Opinion
September 29, 1961.
Steve Robbins, Richmond, for petitioner.
Lawrence C. Jenkins, Lexington, for respondent.
This action originated in the Court of Appeals.
William Gilbert Whitaker seeks to prohibit the trial of a divorce action in the Fayette Circuit Court. He contends that venue is properly in the Madison Circuit Court and that the Fayette Circuit Court is therefore without jurisdiction. KRS 452.470 provides that an action for divorce or alimony must be brought in the county where the wife usually resides. The petitioner contends that his wife filed her action in the Fayette Circuit Court at a time when she was still residing with him at the place of his residence in Madison County.
It appears from the record that Mrs. Whitaker left Madison County on February 6, 1961, with part of her personal belongings and that she on the same day rented quarters in Lexington, Fayette County, Kentucky. On the 10th day of February she filed her action for divorce in the Fayette Circuit Court. The petitioner, contending that the Fayette Circuit Court was without jurisdiction for want of venue, filed a motion to dismiss. After hearing testimony on the motion the Fayette Circuit Court held that Mrs. Whitaker was a bona fide resident of Fayette County when she filed her action in the Fayette Circuit Court.
Upon examination of the record and the cases thereunto pertaining we have concluded that the Fayette Circuit Court properly overruled the motion to dismiss for want of jurisdiction. It follows therefore that the petition for writ of prohibition must be denied.
We feel obliged to commend counsel for the excellent manner in which this case has been presented.
The petition is denied.