Opinion
Decided March 13, 1928.
Appeal from Boyd Circuit Court.
WILSON ROBINSON for appellant.
JOHN T. DIEDERICH and JOHN P. BRADY for appellee.
Reversing
By judgment of the Boyd circuit court entered at its February term, 1927, appellant, Grace Howard, was divorced absolutely from appellee, Charles Howard, and was awarded alimony in the sum of $1,000 payable either in a lump sum or at the rate of $40 per month. The judgment further provided that, if appellant should marry again before the $1,000 was paid, then appellee should pay to her for the support of their child the sum of $20 per month until the child is 16 years of age. She has prosecuted this appeal from that judgment upon the theory that the amount allowed is not sufficient.
This court's consideration of the evidence leads to the conclusion that the chancellor properly concluded and adjudged that plaintiff was entitled to the divorce sought upon either of the grounds alleged in her petition; that is, abandonment or cruel and inhuman treatment. It would be difficult to find a state of facts under which the husband could display less regard for his wife and less appreciation of the obligations of the marital relation or more indifference and cruelty to her than this record discloses. These facts, of course, are material only in so far as they relate to the question whether alimony was properly allowed.
The record discloses that appellee is 31 years of age, receives a salary of $148 per month, and has no one else dependent upon him. Under the judgment appealed from, by paying less than one-third of his salary for a period of slightly more than 2 years, he will be relieved entirely of all of his obligations growing out of the marriage contracted between him and appellant and of all obligation to support his infant daughter now only 3 years of age. Deserted by her husband and under compulsion of the necessity to earn a living for herself and her infant daughter, appellant has taken up teaching as a profession and is earning $97.50 per month from that source. The cost of having an infant daughter cared for while engaged in her duties materially reduces that amount. To continue to teach she is also required to spend a considerable portion of her earnings each summer in taking additional training for her work. Neither appellant nor appellee is shown to possess any property. This court's consideration of the facts and circumstances surrounding the parties leads to the conclusion that the chancellor erred in awarding alimony in a lump sum. Instead of a lump sum allowance, appellee should have been compelled to pay to appellant as alimony and for the support of their infant child the sum of $60 per month until the further orders of the court. The judgment in this particular will be subject to change at any time upon a proper showing that a change of the status of the parties authorizes it.
Reversed and remanded for a judgment in conformity herewith.