Cummings v. Cummings

• Decision Date: 23 March 1909
• Citation: 117 S.W. 289,133 Ky. 1
• Parties: CUMMINGS v. CUMMINGS.
• Court: Kentucky Court of Appeals

117 S.W. 289

133 Ky. 1

CUMMINGS v. CUMMINGS.

Court of Appeals of Kentucky.

March 23, 1909

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

"To be officially reported."

Action by Florence P. Cummings against Orville Cummings. From a judgment dismissing the petition, plaintiff appeals. Reversed and remanded.

Oscar H. Roetken, for appellant.

HOBSON J.

Florence Piercy Cummings and Orville P. Cummings were married on August 29, 1905. They lived together as husband and wife until November 20, 1906. On March 6, 1908, she brought this suit against him for divorce in the Kenton circuit court alleging that without fault on her part he had abandoned her and that the abandonment had continued for more than one year last past. Proof was taken, and on final hearing the circuit court dismissed her petition on the ground, as shown by his opinion, that she was not a resident of the state of Kentucky within the meaning of the statute. From this judgment she appeals.

The proof taken on her behalf establishes the abandonment as charged, and the only question we deem it necessary to consider is whether she was a resident of Kenton county, and had been for a year last past, when she filed her petition. She and her husband during their whole married life lived at Covington, and he continued to reside there after their separation. She, being without means of support, secured a situation at Columbus, Ohio, through friends in Covington and has since been working there, although she has returned to Covington several times temporarily. Her going to Columbus was simply because she secured employment there in a chemical laboratory. She is only there for the purpose of making a living, and always speaks of Covington as her home. She has acquired no domicile there, and the suit was brought in the county in Kentucky in which alone she has had her home. The case seems to be upon all fours with Boreing v Boreing, 114 Ky. 522, 71 S.W. 431. In that case the court said: "We do not think that appellant lost her residence in Kentucky by the fact that, in order to maintain herself, she left the state. She was still the wife of appellee, and his residence was her residence, and continued to be so during all of the time that she was absent. The separation commenced in Kentucky, and, if it be necessary, in order to obtain a divorce on the grounds relied upon in this action, that her home should have been in...