dissenting.
I must respectfully dissent because I believe the existing venue statute is not arbitrary and serves a useful and legitimate governmental purpose, and is substantially related to the realization of these legislative objectives. It is not unconstitutional.
The current law recognizes the continued inherent economic problems faced by a wife in the employment market. A wife and mother who has selflessly committed herself to the making of the home with the primary responsibility of child care is frequently unprepared to earn a decent living in today’s society. The ideal of nominal equality must be tested against the world of reality. Pious words will not protect an abandoned wife with minor children.
The existing venue statute acknowledges the financial hardship and immediate adjustment that occurs when a dissolution of marriage is filed. Here the wife is left with the care of four minor children, the product of an 18 year marriage. It appears that she is not trained to compete in the job market.
Divorce law is a creature of statute. It has no historical basis in either law or equity. This statute is quite clear in providing the venue of the suit as the wife’s residence. There is nothing peculiarly arbitrary about such a provision. Generally, a civil suit is filed in the locality of the defendant. Here service was obtained in Kenton County.
In the interests of judicial economy, an innovative step might have been considered by the trial judge by simply transferring this action to the circuit court having territorial jurisdiction over the residence of the wife. The 1976 Judicial Amendment to the Constitution provides for a Circuit Court without any specific reference to geographical areas.
It appears to me that this is an inappropriate case in which to decide the constitutionality of the venue statute.
*799There is no real inconvenience for either party because of the urban-suburban character of Boone and Kenton Counties which adjoin. However, there is a distinct and manifest unfairness in requiring the wife to defend a divorce proceeding when she had a right to expect stability in the law. Here the husband was well aware of the longstanding Kentucky venue requirements. The trial court courageously recognized and upheld the law. Now a majority of this panel wishes to undo it. The wife is faced with surrendering her reliance on the existing law and engaging in a further expensive appeal.
No suitable reason can be found to overturn the decision of the Boone Circuit Court. If that decision is measured by analogizing it to a clearly erroneous standard, how can it be said that the trial judge committed reversible error in upholding the existing law. It has been held in Kentucky, in Commonwealth v. Burke, Ky., 481 S.W.2d 52 (1972), that gender-based classification must stand the test of rational connection and fair and substantial relation to the objective of the statute.
In Caban v. Mohammad, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), the United States Supreme Court found that a gender-based classification which serves an important governmental objective is constitutional. In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 773 (1979), the Supreme Court added the test that the classification must be substantially related to the achievement of these governmental objectives.
The present statute meets these tests because there is a definite public purpose in localizing a divorce contest. Most of the significant marital contacts can be found in connection with the residence of the wife. The children reside with the wife and a substantial percentage of the marital property is in the county of her residence. The problems of subsequent enforcement of the court’s order as to custody, visitation, division of the marital property and any number of other routine dissolution questions are best answered in the county in which the marriage is localized.
Resolution of the venue question in the manner proposed by this opinion would encourage forum shopping or a race to the court house. Statewide application of the rule announced here allows either party to move the action from the county in which the marital property is located and where the children reside to any other county upon fulfilling a minimum residency requirement.
The concept of equality is fragile and intangible. It is not truly served by this decision. Equality should be measured by the results achieved. Here the wife is stripped of her right to rely on the law and must defend this action in a foreign, although adjoining, county.
The Kentucky Legislature in 1972, when it last considered substantive revisions in the divorce laws, left the venue provisions unchanged. Although there have been great advances in the overall position of women in our society, it is naive to think that total equality between the sexes has been achieved. It is not paternalism for application of the law to result in a balance between divorce contestants.
Here it is the duty of the intermediate appellate court to support the existing law and not to indulge in judicial legislation. Domestic relations is one of the most active fields of litigation. This decision only adds to the problems faced by the 91 circuit judges in this Commonwealth. The next session of the Kentucky Legislature is not scheduled for at least one year. In that interim great injustice could result from the decision rendered here.
This Court has no way of determining the factual questions relating to who is better served by the existing law. A committee of the legislature could conduct hearings and arrive at a rational and legitimate basis for changing the venue law if that is thought necessary.
Accordingly, I believe that K.R.S. 452.470 serves important governmental objectives, and is substantially and rationally related to the achievement of these legislative objectives. Therefore, it is constitutional.