Hummeldorf v. Hummeldorf, 80-CA-1296-MR

• Citation: 616 S.W.2d 794
• Decision Date: 01 May 1981
• Docket Number: No. 80-CA-1296-MR,80-CA-1296-MR
• Parties: James L. HUMMELDORF, Appellant, v. Ida Margaret HUMMELDORF, Appellee.
• Court: Court of Appeals of Kentucky

Page 794

616 S.W.2d 794

James L. HUMMELDORF, Appellant, v. Ida Margaret HUMMELDORF, Appellee.

No. 80-CA-1296-MR

Court of Appeals of Kentucky.

May 1, 1981.

Willie Mathis, Jr., Stephen K. Dallas, Anthony W. Frohlich, Walton, for appellant.

Kurt A. Philipps, Covington, for appellee.

Before McDONALD, REYNOLDS and WINTERSHEIMER, JJ.

McDONALD, Judge:

At issue on this appeal is the constitutionality of K.R.S. 452.470, the divorce venue statute, which fixes venue in the home county of the wife. Specifically, the statute reads as follows An action for alimony or divorce must be brought in the county where the wife usually resides, if she has an actual residence in the state; if not, in the county of the husband's residence.

The appellant husband filed this action for divorce in Boone County where he has resided for less than six months. His wife and their children have lived in adjacent Kenton County for eighteen years. The trial court followed K.R.S. 452.470 and dismissed the husband's action for improper venue under the statute. It is the appellant's contention that the statute impermissibly discriminates against men in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Section Two of the Kentucky Constitution. Pursuant to K.R.S. 418.075, the Attorney General of Kentucky has been notified of the constitutional challenge to the statute and has elected not to participate in these proceedings.

First we will address the challenge under the federal Constitution. The Fourteenth Amendment protects fundamental rights and not necessarily the forum which a state designates for the litigation of those rights. If, however, a classification for venue is arbitrary and unrelated to the purposes of the statute it violates the Fourteenth Amendment. For example, a venue statute which distinguished between corporate libelers and individual libelers has been cast down on the basis of the Equal Protection Clause of the Fourteenth Amendment. McClung v. Pulitzer Pub. Co., 279 Mo. 370, 214 S.W. 193 (1913). Similarly, a Kentucky venue statute which distinguished between resident and nonresident defendants was held to deny equal protection of the law. The court, in Henry Fischer Packing Co. v. Mattox, 90 S.W.2d 70, 262 Ky. 318, 323 (1936), stated:

It of course rests with the state to prescribe the venue of actions brought in her courts. But the exercise of this power, as of all others, must be in keeping with the limitations which the Constitution of the United States places on state action. Procedural statutes are not excepted, but must fall like others when in conflict with those limitations.

The standard for review of a statutory classification based on gender was articulated in the case of Craig v. Boren, 429 U.S. 190, 50 L.Ed.2d 397, 97 S.Ct. 451 (1976). When a classification is gender-based courts will scrutinize both the purpose of the statute and the means by which it is to be accomplished. The classification must serve important governmental objectives and must be substantially related to the achievement of those objectives. The appellant claims that there is no legitimate state interest in requiring the husband to travel to the county of his wife's residence before he can seek a divorce nor is there an interest in giving the plaintiff wife the power to choose the forum by changing her residence. The appellee raises three governmental interests which are served by the statute.

The first is historical. The Kentucky divorce venue statute is virtually unchanged since 1852. It arose from the state's interest in protecting the party who faced inherent financial difficulties upon abandonment. In the past that party was almost always the wife, whose legal, social and economic position was one of powerlessness. The statute prevented the husband, who was more likely to be financially independent and generally had greater mobility, from forcing her to defend the action in a far-removed county with little interest in her welfare.

However laudable and necessary such protection was in the past, we do not think it comports with the changing status of women in our society today. Even if we were to uphold the objective of protecting an abandoned party, a gender-based distinction would not promote that objective in the situation where the wife leaves the marital residence. When that happens, she carries venue to her new residence and the abandoned husband must litigate in that forum. Under the current statute she can thus bring about precisely the situation which the appellee argues the statute was designed to prevent, i. e., the forcing of one party to defend in a distant uninterested county.

Second, the appellee argues that this classification minimizes conflicts by limiting the court's inquiry on venue to a determination of the county of the wife's residence; but that to "equalize" the statute would foster a race to the courthouse. Nevertheless, because it is the wife's actual and not legal residence which is involved, Gross v. Ward, Ky., 386 S.W.2d 456, 457 (1965), the simple inquiry may be complicated by the need to ascertain her intent to establish an actual residence. With the requisite intent, the wife can change her residence quickly. See Whitaker v. Bradley, Ky., 349 S.W.2d 831 (1961) (wife lived four days in new county); Calhoun v. Peek, Ky., 419 S.W.2d 152 (1967) (seven days in new county); Brumfield v. Baxter, 307 Ky. 316, 210 S.W.2d 972 (1948) (six days in new county).

Under the current statute, our courts have already had to wrestle with a race to the courthouse; that is, the wife's race to establish residency. In Burke v. Tartar, Ky., 350 S.W.2d 146 (1961), the husband won the race by filing his divorce action in the morning while his wife was in transit to her new residence. She filed in the second county that afternoon, but the court held that venue was proper in the husband's suit because it had been filed before she could establish a new actual residence. Therefore, to "equalize" the statute would not create a race, it would merely change the character of the existing race.

Third, it is claimed that the state has an interest in limiting forum-shopping and in restricting the forum for divorce to one with a substantial connection to the parties and their property. Assuming that these are important governmental objectives, this statute still is not substantially related to them. A more narrowly drawn version providing for venue in the county of the parties' last residence prior to separation would serve that purpose without resort to the unrelated factor of gender.

In 1972 our legislature saw fit to revise the substantive law of marriage and divorce to make it uniform as applied to men and women. Accordingly, the procedure provided should neither favor nor disfavor either party. We see no reason for continuing to give a resident wife the home court advantage in divorce actions. Paternalistic legislation without a substantial relationship to an important objective cannot withstand an equal protection challenge. Craig v. Boren, supra. The arguable administrative convenience of the current system will not save it. Johnston v. Hodges, 372 F.Supp. 1015 (E.D.Ky.1974).

The statute also violates Section Two of the Kentucky Constitution which protects citizens from the arbitrary exercise of power over life, liberty, or property by the Commonwealth. In interpreting Section Two, the Kentucky Supreme Court has held that, "Whatever is essentially unjust and unequal or exceeds the reasonable and legitimate interest of the people is arbitrary." Sanitation District Number One v. City of Louisville, 308 Ky. 368, 213 S.W.2d 995 (1948). See also, Rudolph v. Rudolph, Ky.App., 556 S.W.2d 152 (1977). The treatment of litigants under the statute is patently unequal and, we think, unjust. The sex-based distinction which limits the venue of a divorce action to the resident wife's home county is arbitrary and therefore unconstitutional under the Kentucky Constitution. Under this decision, an action for dissolution may be brought in the county where either party usually resides. Should the legislature determine that the venue should be related to parties' last marital residence or any other factor, it may so provide.

It could be argued that until the legislature acts, any circuit court could hear any divorce case once the prerequisites of K.R.S. 403.140 concerning residence, conciliation provisions, and a finding of irretrievable breakdown were satisfied. However, it does not appear to us that in this interim, the circuit courts are left without direction in deciding the proper forum for a divorce action. As a practical matter the jurisdictional restraints on the court's ability to handle the related matters of child custody child support, maintenance and property settlements will tend to limit litigants to filing in an interested forum.

In addition, our Supreme Court has provided circuit courts with guidance in deciding when to accept jurisdiction. In Shumaker v. Paxton, 613 S.W.2d 130, 28 Ky.L.Summ. 3 (March 10, 1981), Justice Aker wrote for a unanimous court and endorsed a common-sense approach to the problem of litigating in...