping his wife at the home of his mother after so many demonstrations that they could not live together harmoniously.
I will advise a decree of divorce on the ground of desertion, constructive desertion upon the part of Mr. Kennedy.
I will make no order touching alimony at this time. I do not think the evidence before me is adequate to adjudicate intelligently upon that subject. Nor will I make any order touching the custody of the child. An order already exists touching the custody of the child, and that gives privileges to Mrs. Kennedy for the possession of the child at certain periods. Until that order is disposed of or in some way revoked I think it should stand and be obeyed. If at any time before the final decree is signed counsel on both sides wish to present the matter of maintenance I will entertain such proofs. I would like to know what the earning capacity of the defendant is; I would like to make sure what has become of the government allowance; up to this time it seems Mrs. Kennedy has not received any part of that. She is entitled to a portion of her husband's earnings, a minor portion, since the husband has the burden of the support of the child. Mr. Kennedy says that the government allows one-fifth of the money which is coming to him for his wife. The ordinary rule would be to add to that one-fifth off the earning capacity of Mr. Kennedy; in other words, the entire receipts of the husband, so long as the husband has the expense of the support of the child, should be divided between him and his wife in the proportion of about one-fifth and four-fifths. Where there is no child the usual division is one-third and two-thirds; where the wife has the custody of the child then, of course, the percentage changes. I will advise a decree along those lines.
Mr. West: If the court please, counsel for the petitioner, Mr. Le Due and Col. Kramer, at the beginning of the case said that they would waive the order for alimony and custody of the child.
Mr. Le Due: I said for the purpose of our present appearance in court.
The Vice Chancellor: Well, it is not necessary, then, to make any adjudication touching those features of the case.