COMMONWEALTH OF KENTUCKY
HOPKINS CIRCUIT COURT
MADISONVILLE, KENTUCKY 42431
CIVIL ACTION NO. 92-CI-00444
IN RE: THE MARRIAGE OF LAURA VANNOY PADGETT, PETITIONER,
AND THOMAS CARTER PADGETT, RESPONDENT.
IN RE: THE CUSTODY AND SUPPORT OF JULIE ELIZABETH PADGETT,
AND BEAU GRANVILLE PADGETT, MINOR CHILDREN.
REPLY TO RESPONDENT'S MOTION TO DISMISS
Comes now the Petitioner, by counsel, and for her reply
to the Respondent's motion that this Court dismiss this action
states as follows:
THE RESPONDENT HAS ADMITTED THAT HIS
USUAL PLACE OF RESIDENCE FOR THE LAST
YEAR HAS BEEN IN SOUTHFIELD, MICHIGAN
Throughout the document the Respondent has titled his
Memorandum of Law, he has shown this Court that following his
move to Michigan because of his employment, he only visited with
his family in Fayette County, Kentucky. Thus, the Respondent's
usual place of residence at all times material to this action has
been that of Southfield, Oakland County, Michigan.
The Respondent's pleading fails to address the fact
that the parties' house in Fayette County, Kentucky, has been
sold and neither party now has anything remotely hinting at
residency in Fayette County. The completion of the sale of the
parties' Fayette County real property adds pointed expression to
the fact that neither party had any intent to continue to reside
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Fayette County once their house and lot was listed for sale in
1991. Because of his job the Respondent simply was able to
change his residency prior to the Petitioner being able to do so.
THE PETITIONER WAS A RESIDENT OF HOPKINS COUNTY
WHEN HER PETITION WAS FILED AND HAS SINCE
REMAINED A RESIDENT OF HOPKINS COUNTY
This Honorable Court will be offered various detailed
exhibits showing that the Petitioner was indeed a resident of
Hopkins County at the time she filed her Petition For Dissolution
of Marriage through this civil action. However, it is also
important for the Court to consider the fact that the Respondent
admits in his pleadings that on Saturday, August 8, 1992, he
personally witnessed the fact that the majority of the furnish-
ings in the Fayette County house had been removed by the Peti-
tioner to Hopkins County, Kentucky. The Petitioner will also
introduce documentary evidence which proves that the Respondent
had in his possession and actually read a copy the Hopkins
Circuit Court Petition while he was in Fayette County during his
August 7, 1992, visit.
The Respondent has referred this Court to the 1959 case
of Sebastian v. Turner, Ky., 320 S.W.2d 794 (1959). It is
respectfully submitted that a more appropriate case for this
Court to consider under the factual setting of the present case
is that of Martin v. Fuqua, Ky., 539 S.W.2d 314 (1976). In the
Martin case Kentucky's Supreme Court distinguished the Sebastian
case and emphasized that although the wife had gone from
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Christian county to Todd County the night before she filed her
Todd County petition for divorce and had left the vast majority
of her belongings in Christian County and was residing in the
Todd County home of her parents, nevertheless, she had estab-
lished her usual residence as being in Todd County. Further, in
the Martin case setting the husband had filed his petition for
dissolution of marriage in the Christian Circuit Court on the
same day that the wife filed her petition in the Todd Circuit
Court.
In the case at bar there is absolutely no doubt that at
the time Mr. Padgett filed his Fayette County petition, Mrs.
Padgett had previously filed her Hopkins County petition and was
a full time resident of Hopkins County.
FORUM NON CONVENIENS
The Respondent resides in Oakland County, Michigan.
The Petitioner resides in Hopkins County, Kentucky. The parties'
house and lot in Fayette County, Kentucky, has been sold and
neither party has any reason for this action to be litigated in
the Fayette Circuit Court.
As the Respondent's memorandum illustrates, the par-
ties' children have resided with the Petitioner since the time
the Respondent moved to Southfield, Michigan, in 1991. The
parties' children now reside with the Petitioner in Hopkins
County, Kentucky, and are enrolled in the Hopkins County schools.
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The Respondent has submitted to the jurisdiction of the
Kentucky courts and it is respectfully submitted that the only
logical forum in Kentucky for the parties' dissolution of mar-
riage proceeding to be adjudicated is that of the Hopkins circuit
court. All of the parties' relevant contacts with Kentucky are
now in Hopkins County. As quoted in part by the Respondent in
his memorandum:
"Particularly in disputes of child custody,
where the issue to be determined in the best
interest of the child, looking to the more
convenient and most interested forum provides
a common sense approach which we applaud."
Lancaster v. Lancaster, Ky. App., 738 S.W.2d
116 (1987).
The parties' children and their maternal family reside in Hopkins
County, as do many potential witnesses who are familiar with the
fact that throughout the parties' marriage the Petitioner/mother
has been the primary custodial parent of the children.
CONCLUSION
For the above stated three reasons the Respondent's
motion to dismiss should be overruled and this Court should enter
its findings of fact that at all pertinent times to this action
the Petitioner's usual residence was that of Hopkins County; that
at all pertinent times to this action the Respondent's usual
residence was Southfield, Oakland County, Michigan, and; that the
significant contacts in Kentucky lie in Hopkins County and thus
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enter its order establishing venue of this action in the Hopkins
Circuit Court.
Respectfully submitted,
[signature]
Michael D. Hallyburton
Attorney for Petitioner
54 South Main Street
Madisonville, KY 42431
(502) 825-2915
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Reply To Respon-
dent's Motion To Dismiss was served on the parties herein by hand
delivering a true copy thereof to Lola Philpot Lewis, 177 North
Limestone, Lexington, KY 40507, attorney for Respondent, on this
the 1st day of September, 1992.
Michael D. Hallyburton
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