Russell v. Hill

• Decision Date: 27 March 1953
• Citation: Russell v. Hill, 256 S.W.2d 508 (Ky. 1953)
• Parties: RUSSELL v. HILL, Judge.
• Court: Supreme Court of Kentucky

Page 508

256 S.W.2d 508

RUSSELL v. HILL, Judge.

Court of Appeals of Kentucky.

March 27, 1953.

Joe Hobson, Prestonsburg, Hobson & Meigs, Frankfort, for petitioner.

Howard & Francis, Prestonsburg, for respondent.

DUNCAN, Justice.

This original action seeks a Writ of Prohibition against the judge of the Floyd Circuit Court prohibiting the respondent from proceeding in a divorce action now pending in that court in which petitioner is the defendant.

The petition here alleges that the court below is without jurisdiction to entertain the divorce action since the plaintiff there is not a resident of this State. The question presented is one of fact which we are required to determine from the depositions which were taken in the divorce action and are filed as a part of the record here.

Anthony Russell enlisted in the United States Navy on March 1, 1938, and through subsequent re-enlistments has continuously remained in the naval service since that date. Prior to his enlistment, he resided in Wheelwright, Floyd County, Kentucky, with his father and sisters. In November, 1937, he went to Cincinnati, Ohio, where he remained with an aunt until the time of his enlistment. Since entering the navy, he has had no permanent station or post of duty and his travels have extended over most of the world.

In September, 1942, he married the petitioner in Brooklyn, New York, and until the marital difficulties which culminated in the divorce action, most of his periods of leave were spent with his wife at the home of her parents in Brooklyn. Most of the voluminous record consists of many letters written to petitioner during his frequent absences, which are replete with protestations of love for his wife and affection for her family. Some few of the letters contain statements indicating that he considered his home as being the residence of his wife's parents.

In 1946, Anthony executed and filed an application for a bonus provided by the State of Ohio for residents of that State who were veterans of World War II, in which he claimed that his residence was Cincinnati, Ohio. He states that the application was filed upon advice of counsel and because he thought that he was entitled to the bonus inasmuch as Cincinnati was the place of his enlistment.

As against the implication which might arise from the letters and the application for the Ohio State bonus, we have the positive statement of the husband that he considers Wheelwright, Kentucky, as his residence. The last private employment which he held was as an employee of the Inland Steel Corporation at Wheelwright, and that post office was listed as his...