Lanham v. Lanham

• Decision Date: 12 June 1945
• Citation: 300 Ky. 237
• Parties: Lanham v. Lanham.
• Court: United States State Supreme Court — District of Kentucky

300 Ky. 237

Lanham v. Lanham.

Court of Appeals of Kentucky.

June 12, 1945.

1. Domicile. — One may have a legal residence or domicile in one state and an actual residence in another.

2. Divorce. — Evidence that husband, when 21 years old, left his parents' home in Kentucky and went to Ohio where he married, giving Cincinnati as his place of residence, that husband and wife lived there until their separation, that he was inducted into the army in Cincinnati and that he sent his civilian clothes to his parents' home and expressed intention to return there permanently when he was discharged from the army, failed to establish husband's actual residence in Kentucky so as to authorize him

to maintain an action of divorce in Kentucky. Civil Code of Practice, sec. 423.

3. Divorce. — Actual residence as distinguished from legal residence or domicile is required to maintain divorce action. Civil Code of Practice, sec. 423.

Appeal from Whitley Circuit Court.

W.R. Henry for appellant.

Stephens & Steely for appellee.

Before Flem D. Sampson, Judge.

OPINION OF THE COURT BY JUDGE HARRIS.

Affirming.

This is a divorce action. It was instituted by the husband and is here on his appeal from an order sustaining his wife's jurisdictional plea and dismissing his petition.

There is no conflict in the evidence with respect to the jurisdictional facts, which may be summarized as follows: Plaintiff's parents reside on a farm in Whitley county where he was born and reared; in 1934, when he was about 21 years of age, he left their home and went to Cincinnati, Ohio; in 1936 he married the defendant, and in obtaining his license for that purpose he gave Cincinnati as his place of residence; following the marriage he and his wife kept house and he lived there continuously until their separation in the winter of 1940; in the meantime his child was born there in Cincinnati; he registered for the draft and was inducted into the army there in that city; he has not lived in Whitley county or in Kentucky at any time since he left in 1934, nor has he ever registered or voted in that county, although he has always claimed his father's home as his home and has visited with his parents for short periods each year; when he entered the army he sent his civilian clothes to their home; he says that it is his intention to return to Whitley county and to make his home there permanently when he receives his discharge from the army.

The plaintiff relies upon Radford v. Radford, 82 S.W. 391, 26 Ky. Law Rep. 652, insisting that the facts bring his case within that authority.

The Radford case does not sustain his position, but on the contrary its every implication is against him. In that case the plaintiff husband was an actual resident, property owner and taxpayer of Christian county at the time he entered the navy. The question presented therefore, was not whether he had a residence in Christian county at the time of his...