#### PROTHRO v. PROTHRO.

Court of Appeals of Kentucky.

Nov. 20, 1953.

Rehearing Denied March 19, 1954.

Bell & Orr, Joe B. Orr, Bowling Green,, for appellant.

Myers & Logan, Rodes K. Myfe'rs, Bowl*' ing Green, for appellee. ...

GAMMA CK, Justice'.'

This is an appeal from a judgment annulling the marriage of James Thompson Prothro, Jr., and Ann Gorin-Prothro, performed in 19’50, on the grounds of .fraud, misrepresentation and 'deceit on the part of Mr. Prothro. In urging reversal Mr. Pro-thro argues that the annulment of ,a marriage is an action for a personal judgment, and the court should have refused'to entertain the action since he was neither per-' sonally served within the territorial limits of .the court’s jurisdiction nor was his appearance entered "in the action. We think' his position is well taken. '

The Prothros- were first married in Simp--son County, in 1941. Mr.. Prothro, who was a football coach, filed suit for divorce in Tennessee, in 1947. While that action was pending, Mrs.- Prothro filed an alienation of affections, suit in the United States District Court in Memphis against Mr. Pro-, thro’s parents. An agreement was reached between the parties, and Mrs. Prothro filed suit for divorce -in the Simpson Circuit Court. She was granted a divorce in that court, in 194$, and was awarded the custody of an infant daughter. A trust fund was established for her and the child. The alienation of affections suit was dismissed. The parties remarried in Simpson. County, in July, 1950, They were in Tennessee for a,while and then went to'California, where Mr. Prothro was, an assistant coach at U. C. L. A.

. The basis of .the annulment action is that Mr.. Prpthro fraudulently . instigated , the marriage of the parties in 1950, in order.to have Mrs. Prothro under his control so that he could get her to agree to the discontinuance of the payments under the trust agreement and return ,to him the money which she had been paid. Mr. Prothro filed suit for a divorce in California. It is Mrs. Prothro’s contention that this suit was filed when she refused to agree to her husband’s demands'-concerning the trust-fund.' Mrs. Prothro filed an answer in the California proceeding' and she was granted an interlocutory decree ■'Which was entered in September, 19>52.: This decree became .final in September, 1953. Mrs. Prothro argues that she was advised by counsel in - California that-,, if -she did hot file an answer in the divorce proceeding, Mr: Prothro .would be granted an interlocutory decree.. The annulment proceeding-'now-.before--us was filed in,the Simpsons Circuit Court, .in August; 1952;¡ -The1 California proceeding was then pending.' • • ¡

It is the contention1 of Mrs. Prothro that a marriage can be annulled only in the county and state' in which the marriage was *40performed and in which the license for the marriage was issued; and further that,, since the Simpson Circuit Court has jurisdiction of .¡the subject - matter,, .‘service through a warning, order .attorney is suffi- • cient.

We think the opinion in the case of Gayle v. Gayle, 301 Ky. 613, 192 S.W.2d 821, is controlling here. In that case the' annulment action was instituted by the wife in Jefferson Coulity. ' The marriage had been, performed in New York. The husband Was' a nonresident. He.was before the court by constructive service only. Wé, affirmed'the' judgment of the cháncéllor 'on the 'ground that the.husband wa's1 never served within the territorial limits of the 'courts jurisdiction, nor had he entered his áppearance in the action., Mrs. Prothro was before the. California 'Court J, The question she raised in her annulment proceeding in Simpson1' County could'have been raiséd in the California court.

Judgmént reverséd,'with" directions to set it aside, and for the 'entry of a judgment consistent with this opinion.