LANCASTER v. LANCASTER

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Docket Number

No. 86-CA-2028-MR.

Attorney(S)

Daniel C. Hicks, Daniel C. Hicks Law Firm, Hopkinsville, for appellant. Phillip R. Patton, Richardson Patton, Glasgow, for appellee.

Judges

WEST, Judge.

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Smart Summary

Factual and Procedural Background

This appeal arises from a dissolution of marriage proceeding involving Jackie Lancaster (Appellant) and Patty Allyson Killebrew Lancaster (Appellee). The parties were married in Christian County, Kentucky, in 1983 and lived there throughout their marriage. They separated in November 1985, after which the wife moved to Barren County with their infant child. Within a month, she filed for dissolution of marriage in Barren County. The husband immediately filed a motion to dismiss or transfer venue to Christian Circuit Court, which was denied. The parties settled property division issues but contested child custody and support. The Barren Circuit Court entered a decree awarding custody to the wife, established visitation rights and support payments, and found it was the proper venue for the case. The husband appealed, challenging the venue.

Legal Issues Presented

Whether the Barren Circuit Court was the proper venue for the dissolution of marriage proceeding, specifically regarding child custody and support issues.

Arguments of the Parties

Appellant's Arguments

The appellant argued that under the factors identified in Hummeldorf v. Hummeldorf, the Barren Circuit Court was not the proper venue to decide child custody, visitation, and support issues.
He contended that the court should have declined jurisdiction in favor of Christian Circuit Court based on the parties’ marital residence and other relevant considerations.
The appellant did not contest the merits of the custody determination but challenged the court’s venue to make that determination.

Appellee's Arguments

The opinion does not contain a detailed account of the appellee’s legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hummeldorf v. Hummeldorf, Ky.App., 616 S.W.2d 794 (1981)	Factors to consider when multiple forums are available for custody and venue decisions, including marital residence, child’s usual residence, and convenience of witnesses.	The court acknowledged these factors as guidance but held venue discretion rests with the court and was not abused here.
Shumaker v. Paxton, Ky., 613 S.W.2d 130 (1981)	Emphasizes the best interests of the child and selecting the "more convenient and most interested" forum in custody disputes.	The court distinguished Shumaker because this case involved an original dissolution intertwined with custody and property issues, affirming venue discretion.
KRS 452.470 (Kentucky Revised Statutes)	Venue for dissolution actions may be in the county where either party usually resides.	The statute permits either Barren or Christian Circuit Court to exercise jurisdiction; the court found no abuse of discretion in Barren’s acceptance.
Williams v. Williams, Ky.App., 611 S.W.2d 807 (1981)	Standard that a venue determination will not be reversed absent an abuse of discretion.	The court applied this standard to uphold the Barren Circuit Court’s venue decision.

Court's Reasoning and Analysis

The court recognized the appellant’s reliance on Hummeldorf and its enumerated factors for determining proper venue in custody disputes, including marital residence, child’s residence, and witness convenience. While acknowledging these factors provide useful guidance, the court emphasized that venue decisions remain discretionary under KRS 452.470, which permits dissolution actions to be brought in the county where either party resides.

The court distinguished this case from Shumaker because it involved an original dissolution intertwined with custody and property issues rather than a pure custody dispute. It noted that the legislature amended the venue statute in 1982 to allow venue in either party’s residence county but did not mandate venue based on last marital residence or other factors.

Importantly, the court found no abuse of discretion in Barren Circuit Court’s exercise of jurisdiction. The court also highlighted procedural accommodations made to reduce inconvenience, such as permitting depositions in Christian County, which the appellant declined to utilize. Since the appellant did not challenge the custody decision’s merits, only venue, the court affirmed the judgment.

Holding and Implications

The Court AFFIRMED the Barren Circuit Court’s judgment in the dissolution proceeding, including its determination that venue was proper in Barren County.

The direct effect of this decision is to uphold the dissolution decree awarding custody and support as entered by the Barren Circuit Court. The opinion does not establish new precedent but reinforces that venue determinations under KRS 452.470 are discretionary and will not be overturned absent abuse of discretion.

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Jackie LANCASTER, Appellant, v. Patty Allyson Killebrew LANCASTER, Appellee.

WEST, Judge.

This is an appeal from a judgment in a dissolution of marriage proceeding which determined issues of child support and custody. The sole argument on appeal is that the Barren Circuit Court was not the proper venue for the action.

The parties were married in Christian County in 1983 and resided there during their entire marriage. In November of 1985, they separated and the wife moved to Barren County with their infant child. Less than a month later, she filed a petition for dissolution of the marriage in Barren County.

The appellant/husband immediately filed a motion to dismiss or to transfer venue to the Christian Circuit Court which was denied. The parties thereafter entered into a settlement agreement with regard to property restoration and division but issues of child custody and support remained contested. Following a hearing, the Barren Circuit Court entered a decree of dissolution and awarded custody to the wife, establishing visitation rights and support payments of the appellant. The court also specifically found that it was the proper forum to decide those issues.

Appellant cites Hummeldorf v. Hummeldorf, Ky.App., 616 S.W.2d 794 (1981), wherein this Court identified factors to be considered in cases where there are competing forums available. Some of the relevant factors include "(1) the county of the parties' marital residence prior to separation; (2) the usual residence of the children, if any; (3) and the accessibility of witnesses and the economy of offering proof." Id. at 798. Appellant argues that applying these factors to the case at bar required Barren Circuit Court to decline to act on the contested issues of child custody, visitation and support.

We firmly believe that these factors should be considered by circuit courts when they have the option to decide to accept or decline jurisdiction. Particularly in disputes over child custody, where the issue to be determined is the best interests of the child, looking to the "more convenient and most interested" forum provides a common-sense approach which we applaud. Shumaker v. Paxton, Ky., 613 S.W.2d 130 (1981); KRS 403.440, et seq., (U.C.C.J.A.)

Nonetheless, we have concluded to affirm the Barren Circuit Court's decision to exercise jurisdiction in this particular case. Initially, we point out that this case differs from Shumaker, supra, in that it is an original action for dissolution of marriage which is naturally intertwined with issues of property, custody and support.

In Hummeldorf, supra, relied on by appellant, this court simply held the former divorce venue statute, KRS 452.470, unconstitutional in that it fixed venue in the home county of the wife. Id. at 797. Specifically, we stated that:

Under this decision, an action for dissolution may be brought in the county where either party usually resides. Should the legislature determine that the venue should be related to parties' last marital residence or any other factor, it may so provide. (Emphasis added.) Id.

Of course, the legislature did act to amend the statute in 1982, allowing actions to be brought "where either party usually resides." KRS 452.470. However, the new legislation did not provide for venue of the action for dissolution and maintenance to be related to the parties' last residence or any other factor. Accordingly, under the statute, either Barren or Christian Circuit Court could properly accept jurisdiction of this action for dissolution of the parties' marriage. While we believe the factors stated above can offer guidance to circuit courts, it is nonetheless within the discretion of the court to accept or decline jurisdiction. Hummeldorf, supra, at 798; Williams v. Williams, Ky.App., 611 S.W.2d 807 (1981); KRS 452.470. Such a determination will not be reversed absent an abuse of discretion. Williams, supra.

In the case at bar there is no abuse of discretion. Indeed, the Barren Circuit Court granted appellant's motion to take testimony of witnesses in Christian County by deposition in order to reduce inconvenience and expense. However, appellant thereafter elected not to avail himself of that opportunity and the case was submitted to the court on the hearing only. Appellant does not argue that the court's determination of custody was clearly erroneous, only that it lacked venue to make the determination. For the reasons set forth herein, we disagree and the judgment is hereby AFFIRMED.

All concur.