Saalfeld v. Saalfeld , 86 Ohio App. 225 ( 1949 )

This is an appeal from a decree of divorce entered by the Court of Common Pleas of Clermont County.

The contention of the defendant appellant is that the plaintiff had not acquired a bona fide residence in Ohio for one year prior to the filing of her petition for divorce, as required by Section 11980, General Code, which, in part, provides that, "except in an action for alimony alone, the plaintiff must have been a resident of the state at least one year before filing the petition."

The residence required is domiciliary in character (Glassman v.Glassman, 75 Ohio App. 47, 60 N.E.2d 716), that is, the residence for one year prior to the filing of a petition for divorce must be accompanied by an intention of plaintiff to make Ohio his permanent home. A temporary residence, unaccompanied by such intention, no matter how long it may be extended, is ineffective to present compliance with the requirements of the statute. When it appears that a person has an established domicile, the presumption of fact is that such domicile continues. In order to dissipate such presumption, it is necessary to prove by a preponderance of the evidence that such person has (1) intended to change such domicile, (2) has intended to select a new domicile, and (3) has accompanied such intention with acts indicating a bona fide selection of a new domicile.Village of Indian Hill v. Atkins (July 5, 1949), No. 7109, Court of Appeals for Hamilton county.

Every person must be domiciled somewhere. Until a new domicile is selected and occupied as such, the status in the original domicile is retained. Atkins case, supra. In the instant case, the plaintiff was unquestionably domiciled prior to 1942 in Sistersville, West Virginia. She came to Ohio and began a course of nursing training in Christ Hospital in the city of Cincinnati August 25, 1942. She remained in training until February 1946. She married the defendant in Kentucky March 17, 1946. The defendant was domiciled in Kentucky at that time, and has always retained such domicile. Plaintiff traveled from one army camp to another with her husband, who was a captain in the air corps. No permanent domicile was acquired by the plaintiff during that period.

In October 1948, plaintiff and her husband acquired a domicile in Clermont county, Ohio. The petition was filed December 10, 1948. The issue involving the domicile of the plaintiff hinges upon her intention at the time she was in nurses training in Cincinnati. She was asked by the court, "Now you claim you are a resident of the state of Ohio since 1942?" Her answer was, "Yes, sir." This is no stronger than the sworn allegations of her petition. No corroborative evidence appears in the record. On the contrary, it appears that as late as 1948 she was attempting to vote in West Virginia, which is entirely inconsistent with a conviction that she was a resident of Ohio, that is, domiciled therein. Certainly, if she had retained a consistent intent that Ohio should be her permanent home, she would not have considered voting in West Virginia.

The evidence leaves much to be desired in the way of certainty and scope. It leaves the court in a state of uncertainty, and, in view of the burden resting upon the plaintiff to sustain the proof of her statutory residence in Ohio for one year prior to filing her petition, it must be concluded that such evidence as appears in the record renders the decree of the court one not sustained by the weight of the evidence, but contrary thereto.

The case of Glassman v. Glassman, supra, has been cited by counsel. It is to be noted that in that case the wife entered the court with a presumption of jurisdictional domicile in her favor, and that no evidence was introduced to show that such domicile had been relinquished — the sole reason for the holding of the trial court that it had no jurisdiction over plaintiff being the two fictions, (1) that the soldier husband retained the domicile possessed upon entering the service and (2) the common-law fiction that the wife takes the domicile of her husband on marriage. The holding in the Glassman case is that a clear, factual situation showing bona fide domicile cannot be set aside by fictions, if such course will produce an injustice.

In the instant case, the evidence does show that the plaintiff at the time of filing her petition had been domiciled in Clermont county for some months, but for less than a year.

In view of the evidence showing an actual residence in Ohio for four years or more, the domicile of the plaintiff at the time of filing the petition and her positive declaration in the record that Ohio has been her permanent home, it is the conclusion of this court that it would not be justified in entering judgment for defendant, but, on the contrary, that the judgment of the trial court should be reversed and the cause remanded for a new trial, which is so ordered.

Judgment reversed.

ROSS, P.J., HILDEBRANT and MATTHEWS, JJ., concur in the syllabus, opinion and judgment.