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Cooper v. Cooper

March 21, 1952

COOPER
v.
COOPER



Combs, J., not sitting.

Cullen

CULLEN, Commissioner. On June 8, 1944 Claude V. Cooper filed suit, in Florida, seeking a divorce from his wife on the grounds of cruel and inhuman treatment. On June 16, 1944, Mrs. Cooper filed suit, in the Perry Circuit Court in Kentucky, seeking permanent alimony from her husband and asking that a deed she had executed to him be set aside. Each party entered a personal appearance in the other's action.

On May 6, 1946, judgment was entered by the Florida court, granting Mr. Cooper an absolute divorce. On September 30, 1948, a judgment was entered in the Perry Circuit Court dismissing Mrs. Cooper's action on the ground that the Florida judgment constituted a bar to her right to receive alimony. On Mrs. Cooper's appeal, this Court reversed the judgment, holding that the Florida judgment did not preclude Mrs. Cooper from recovering alimony in her Kentucky action. Cooper v. Cooper, 314 Ky. 413, 234 S.W.2d 658. We also held that the circuit court should have considered and ruled on the question of setting aside the deed. Our mandate was that the court rule on the deed question, and 'hear proof as to the question of alimony.'

Upon the case being remanded, proof was taken by depositions, directed mainly to the facts concerning the financial conditions of the husband and wife, and the amount of alimony that should be allowed. This new proof touched some on the question of the fault of each party in the breaking up of the marriage, but the parties depended for the most part, concerning the question of fault, on depositions taken for use in the Florida action, copies of which had been filed in the Kentucky action before the first appeal was taken.

Judgment was entered granting Mrs. Cooper permanent alimony in the amount of $125,000, and setting aside the deed by which Mrs. Cooper had conveyed the family home in Hazard to her husband. For the purpose of securing the alimony award, the judgment further directed that Mr. Cooper turn over to the master commissioner, for sale, certain stock in the Peoples Bank of Hazard, and that the bank pay over to Mrs. Cooper some $24,600 in cash representing accumulated dividends on the bank stock, which had been attached in the action.

The case is now before us on Mrs. Cooper's appeal from the latter judgment. The main issues are whether Mrs. Cooper is entitled to alimony, and if so, the amount thereof.

The appellant seeks to argue again the question of whether the Florida divorce judgment barred Mrs. Cooper's right to claim alimony, but that question was settled on the first appeal and will not be again considered.

Concerning the question of fault, Mr. Cooper contends, first, that the only evidence of any fault on his part is that set forth in the depositions taken on behalf of Mrs. Cooper for use in the Florida action, copies of which were filed in the Kentucky action, and that these depositions were not admissible because they were not properly authenticated. It appears that the parties stipulated that 'properly authenticated' copies of the Florida depositions taken on behalf of either party could be filed and treated as evidence in the Kentucky action. Mr. Cooper construes the stipulation as requiring technical authentication as provided in KRS 422.040 for court records of other states. We think the parties were concerned only with authenticity. Mrs. Cooper's depositions were certified by the officers who took them, in accordance with the requirements both of the Florida statutes and our Code of Civil Procedure, and there is no contention that the depositions were not authentic. Under these circumstances the court did not err in receiving the depositions as evidence.

Mr. Cooper strongly urges that, even admitting the depositions on behalf of Mrs. Cooper, there is little or no competent evidence to establish any fault on his part, and there is ample evidence to support the grounds of cruel and inhuman treatment by Mrs. Cooper, on which the Florida court granted him a divorce. We will briefly review the evidence on this question.

The parties were married in 1921, and lived together in Hazard until 1941. They had three children, two sons and a daughter, who at the time of the separation were in their late teens. Reducing the evidence to the essentials, it appears that Mrs. Cooper, at around the age of 40, entered into a prolonged and severe menopause period. She became irritable, quarrelsome, suspicious, nagging, and highly nervous and excitable. She suffered an extreme emotional disturbance, which required periods of hospitalization, and she frequently used sedatives or 'nerve medicine.' Unquestionably, her condition made life somewhat burdensome for her husband, and interfered with his peace and happiness. However, instead of bearing his burden with patience and kind understanding, he 'took up' with another woman and sought by various methods an escape from his domestic problems. He went to Florida and established a home in which the 'other woman' lived as his housekeeper, and after his divorce he married her.

Under this evidence, while there may have been some justification for Mr. Cooper's seeking a separate abode, we can find no basis for a holding that Mrs. Cooper, by her conduct, abrogated her husband's duty to provide support for her according to his ability and estate. While, admittedly, she may have been in some degree at fault, her physiological condition is an extenuating circumstance, and her failure to meet the standards required of a wife in good health cannot furnish the basis for depriving her of all her rights under the marriage contract.

Concerning the amount of alimony, there are a number of factors to be considered. It appears that Mrs. Cooper did not contribute, through her industry or business acumen, in the accumulation of the fairly substantial estate owned by her husband. The amount of his estate, according to his testimony, is around $150,000, while the wife's evidence places the value at $300,000. The estate consists in the main of stocks and bonds.

At the time of the separation, Mrs. Cooper had no property or estate of her own. However, after the parties had separated, Mr. Cooper turned over to her some stock in the Home Insurance Agency, which he claims had a value of $50,000, and it seems proper to consider this in determining his liability for alimony. Mr. Cooper and a brother of Mrs. Cooper each owned one-half of the stock of the insurance agency corporation, and there is evidence that in 1941 the corporation made a net profit of $18,000. Mr. Cooper, up until June 1944, drew a monthly sum of $150 from the corporation, but after he went to Florida Mrs. Cooper's brother refused to allow him to draw any further funds from the corporation, and Mr. Cooper then turned the stock over to his wife. The evidence is that the brother then established an insurance agency in his individual capacity and took over, as an individual, the renewals and other insurance business of the corporation, thus rendering the corporation stock valueless.

If the stock had a substantial value at the time it was turned over to Mrs. Cooper, which appears to be true, and it thereafter became valueless because Mrs. Cooper's brother, as the other stockholder, appropriated the business to his individual use, then Mrs. Cooper's remedy is against her brother, and Mr. ...


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