Hensley v. Hensley
| Decision Date | 06 May 1941 |
| Citation | 286 Ky. 378 |
| Parties | Hensley v. Hensley. |
| Court | United States State Supreme Court — District of Kentucky |
2. Constitutional Law. — Under "privileges and immunities" clause of Constitution of United States, the Legislature of a state cannot deny the citizens of another state the use of its courts in enforcement of privileges and immunities which owe their existence to the Constitution and laws of the federal government in its national character, but the privileges and immunities thus guaranteed do not include those fundamental privileges and immunities solely inherent in state citizenship (U.S.C.A. Constitution, art. 4, sec. 2; Amend. 14, sec. 1).
3. Constitutional Law. — Marriage, although the result of contract, upon consummation becomes a status deeply affecting the public welfare as well as the parties thereto, and hence, as respects applicability of privileges and immunities clause of United States Constitution, marriage is recognized as a right incident to state citizenship (U.S.C.A. Constitution, art. 4, sec. 2; Amend. 14, sec. 1).
4. Marriage. — A marriage may be consummated and maintained only by consent of the state, which assumes jurisdiction of the parties and in the manner prescribed by the law of such state.
5. Constitutional Law. — The marital relationship can be dissolved only in the manner and under the conditions prescribed by the law of the state having jurisdiction, and hence divorce is a privilege solely inherent in state citizenship and not a privilege or immunity owing its existence to Constitution and laws of the federal government in its national character within meaning of "privileges and immunities" clause of the United States Constitution (U.S.C.A. Constitution, art. 4, sec. 2; Amend. 14, sec. 1).
6. Constitutional Law; Divorce. — The statute providing that no divorce action shall be brought by one who has not been a continuous resident of the state for a year next preceding commencement of the action does not violate the provisions of United States Constitution prohibiting any state from abridging the privileges or immunities of citizens of the United States and guaranteeing to the citizens of each state all privileges and immunities of citizens in the several states (Ky. Stats., sec. 2120; U.S. C.A. Constitution, art. 4, sec. 2; Amend. 14, sec. 1).
7. Divorce. — A petition for divorce filed in Kentucky court, which alleged that petitioner was a citizen and resident of Knoxville, Tenn., showed on its face that petitioner did not have legal capacity to sue under statute, providing that no divorce action shall be brought by one who has not been a continuous resident of state for a year next before commencement of action, and hence was subject to special demurrer on such ground (Ky. Stats., sec. 2120).
Appeal from Knox Circuit Court.
Hiram H. Owens for appellant.
V.A. Jordan for appellee.
Before J.D. Harkins, Special Judge.
Affirming.
The only question involved on this appeal is the constitutionality of that part of Section 2120, Kentucky Statutes, which provides that in a suit for divorce "no action shall be brought by one who has not been a continuous resident of this state for a year next before its institution."
In addition to the grounds for divorce, appellant alleged in his petition that he was a citizen and resident of Knoxville, Tennessee. A special demurrer objecting to the petition because the plaintiff did not have legal capacity to sue was sustained by the court and judgment was entered dismissing the petition. Appellant contends that the above quoted section of the statute is in violation of Article 4, Section 2, and Amendment 14, Section 1, of the Constitution of the United States.
Article 4, Section 2, reads: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."
Amendment 14, Section 1, among other things, provides:
Without referring to the Constitution of the United States, this Court has held that a plaintiff in a divorce action must allege and prove an actual residence in this state for one year next before commencement of the action in accordance with the provisions of the statute. Tipton v. Tipton, 87 Ky. 243, 8 S.W. 440, 10 Ky. Law Rep. 252; Perzel v. Perzel, 91 Ky. 634, 15 S.W. 658, 12 Ky. Law Rep. 879; George v. George, 190 Ky. 706, 228 S.W. 408, 39 A.L.R. 700; Workman v. Workman, 191 Ky. 124, 229 S.W. 379.
Whilst it is true that the Legislature of a state cannot deny the...
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