Calhoun v. Peek

• Decision Date: 29 September 1967
• Citation: 419 S.W.2d 152
• Parties: Gary CALHOUN, Petitioner, v. Honorable Richard H. PEEK, Judge Calloway Circuit Court, Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 152

419 S.W.2d 152

Gary CALHOUN, Petitioner, v. Honorable Richard H. PEEK, Judge Calloway Circuit Court, Respondent.

Court of Appeals of Kentucky.

Sept. 29, 1967.

Ben B. Wright, Hopkinsville, for petitioner.

Hughes & Gregory, Murray, for respondent.

DAVIS, Commissioner.

Gary Calhoun invokes the original jurisdiction of this court pursuant to Kentucky Constitution, Section 110, seeking an order prohibiting the Judge of the Calloway Circuit Court from proceeding with the trial of a divorce action instituted in that court against Gary Calhoun by June Calhoun, his wife.

Petitioner asserts that Calloway County is not the county where his wife 'usually resides,' and that Trigg County is the place where she usually resides and is, therefore, the proper county in which this divorce action must be brought. KRS 452.470.

After a hearing on petitioner's motion to dismiss the divorce action, the respondent judge found that venue lies in Calloway County and denied petitioner's motion to dismiss the action. In the order denying the motion to dismiss for lack of venue, the respondent judge used the following language, upon which the petitioner relies heavily in this proceeding:

'It appearing to the court that the plaintiff June Calhoun has removed herself from Trigg County, Kentucky with the intention of becoming a resident of Calloway County, Kentucky, and that the latter named county was her usual place of residence at the time of the bringing of the action herein, therefore

'IT IS CONSIDERED ORDER (sic) AND ADJUDGED that the defendant's motion to dismiss for lack of venue in the Calloway Circuit Court be and the same is hereby overruled; provided however, in overruling said motion the court expressly states that this order will show that the court takes notice that if step five in the Sebastian case (Subastian vs. Turner 320 S.W. (2) 794 (1959)) means totally and completely abandoning the county literally that the order herein should be set aside * * *; said step five in the Sebastion vs. Turner case, wherein the following language is used:

'The evidence must show that she has actually and completely abandoned her former residence.'

'This court being of the opinion that if the Court of Appeals meant what they apparently said, in that case, viz: that total and complete abandonment of former residence in which they live, then it is the opinion of the court that said plaintiff has not done that.'

The record reflects that Gary and June Calhoun were married in 1956 and have been residents of Trigg County since the time of their marriage; they have two sons aged, respectively, ten and eight, when this action was filed. The Calhouns operate two retail grocery stores in Cadiz and own the real estate on which one of the stores is located. In February, 1967, the Calhouns separated. Mrs. Calhoun left the Cadiz home and took the children with her to Wichita, Kansas, for a week and then returned to Cadiz to the home of her mother in that community, where she stayed approximately ten days. Mrs. Calhoun next rented and moved, with her children, to a furnished house on Line Street in Cadiz about the first of March, 1967. The children continued to attend the public school in Cadiz.

About April 1, 1967, Mrs. Calhoun went to Murray in Calloway County with her children to an apartment which she rented from her father who lives in Murray. About a week after she had gone to Murray, Mrs. Calhoun filed the present suit. It was shown the Mrs. Calhoun continued to pay rent on the Line Street property in Cadiz and that on some occasions she and the children spent the night there after she had rented quarters in Murray. It is to be noted that Mrs. Calhoun...