Williams v. Williams

JUDGE GEACE

dkliveked the opinion op the cotjbt.

This case is brought to this court by a petition by appellee, Emma Williams, for a rehearing of this cause on a judgment rendered by' the Superior Court of Kentucky on the 5th day of December, 1894, reversing a judgment in her favor rendered by the .Kenton Circuit Court on the 3d day of April, 1893, which court, proceeding by rule, required appellant, Norman Williams, to pay to said Emma Williams sixteen dollars and twenty-five cents per month for support of herself and two infant children, same having been on her petition in that court adjudged to her by decree of date, February 12, 1882, she being then the wife of said Norman Williams.

The chief objection and contention by appellant is that the same court by subsequent order of June 8, 1892, decreed a final separation between himself and said Emma as husband and wife, and in said final *399 decree made no ■ order for support or maintenance of the said Emma and her two children, the argument being that this latter judgment merged, and thus, rendered inoperative and void, the former orders recited herein. And this was the view of the Superior Court. This we think was error, and because thereof this petion for a rehearing is granted.

It is shown by the record that appellee’s original petition was filed in said court in December, 1891, and that in said petition she makes every allegation necessary to give her a divorce, if shown to be true on the trial — that is, the abandonment of herself and her two infant children by said Norman Williams without any fault on her part, failing and neglecting to make any provision for her or their support, her destitute condition, the tender years of her infant children, with the usual statutory averment as to residence in the State, &c., but not in that petition praying for a divorce, but only for some provision for her support and maintenance, as well as of her infant children. Summons being duly served and proof taken amply sustaining every allegation, the first judgment of 12th of February, 1892, before recited, was rendered, the court adjudging her the custody and care of the children, and fixing the amount to be paid by the husband at sixteen dollars and twenty-five cents per month, and by order reserving the cause on the docket for further orders. After this, and on the 25th of March, 1892 (no answer ever having been filed by defendant), plaintiff, Emma Williams, filed in said cause her amended petition, in which, reaffirming each and every allegation made in her original *400 petition, she prays tbe court to grant ber a divorce from said Norman Williams.

Summons was issued on tbis amended petition and served, but no answer filed, and on tbe 8tb of June, 1892, tbe court beard the case on this amended petition, granting plaintiff tbe divorce prayed for and still confiding to her the custody of tbe infant children, with tbe usual order restoring tbe property under tbe statute provided, and making no other or further order in reference to tbe previous allowance of sixteen dollars and twenty-five cents per month, as fixed in tbe order of February 12, 1892. It seems, to us that tbe legal effect of all tbis was to leave both orders in full force and effect, tbe latter one granting the divorce and tbe former one fixing tbe allowance for maintenance rendered by the same court ott tbe same petition (as amended) in tbe same cause and between tbe same parties, and on subjects whereof tbe chancellor bad jurisdiction. We can not see that one order in any way merges, annuls or sets aside, or destroys tbe other. It was competent for tbe court either by the original order to make tbe allowance for maintenance before tbe divorce was granted, or to en-graft same on tbe final order for divorce. But for tbe reasons indicated, we think it unnecessary that be should have done tbis.

He did not understand then nor subsequently when be entered tbe rule against said appellant to pay the sixteen dollars and twenty-five cents per month, that tbe one order revoked or annulled tbe other. He could not have forgotten nor so soon overlooked tbe previous order granting tbe maintenance, and both orders being *401 made in one and the same canse then pending, each order making appropriate provision lor the matter in hand, and both being within the jurisdiction of the chancellor, and both being amply supported by the evidence, we are at a loss to see any valid legal objection thereto.

The judgment of the lower court of April 8, 1893, on the rule against appellant, is affirmed.