Hayes v. Blackwell, Judge

• Decision Date: 13 December 1946
• Citation: 303 Ky. 548
• Parties: Hayes v. Blackwell, Judge.
• Court: United States State Supreme Court — District of Kentucky

303 Ky. 548

Hayes v. Blackwell, Judge.

Court of Appeals of Kentucky.

December 13, 1946.

1. Divorce. — That defendant wife intended to abandon her residence in county where divorce action was brought did not deprive circuit court of county of jurisdiction until wife actually removed herself from the county.

2. Domicile. — "Abandonment" consists of a bona fide intent to abandon, followed by the actual act of moving away from the place of former residence and acquiring a new one elsewhere.

3. Divorce. — Evidence sustained finding that defendant wife had not abandoned her residence in the county in which divorce action was brought by husband, and judge of circuit court of that county had jurisdiction.

O.W. Jenkins and Hardin H. Herr for petitioner.

George S. Clay for respondent Blackwell.

OPINION OF THE COURT BY JUDGE THOMAS.

Dismissing petition.

This is an original action filed in this court by petitioner, Susie Hayes, against Judge Marlin L. Blackwell, Judge of the Henderson circuit court, pursuant to the provisions of section 110 of our Constitution, seeking to prohibit him as such judge from proceeding to try, hear and dispose of a divorce action pending in the Henderson circuit court wherein petitioner's husband sought a divorce from her.

The grounds for the prohibitory writ herein sought was and is, that respondent has no jurisdiction of the pending divorce action before him in the Henderson circuit court, because petitioner at the time of the filing of that action had abandoned her residence in Henderson County and had acquired one in Jefferson County, which, if true, would deprive respondent of jurisdiction to try and hear the divorce action pending in his court.

Upon the initial hearing for a temporary writ made at the time of filing the petition in this court on September 12, 1946, we entered an order granting a temporary writ prohibiting respondent from taking any steps or making any order in the divorce action pending before him "until the further orders of this court." That order was made because the members of this court who heard the motion for the temporary writ concluded that a permanent writ should not be issued without this court having before it the testimony heard by respondent when he overruled petitioner's plea in abatement filed by her in that case, which was bottomed on the alleged fact of her having abandoned Henderson County as the place of her residence at the time his divorce action against her was filed, which was on January 30, 1946.

Accompanying the petition filed in this court was a...