Burke v. Tartar

• Decision Date: 06 October 1961
• Citation: Burke v. Tartar, 350 S.W.2d 146 (Ky. 1961)
• Parties: Lucille Eaves BURKE, Petitioner, v. Hon. R. C. TARTAR, Judge, Pulaski Circuit Court, Respondent.
• Court: Supreme Court of Kentucky

Page 146

350 S.W.2d 146

Lucille Eaves BURKE, Petitioner, v.Hon. R. C. TARTAR, Judge, Pulaski Circuit Court, Respondent.

Court of Appeals of Kentucky.

Oct. 6, 1961.

F. Selby Hurst, Lexington, for petitioner.

R. C. Tartar, Somerset, pro se.

PALMORE, Judge.

By an original proceeding in this courtLucille Eaves Burke seeks an order prohibiting Hon. R. C. Tartar, Judge of the Pulaski Circuit Court, from proceeding to adjudicate a divorce action brought against her in that court by Allen M. Burke.Her claim is that under KRS 452.470, which provides that a divorce action must be brought in the county where the wife 'usually resides' if she has an actual residence in this state, the Pulaski Circuit Court does not have jurisdiction.

It appears that on June 22, 1961, the Burkes were living together at Somerset, in Pulaski County.At about 2:30 A.M. on June 23she gathered up her children and belongings and left home.Some time prior to 9:00 A.M. of the same day she left Somerset by automobile and drove directly to Lexington, in Fayette County, where she forthwith rented and moved into an apartment.Later on during that day she filed a divorce suit against her husband in the Fayette Circuit Court.Meanwhile, however, at 9:30 A.M he had filed a similar suit in the Pulaski Circuit Court against her.She claims that when this latter action was filed she had abandoned Pulaski County with the intention of taking up permanent residence in Fayette County.

The affidavits submitted to the Pulaski Circuit Court in support of Mrs. Burke's motion to dismiss on the ground of improper venue do not show whether she had reached Fayette County or, for that matter, had cleared the limits of Pulaski County at 9:30 A.M. on June 23.The motion was overruled and this proceeding followed.

If either of the parties is domiciled in this state and the defendant is before the court by due process, the venue of a divorce action brought within the state is not jurisdictional in the sense that it affects the authority of the court to hear and determine the cause.Cf.Johnson v. Johnson, 1877, 12 Bush 485, 75 Ky. 485;Tudor v. Tudor, 1897, 101 Ky. 530, 41 S.W. 768, 19 Ky.Law.Rep. 747;Kenmont Coal Co. v. Fisher, Ky.1953, 259 S.W.2d 480, 482;17 Am.Jur. 476(Divorce and Separation, Sec. 302);Restatement, Conflict of Laws(1948 Supp.), Sec. 113.See alsoStevens, Venue Reform in Kentucky, 40 Ky.L.J. 58(1951).Otherwise, it could not be held (as it often has been) that venue in such actions may be waived, since jurisdiction, except over the person, connot be conferred by waiver or consent.Thompson v. Com., 1937, 266 Ky. 529, 99 S.W.2d 705.Thus we do not have before us a truly jurisdictional question.

Uniformly, however, this court has exercised its discretionary powers under Constitution Sec. 110 to consider the merits of venue questions in divorce actions.SeeWhitaker v. Bradley, Ky.349 S.W.2d 831;Sebastian v. Turner, Ky.1959, 320 S.W.2d 794;Stewart v. Yager, Ky.1954, 272 S.W.2d 674;Weintraub v. Murphy, Ky.1951, 240 S.W.2d 594;Brumfield v. Baxter, 1948, 307 Ky. 316, 210 S.W.2d 972;Hayes v. Blackwell, 1946, 303 Ky. 548, 198 S.W.2d 203;Thomas v. Newell, 1939, 277 Ky. 712, 127 S.W.2d 610.In such cases the remedy of prohibition is administratively appropriate in that it tends to prevent a disorderly race in two different courts to an unappealable judgment.

It is established that on June 23, 1961, Mrs. Burke began the day as a usual resident of Pulaski County.During the day she changed her place of usual residence to Fayette County.Under fundamental principles, Pulaski County remained her place of usual residence during the period of transfer and until she established her residence in Fayette County.Boyd's Ex'r v. Com., 1912, 149 Ky. 764, 149 S.W. 1022, 42 L.R.A.,N.S., 580, Ann.Cas.1914B, 481;Rudolph v. Wetherington'sAdm'r, 1918, 180 Ky. 271, 202 S.W. 652;17 Am.Jur. 464(Divorce and Separation, Sec. 289).Since Mrs. Burke made no showing that she was a resident of Fayette County at 9:30 A.M. when the action was commenced in ...