St. John v. St. John

• Decision Date: 19 June 1942
• Parties: ST. JOHN v. ST. JOHN.
• Court: Kentucky Court of Appeals

163 S.W.2d 820

291 Ky. 363

ST. JOHN v. ST. JOHN.

Court of Appeals of Kentucky

June 19, 1942

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division; Gilbert Burnett, Judge.

Action by Lawrence Robert St. John against Barbara St. John for divorce. From a judgment of dismissal, plaintiff appeals.

Reversed with directions.

Garland R. Hubbard, of Louisville, for appellant.

Lawrence S. Grauman, of Louisville, and Dante LaFranche, of Los Angeles, Cal., for appellee.

FULTON Justice.

The appellant, Lawrence Robert St. John, a Captain in the United States Army, filed this action in the Jefferson Circuit Court seeking a divorce from the appellee, Barbara St. John, on the ground of abandonment. The appellee entered her appearance to the action but did not contest it. Proof was taken and the chancellor was of the opinion that the evidence sufficiently established abandonment but dismissed the petition on the ground that appellant had not been a continuous resident of this state for a year next before the institution of the action as required by section 2120 of the Kentucky Statutes. On this appeal the case is briefed for the appellee by the County Attorney pursuant to request of the Circuit Judge.

Appellant was appointed to the United States Military Academy while a resident of Martinsville, Indiana, and, following his graduation in 1935, was assigned to military duty at different posts. In the Spring of 1940 he was assigned to Fort Knox. He and appellee were married in November, 1940, and went to housekeeping in West Point, a short distance from Fort Knox. Appellant bought furniture for this purpose and it is now stored in this state. The parties lived about six weeks at West Point and then moved to Vine Grove and lived there until March 1, 1941, when appellant was ordered by the Post Commander to move to Fort Knox, which he did. Since that time he has lived on the military reservation. Appellant's father has been dead many years. His mother left Martinsville in 1937 and rented her home. This home was sold in 1939. Since leaving her home, she resides with friends and has no fixed abode.

Appellant in his testimony, said: "I consider Kentucky as my home. I consider it as both my legal and actual residence. I established what I thought and intended to be a permanent residence here in Kentucky when I married on November 2 1940. I bought furniture which is stored in Kentucky. I joined the Knights Templar at Elizabethtown, Kentucky, over a year ago and I intend to keep my membership there. I have no other residence. I reside in Kentucky and have continuously resided here since November 2, 1940." A witness testifying for him verifies some of these facts and says that he heard appellant declare he liked Vine Grove and intended to live there permanently; that on a number of occasions while appellant and his wife were living together and after his wife left him he heard appellant say that he considered Kentucky as his home. None of this testimony is disputed or contradicted.

The right of a soldier to acquire a legal residence in a locality to which he has been assigned cannot be doubted. 28 C.J.S. Domicile,§ 12; Matter of Cunningham, 45 Misc. 206, 91 N.Y.S. 974; Matter of Grant's Estate, 83 Misc. 257, 144 N.Y.S. 567; Percy v. Percy, 188 Cal. 765, 207 P. 369. And this rule holds good even though the soldier is assigned to a military post on land ceded by a state to the federal government so that residence at the post would not constitute him a resident of the state. The text of 17 A.J. 634, based on the authority of Trigg v. Trigg, 226 Mo.App. 284, 41 S.W.2d 583, says: "*** if a person engaged in military service by animus and factum establishes a residence near but outside the military post, with the purpose of making such residence the home of himself and his wife, he may acquire a domicil in such place".

Having acquired a legal residence, it can only be lost or changed by the exercise of conscious volition on the part of the soldier, and the mere fact that he leaves his post involuntarily under army orders does not cause him to lose his actual or legal residence. Radford v. Radford, 82 S.W. 391, 26 Ky.Law Rep. 652. Hence, if appellant actually acquired a legal residence in Kentucky, the mere fact that under army orders he moved his residence to Fort Knox, which has been ceded to the federal government, did not operate to terminate or change...