Tipton v. Tipton

• Decision Date: 12 May 1888
• Citation: 8 S.W. 440,87 Ky. 243
• Parties: TIPTON v. TIPTON.
• Court: Kentucky Court of Appeals

8 S.W. 440

87 Ky. 243

TIPTON v. TIPTON.

Court of Appeals of Kentucky.

May 12, 1888

Appeal from court of common pleas, Madison county.

Action for divorce by G. W. Tipton against Fannie G. Tipton. The petition was dismissed on the hearing, and the plaintiff appeals.

Wm Lindsay and A. J. Reed, for appellant.

W. B Smith, for appellee.

BENNETT J.

The appellant, a citizen of Madison county, and owning real estate on which he lived with his wife and children, in May 1880, abandoned his wife and children, and left the state and remained out of the state until November, 1883, when he returned to Madison county, and remained there about three months, not, however, visiting his former residence, which had remained in the occupancy of his wife and children. He then again left the state, and did not return until April or May, 1885, when he remained in Madison county until the 1st of January, 1886, but did not visit his former home, where his wife and children still resided. He, on the 1st of January, 1886, again left the state, and has remained out of it ever since. Since he left the state in 1880, and during his absence, except one year when he was in Maryland, he has lived on one of the West India islands, in the employment of a phosphate company. He says in his deposition, which, by consent, was read in this case, that he always regarded Madison county as his home, and never voted at any other place since he left the county, and did not leave the county with the intention of ""remaining away any great length of time; not any longer than I could get things in a shape to return." The evidence also shows that he paid poll taxes, through his brother, in Madison county, and during his second visit he voted at the August election, 1885; that when he left in 1886 he told his brother that he was going away for a year or two, but would return. On the 4th of October, 1886, he commenced this action against the appellee, his wife, for a divorce, upon the ground of a continuous separation for the period of five years. The chancellor dismissed his petition for the reason that he was not a resident of this state for one year next before the bringing of his action. He has appealed to this court.

Section 423 of the Civil Code provides: "The plaintiff, to obtain a divorce, must allege and prove, in addition to a legal cause of divorce: (1) A residence in this state for one year next before the commencement of the action." There is a broad distinction between a legal and actual residence. A legal residence (domicile) cannot, in the nature of things co-exist in the same person in two states or...