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Attorney(S)

Edward C. O'Rear and H. Reid Prewitt for appellant. Harry B. Miller, Fennell Tucker, Samuel M. Rosenstein, and Robert Moss for appellees.

Judges

OPINION OF THE COURT BY VAN SANT, COMMISSIONER

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Smart Summary

Summary of Opinion: Clay v. Clay et al.

Factual and Procedural Background

This action was instituted by William C. Clay, Jr. (appellant), who sought a divorce from his wife, Elizabeth E. Clay (appellee), and custody of their infant daughter. Mrs. Clay filed a counterclaim seeking a divorce, alimony, custody of the child, and maintenance for the child. The Chancellor granted an absolute divorce to appellant; denied alimony to appellee; awarded alternate weekly custody of the child to each party; decreed that appellant should pay appellee $50 bi-monthly for the child's support while the child was in the mother's custody; and awarded appellee's attorneys $1,500 to be taxed as costs against appellant.

Appellant appealed from the portions of the judgment denying him exclusive custody of the child and allowing more than $500 to appellee's attorneys. Mrs. Clay cross-appealed from denial of alimony and denial of exclusive custody. Mrs. Clay's attorneys cross-appealed from the judgment denying them more than $1,500 for their services. A motion to dismiss the cross-appeal was passed to the merits and overruled.

Legal Issues Presented

Whether the Chancellor's grant of an absolute divorce was proper.
Whether appellee (Mrs. Clay) was entitled to an award of alimony and, if so, in what amount.
Which parent should be awarded custody of the infant and on what schedule.
Whether the Chancellor's allowance of $1,500 to appellee's attorneys was excessive or should be disturbed.

Arguments of the Parties

Appellant's Arguments

Sought an absolute divorce and exclusive custody of the child.
Asserted that appellee engaged in misconduct (pointing to incidents such as wearing a play suit to a badminton party and occasions when she had more than one drink of intoxicants) and argued such conduct rendered her unfit for custody.
Evidence indicates appellant himself furnished the liquor on the occasions he complains of.

Appellee's (Mrs. Clay) Position

Counterclaimed for a divorce, alimony, custody of the child, and maintenance for the child.

Appellee's Attorneys' Position

Sought allowance of attorneys' fees for services rendered; ultimately awarded $1,500 and cross-appealed seeking more than that amount.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
KRS 21.060	Authority regarding appellate review of divorce decrees.	Used to state that this Court may not reverse a judgment granting a divorce.
Hanks v. Hanks, 282 Ky. 236, 138 S.W.2d 362	Case law supporting limitations on reversing divorce grants.	Applied alongside KRS 21.060 to explain the court will not reverse a divorce decree.
Winfrey v. Winfrey, 286 Ky. 245, 150 S.W.2d 689	Authority that appellate courts may review evidence concerning alimony, custody, and attorney fees.	Relied upon to justify review of the Chancellor's awards and refusals as to alimony, custody of children, and attorney fees.

Court's Reasoning and Analysis

The court reviewed the entire record (noting the evidence consisted of more than 1,200 typewritten pages) but adhered to a policy of not detailing evidence in the opinion. After careful review, the court concluded that neither party was without fault and therefore neither was entitled to an absolute divorce. The court described an enduring incompatibility of personalities that manifested early in the marriage and persisted, rendering any chance for marital happiness hopeless.

The court considered specific incidents relied upon by appellant (wearing a play suit to a badminton party; several occasions when appellee drank more than one drink) and observed that appellant had accompanied appellee to the party and had furnished the liquor on the drinking occasions he complained of. The Chancellor had not been convinced that appellee was morally unfit to have custody of the child, and the Court shared that view.

Because both parties were considered fit for custody, the Court concluded the proper decree should have been a divorce from bed and board rather than an absolute divorce. Consequently, the Court held an allowance for alimony was appropriate and determined, based on appellant's testimony about his expenditures and income, that alimony in the amount of $100 per month should have been awarded, with the court retaining the power to modify this award upon change in conditions.

On custody, the Court found the child's best interests served by awarding custody to the mother from September 1 through May 30 of each year, and to the father from June 1 through August 31, with the Chancellor to revise dates if necessary when the child commences school so that the mother's nine-month period will include the entire school year. The father was ordered to transport the child at the designated times. The bi-monthly child-maintenance award of $50 while the child is with the mother was left undisturbed because it was not challenged as excessive.

Regarding attorneys' fees, although the $1,500 allowance at first glance seemed liberal, the record showed appellee's attorneys had incurred personal expense amounting to nearly half that sum and had performed extraordinary services (resisting interlocutory motions and attending numerous depositions). On that basis, the Court declined to disturb the Chancellor's allowance.

Holding and Implications

Affirmed in part; reversed in part.

Holding (direct effects on the parties):

The portion of the judgment appealed by appellant and the attorneys' cross-appeal were affirmed.
The cross-appeal of Mrs. Clay was sustained: the Court reversed the denial of alimony and modified the decree by holding that the proper decree was a divorce from bed and board rather than an absolute divorce. The Court directed that a new judgment be entered conforming with its opinion.
Alimony was awarded to appellee in the sum of $100 per month, subject to modification for changes in conditions.
Custody was rearranged: mother to have custody from September 1 through May 30 (to be adjusted to include the school year if necessary), father to have custody from June 1 through August 31; father to transport the child at the specified times.
The bi-monthly child maintenance award ($50 while the child is with the mother) remains in effect.
The award of $1,500 to appellee's attorneys was upheld.

Implications: The decision alters the nature of the divorce decree (to one from bed and board), awards alimony, and establishes a custody schedule and transportation duty; the attorneys' fee award stands. The opinion does not purport to establish new legal precedent beyond the application of existing statute and case law cited; it follows the court's stated policy against detailing evidentiary recitations in the opinion.

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Clay v. Clay et al.

OPINION OF THE COURT BY VAN SANT, COMMISSIONER

Affirming in part, reversing in part.

The motion to dismiss the cross-appeal, having been passed to the merits of the case, now is overruled.

The action was instituted by appellant, William C. Clay, Jr., who sought a divorce from appellee, Elizabeth E. Clay, and the custody of their infant daughter. In her counterclaim, Mrs. Clay sought a divorce, alimony, custody of and maintenance for the child. The Chancellor granted the divorce to appellant; denied alimony to appellee; awarded alternate weekly custody of the child to each of the parties; and decreed that appellant should pay appellee $50 bi-monthly for the support of the infant while in the mother's custody. Appellee's attorneys were awarded $1,500 for their services, to be taxed as, costs against appellant.

Appellant has appealed from so much of the judgment as denied him exclusive custody of the child, and as allowed more than $500 to appellee's attorneys. Mrs. Clay has cross-appealed from so much of the judgment as denied her alimony and the exclusive custody of the child. Mrs. Clay's attorneys have cross-appealed from the judgment denying them more than $1,500 for their services in the action.

This Court may not reverse a judgment granting a divorce. KRS 21.060; Hanks v. Hanks, 282 Ky. 236, 138 S.W.2d 362. But it may review the evidence to determine the propriety of the judgment in other respects, such as awarding or refusing to award alimony, custody of children, and attorney fees. Winfrey v. Winfrey, 286 Ky. 245, 150 S.W.2d 689.

In recent years, we have adhered more strictly to the policy of refusing to detail evidence in a written opinion, where, as here, its recitation will not benefit the Bar or future litigants by establishing precedents considered to be helpful as a guide in subsequent litigations. We believe this to be a case in which this policy should be adopted; especially since appellant, in his brief in this Court, commended the Chancellor's "admirable wisdom" in sealing the record from the public gaze, and has requested us to omit a review of certain portions of the evidence.

In granting the divorce, the Chancellor said: "* * * as Special Judge in this action I am hardly convinced that either the plaintiff or defendant is necessarily entitled to a divorce, * * *"

After carefully reviewing all of the evidence, which consists of more than twelve hundred typewritten pages, we are firmly convinced that neither party was entitled to an absolute divorce. We have arrived at this decision because we have concluded that neither of the parties is without fault in respect to the charges made against the other. Appellant is of a studious temperament, whilst appellee enjoys a more active association with her friends. The incompatibility of their personalities manifested itself on their honeymoon. This difference in likes and dislikes persisted, neither apparently willing to indulge the other, until whatever chance for happiness they otherwise might have had now appears to be hopeless. Appellant complains of his wife's wearing a play suit to a badminton party; but he escorted her to the party, knowing that she was thus attired; however, if this were not true, we see nothing immoral about such an attire; it is a customary habit at such affairs. He complains of her conduct on two or three occasions, which he attributes to the fact that she took more than one drink of an intoxicating beverage. He testified that she could not successfully withstand the influence of intoxicants when she indulged in more than one "drink." These occasions were at neighborhood parties, where the hosts did not serve the guests, but each guest brought the drinks he expected to consume. On each of these occasions, appellant furnished appellee the liquor he now complains she drank, knowing, if it is true, that she was unable to withstand the effect of intoxicants. He points to this conduct as proof of his charge that appellee is unfit to have the custody of their child. But all the evidence concerning the occasions complained of failed to convince the Chancellor, and fails to convince us, that appellee is morally unfit to have the custody of her child.

Being of this mind, we are of the opinion that the decree should have been limited to a divorce from bed and board. It follows that an allowance for alimony should have been made, the amount of which is always difficult to determine. Mr. Clay testified that he has been maintaining his wife, daughter, and himself, upon a scale calling for an expenditure of approximately $5,000 per year; and that his net worth at the time of giving his deposition was approximately $11,000. He testified that, in the year 1943, his gross income was $5440.77, from which he deducted contributions in the amount of $183.35, taxes in the amount of $16.64, losses in the amount of $65.50, and other deductions (unexplained) in the amount of $62.02; leaving a net income of $5115.26. He estimated his income tax payable to the United States Government for the year 1944 upon the basis of his income in the year 1943. From this evidence, we conclude that the Chancellor should have entered judgment in favor of appellee for alimony in the sum of $100 per month; but retaining control of this part of the judgment for modification, in the event of a change in condition of the parties.

Since both appellant and appellee are fit persons to have control of the child, we are of the opinion that the best interests of the child will be served by awarding appellee her custody from. September 1 of each year until, and including, May 30 of the following; and appellant should have her custody from June I until, and including, August 31 of each year. When the child commences to attend school, the Chancellor will revise the dates if necessary, so as to include the entire school year in the nine months' period the mother shall have the custody. It shall be the duty of appellant to call for his daughter at her mother's home, and deliver her back, at the times indicated above. It is not contended that the bi-monthly award for the maintenance of the child is excessive; therefore, the decree in this respect will not be disturbed.

The award of $1,500 to appellee's attorneys at first blush would seem to be extremely liberal. But the record discloses that they have incurred personal expense amounting to nearly half the sum in preparing appellee's side of the case; and they have been required to perform extraordinary services in resisting interlocutory motions, and in attending the taking of multitudinous depositions. That being true, we are not disposed to disturb the Chancellor's allowance to the attorneys of record.

On the original appeal and the cross-appeal of the attorneys for Mrs. Clay, the judgment is affirmed; on the cross-appeal of Mrs. Clay, the judgment is reversed, with directions that it be set aside and another be entered in conformity with this opinion.

CLAY v. CLAY