WILLIAM CLARENCE GUINN, III v. DOROTHY ELIZABETH GUINN
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RENDERED: MAY 11, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002059-MR
WILLIAM CLARENCE GUINN, III
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 00-CI-00465
v.
DOROTHY ELIZABETH GUINN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND MILLER, JUDGES.
MILLER, JUDGE:
William Clarence Guinn, III, brings this appeal
from a June 27, 2000, order of the Hardin Circuit Court.
We
affirm.
William Clarence Guinn, III (William) and Dorothy
Elizabeth Guinn (Dorothy) were married May 23, 1987, in South
Carolina.
In 1994, William retired from the United States Army.
At that time, the parties moved to Radcliff, Kentucky.
After
William's retirement from the military, Dorothy retained a civil
service position with the United States Department of Defense at
Fort Knox, Kentucky.
Around July 1997, Dorothy's employer
transferred her to Japan.
The parties then sold their home and
Dorothy moved to Japan with the expectation that William would
join her later.
William traveled to Louisiana and stayed with
his step-daughter until he was able to join Dorothy in Japan some
four months later.
In December 1997, William also obtained
civilian employment in Japan.
The parties have not filed
Kentucky State income tax returns since 1997.
William has
claimed Florida, where he owns real property, as his residence
for taxation purposes.
The parties separated on or about December 17, 1999.
On March 24, 2000, William filed a petition for dissolution of
marriage in the Hardin Circuit Court.
On April 14, 2000, Dorothy
filed a motion to dismiss the action for lack of jurisdiction due
to the fact that neither party was a resident of Kentucky for the
statutorily required one hundred eighty days next preceding the
filing of the petition.
On June 27, 2000, the commissioner filed
a report recommending dismissal for lack of jurisdiction.
On
July 7, 2000, William filed exceptions to the commissioner's
report.
On August 3, 2000, after reviewing the commissioner's
report, affidavits, pleadings, and other evidence, the Hardin
Circuit Court adopted the report of the commissioner and
dismissed the action.
Ky. R. Civ. P. (CR) 53.06.
This appeal
follows.
William's sole assignment of error is that the Hardin
Circuit Court erred by dismissing the petition of dissolution.
In support of his contention, William relies on Kentucky Revised
Statute (KRS) 403.140(1)(a), which reads;
(1)
The Circuit Court shall enter a decree
of dissolution of marriage if:
-2-
(a)
The court finds that one (1) of
the parties, at the time the
action was commenced, resided in
this state, or was stationed in
this state while a member of the
armed services, and that the
residence or military presence has
been maintained for 180 days next
preceding the filing of the
petition;
Our standard of review is whether the circuit court's
findings of fact were clearly erroneous or the court abused its
discretion.
CR 52.01; see Cherry v. Cherry, Ky., 634 S.W.2d 423
(1982).
William does not contend that he has maintained actual
residence in Kentucky for one hundred eighty days preceding the
filing of the petition; rather, he claims to fall within an
exception to that requirement.
A party who can demonstrate legal
residence in Kentucky and a temporary absence does not need to
show the one hundred eighty days actual residence preceding the
filing of a divorce petition.
663 S.W.2d 219 (1983).
was temporary.
See McGowan, v. McGowan, Ky. App.,
William claims his absence from Kentucky
William relies on the fact that he had a Kentucky
driver's license and was registered to vote in Hardin County.
He
asserts that these two facts evidence an intention to return to
Kentucky and thus prove his absence was temporary.
In applying McGowan to the instant case, the circuit
court was unable to find sufficient evidence to prove that the
absence was temporary.
The court pointed out that William had
renewed his license in October 1999, two years after he left
Kentucky.
It also noted that on the license application, William
gave his original address in Radcliff, by then occupied by
-3-
unrelated parties.
Further, the circuit court noted that the
absentee ballot request made by William was made after the
petition for dissolution was filed.
Finally, the court observed
that William lists his last day of residency in Kentucky as July
31, 1997.
The circuit court found that William was attempting
to improperly set up Kentucky for jurisdictional purposes.
Simply put, we are of the opinion that William's absence from
Kentucky was not “temporary.”
Hence, we do not think Kentucky
had jurisdiction over William's petition for dissolution and,
thus, affirm the dismissal of same.
Upon the whole, we do not believe the findings of fact
are clearly erroneous, nor do we perceive there to be an abuse of
discretion of the circuit court.
For the foregoing reasons, the order of the Hardin
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven J. Kriegshaber
Louisville, Kentucky
Mitchell A. Charney
Stephanie L. Morgan-White
Louisville, Kentucky
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