Stewart v. Yager

• Decision Date: 05 November 1954
• Citation: 272 S.W.2d 674
• Parties: Marjory Ellison STEWART, Petitioner, v. Hon. Ward YAGER, Judge of 15th Circuit Court District, Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 674

272 S.W.2d 674

Marjory Ellison STEWART, Petitioner, v. Hon. Ward YAGER, Judge of 15th Circuit Court District Respondent.

Court of Appeals of Kentucky.

Nov. 5, 1954.

George B. Ryan, Louisville, for petitioner.

William G. Reed, Carrollton, for respondent.

MOREMEN, Justice.

This is an original action by which petitioner, Marjory Ellison Stewart, seeks an order requiring the Hon. Ward Yager, Judge of the 15th Judicial District, to desist from proceeding further in a certain divorce action pending in his court in which Henry Van Dyke Stewart is plaintiff, and petitioner is defendant.

The question involved concerns whether or not a divorce action has proper venue under KRS 452.470 which provides that an action for alimony or divorce must be brought in the county where the wife usually resides if she have an actual residence in this state and if she does not, it must be brought in the county of the husband's residence. This section (it was formerly Section 76 of the Civil Code of Practice) has been under consideration several times. The court has given no special technical meaning to the expression, 'usually resides,' and has held that no particular length of time is required by law to effect a change of residence and has determined from the facts whether the wife had met the usual requirements of establishing a new residence. Where it was shown that she had obtained actual physical presence with a bona fide intention of changing her residence to a new county, such action was sufficient. Brumfield v. Baxter, 307 Ky. 316, 210 S.W.2d 972; Thomas v. Newell, 277 Ky. 712, 127 S.W.2d 610.

The facts in this case upon which we must fix the place of petitioner's residence are not in dispute. On March 10, 1954, Dr. and Mrs. Stewart separated in Carrollton where they had an established residence. Mrs. Stewart rented an apartment in Carrollton which she occupied with her infant son. She filed a divorce suit in the Carroll Circuit Court which thereafter was dismissed. On May 13, 1954, she went to Louisville and there employed an attorney. She informed him that it was her intention to move to Louisville the following weekend, and sought his advice about filing a suit for divorce in Jefferson County. By Saturday, May 15, Mrs. Stewart's divorce complaint was prepared and ready for filing. Mrs. Stewart had been notified that the apartment which she occupied in Carrollton would no longer be available to her. On Sunday, May 16, she went to Louisville where she rented a furnished apartment and on the same day transferred to it about half of her personal belongings. She returned to Carrollton where she spent the night. On the morning of Monday, May 17, the husband filed his complaint in the Carroll Circuit Court and process was immediately served upon Mrs. Stewart at her apartment while she was engaged in removing the balance of her belongings. Soon thereafter she went to Louisville where in the Jefferson Circuit Court she also filed complaint seeking a divorce, custody of her child, and a property settlement.

In several of the cases which we have examined, Brumfield v. Baxter, 307 Ky. 316, 210 S.W.2d 972; Thomas v. Newell, 277 Ky. 712, 127 S.W.2d 610; Gooding v. Gooding...