GAUNCE (TAMMYE M.) VS. GAUNCE (PATRICK WAYNE)Annotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
TAMMYE M. GAUNCE
APPEAL FROM WARREN FAMILY COURT
HONORABLE MARGARET RYAN HUDDLESTON, JUDGE
ACTION NO. 07-CI-00867
PATRICK WAYNE GAUNCE
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.
DIXON, JUDGE: Appellant, Tammye M. Gaunce, appeals from an order of the
Warren Family Court dismissing her petition for dissolution on grounds of
improper venue. Finding no error, we affirm.
Appellant and Appellee were married on January 26, 2002. Two
children were born of the marriage in 2003 and 2005, respectively. During the
parties’ marriage, they resided in Barren County, Kentucky. However, in
November 2006, Appellant leased an apartment in Warren County as a place to
“get away to clear her head” while the parties were attempting to resolve marital
problems. The children continued to live at the parties’ marital residence, the
oldest being enrolled in a Montessori school in Barren County. The parties further
continued to employ a full-time nanny in Barren County.
On Monday June 4, 2007, Appellant filed a petition for dissolution in
the Warren Family Court. Upon being served with the petition, Appellee filed a
similar petition in the Barren Circuit Court, as well as a motion in the Warren
Family Court to dismiss the petition filed therein on venue grounds. During a
subsequent hearing in the Warren Family Court, Appellant acknowledged that
although she had moved a few possessions to the Warren County apartment, the
majority of her belongings, as well as all of the children’s belongings, remained in
the Barren County residence. Further, as of June 4, 2007, Appellant was still
registered to vote in Barren County, had a Barren County driver’s license, and
received some mail at the Barren County residence. Appellant further noted that
she and Appellee had hosted a wedding party at their Barren County residence on
Friday June 2, 2007. Finally, Appellant admitted that the parties’ oldest child had
never spent a night in the Warren County apartment, while the younger child had
only spent one night at the apartment.
At the conclusion of the hearing, the family court ruled that Appellant
had only intended to change her residence to Warren County on the weekend prior
to filing the petition, and that such was insufficient to warrant the court accepting
venue, especially in light of the fact that a similar petition was pending in Barren
County. Thus, the family court dismissed Appellant’s petition for dissolution.
This appeal ensued.
Appellant argues to this Court that Warren County is the proper venue
for the dissolution proceeding and that the family court erred in dismissing the
petition. Appellant argues that it was her intent to relocate to Warren County and
the amount of time between the change in residence and the filing of the petition is
irrelevant. We disagree.
It is within the discretion of the court to accept or decline jurisdiction
of a dissolution proceeding. Hummeldorf v. Hummeldorf, 616 S.W.2d 794, 798
(Ky. App. 1981); Williams v. Williams, 611 S.W.2d 807 (Ky. App. 1981); KRS
452.470. On appellate review, such a determination will not be reversed absent an
abuse of that discretion. Lancaster v. Lancaster, 738 S.W.2d 116, 117 (Ky. App.
The legislature has clearly allowed for a choice of venues in
dissolution proceedings. KRS 452.470 permits a dissolution proceeding to be
adjudicated in a county “where the husband or the wife usually resides.” In
choosing to accept or decline jurisdiction in such actions, the court should look to a
number of factors including the county of the parties’ marital residence prior to
separation, the usual residence of the children, if any, and the accessibility of
witnesses and the economy of offering proof. Hummeldorf, supra.
In Sebastian v. Turner, 320 S.W.2d 794, 795 (Ky. 1959), Kentucky’s
highest court held that in determining whether or not a wife has established a new
residence, (1) intention alone is insufficient, (2) no particular time is necessary to
acquire a new residence, (3) good faith is required, (4) the wife must remove
herself and a substantial portion of her belongings, and (5) the evidence must show
that she has actually and completely abandoned her former residence. The Court
It is to be noted that KRS 452.470 fixes the venue of a
divorce action in the county where the wife ‘usually
resides’. The use of the word ‘usually’ in the statute
indicates an intention upon the part of the legislature that
the place of abode must have become established as a
residence. Something more is required than the
overnight removal of the wife's person from one place to
another for the purpose of commencing a suit for divorce.
Given Appellant’s own testimony at the hearing, we must agree with
the family court that Warren County was not where Appellant “usually reside[d]”
prior to the filing of the petition for dissolution. Although it may have been her
intent to permanently relocate herself and her children to Warren County, the
evidence simply does not support a finding that she did so prior to filing the
petition for dissolution. As such, the family court did not abuse its discretion in
declining to accept jurisdiction. Clearly, Barren County is the appropriate venue to
adjudicate the action herein.
The order of the Warren Family Court dismissing Appellant’s petition
for dissolution is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David F. Broderick
Christopher T. Davenport
Bowling Green, Kentucky
Betty Reece Herbert
Brian K. Pack