Mullinix v. Mullinix , 2023 Ohio 1053 ( 2023 )

[Cite as Mullinix v. Mullinix, 2023-Ohio-1053.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Logan E. Mullinix, :
Plaintiff-Appellee, : No. 22AP-491
(C.P.C. No. 17DR-0399)
v. :
(REGULAR CALENDAR)
Pamela R. Mullinix, :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 30, 2023
On brief: Logan E. Mullinix, pro se.
On brief: Marc Fagin, for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
BOGGS, J.
{¶ 1} Defendant-appellant, Pamela R. Mullinix, appeals the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, which denied her
post-decree motion to dismiss, amended motion to dismiss, and motion for summary
judgment in this divorce proceeding. For the following reasons, we affirm the trial court’s
judgment.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} Pamela and plaintiff-appellee, Logan E. Mullinix, were married in September
1988. Logan initiated this action by filing a complaint for divorce in February 2017. In his
complaint, Logan identified his address as 7376 Tumblebrook Drive in New Albany, Ohio.
He alleged that he had been an Ohio resident for more than six months immediately
preceding the filing of his complaint and had been a resident of Franklin County for more
than 90 days immediately preceding the filing of his complaint. In her answer, Pamela
No. 22AP-491 2
admitted Logan’s factual allegations about his residence. With her answer, Pamela also
filed a counterclaim for divorce in which she alleged that she had been an Ohio resident for
at least the immediately preceding six months.
{¶ 3} On May 11, 2018, the matter came before the trial court on both Logan’s
complaint and Pamela’s counterclaim for divorce, and the trial court filed an Agreed Entry
and Decree of Divorce (“agreed entry”), signed by both parties and their attorneys. The
agreed entry states that “[b]oth parties were residents of Ohio for more than six months
* * * immediately preceding the filing of the complaint,” that the court “has jurisdiction to
determine all of the issues raised by the pleadings,” and that the parties had stipulated that
venue was proper in Franklin County. (May 11, 2018 Agreed Entry & Decree of Divorce at
1.) The agreed entry awards a judgment of divorce to both Logan and Pamela. Neither
party appealed the judgment.
{¶ 4} Since the filing of the agreed entry in May 2018, this matter has come before
the trial court on numerous motions, including motions for contempt, to compel discovery,
for protective orders, and for attorney fees. Pamela has also attempted on multiple
occasions to have the agreed entry set aside and/or to have the entire case dismissed. The
trial court aptly characterized the litigation as “tumultuous.” (July 11, 2022 Decision &
Jgmt. Entry at 1.)
{¶ 5} Pamela first attempted to have the agreed entry set aside in May 2019 by
filing a Civ.R. 60(B) motion for relief from judgment. Pamela argued that Logan had
repeatedly failed to meet his obligation under the agreed entry to pay the mortgage on the
marital home, that Logan had misrepresented the value of his personal property, and that
based on the purportedly false assumption that she received a greater proportion of the
marital property, she should have been entitled to spousal support. Following Pamela’s
presentation of evidence at a hearing on her Civ.R. 60(B) motion, the trial court granted
Logan’s oral motion to dismiss the motion. This court affirmed the trial court’s judgment
in Mullinix v. Mullinix, 10th Dist. No. 21AP-206, 2022-Ohio-3398.
{¶ 6} In December 2021, Pamela again asked the trial court to set aside the agreed
entry, this time by filing a motion to dismiss, pursuant to Civ.R. 12(B)(1) and (3). There,
for the first time, Pamela argued that the trial court lacked subject-matter jurisdiction over
this action. Contrary to her admission in her answer and to the stipulation in the agreed
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entry, Pamela argued that Logan had not been a resident of Ohio for at least six months
immediately preceding the filing of his complaint, as required by R.C. 3105.03.1 She
claimed that Logan left the marital residence in New Albany at the end of August 2016,
moved to Tennessee, and never returned. She also alleged that Logan obtained a Tennessee
driver’s license in December 2016, purportedly based on a declaration of residency in that
state. To preemptively discredit anticipated defenses, Pamela argued that res judicata,
waiver, and estoppel are inapplicable because the trial court did not “factually determine[]
the prerequisites for either jurisdiction or venue in the first place.” (Dec. 6, 2021 Mot. to
Dismiss at 3.)
{¶ 7} Pamela filed an amended motion to dismiss in May 2022. The amended
motion incorporated by reference the original motion to dismiss, but it also included an
additional claim for attorney fees that Pamela had incurred from the inception of this case.
{¶ 8} In February 2022, Pamela filed a motion for summary judgment “on her
Motion to Dismiss,” again arguing that the trial court lacked subject-matter jurisdiction
over the divorce action. (Feb. 17, 2022 Mot. for Summ. Jgmt. at 1.) Although the motion
for summary judgment restated the legal arguments raised in her motion to dismiss,
Pamela supported her motion for summary judgment with additional evidence—including
Logan’s deposition testimony, Logan’s Tennessee driver’s license, and Logan’s Tennessee
Business Tax License—to bolster her claim that Logan has been a resident of Tennessee
since late 2016. As a result of the claimed lack of jurisdiction, Pamela argued that the
divorce action was void ab initio.
{¶ 9} The trial court denied Pamela’s motion to dismiss, amended motion to
dismiss, and motion for summary judgment. It first held that Pamela’s motions were
procedurally improper because motions to dismiss pursuant to Civ.R. 12 and for summary
judgment pursuant to Civ.R. 56 are motions for pretrial remedies that cannot be granted
post-judgment. Nevertheless, the court went on to consider and to reject the merits of
Pamela’s jurisdictional argument as if she had raised it in a motion to vacate the court’s
judgment. After noting its statutory jurisdiction over divorce actions generally, pursuant
to R.C. 3105.011, the court stated, “According to the record, affidavits filed, admission from
1She likewise contended that venue was improper in Franklin County under Civ.R. 3(C)(9), because Logan
had not been a resident of the county for 90 days immediately prior to filing for divorce.
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[Pamela], stipulations, and representations made to this Court at the time of the Agreed
Decree the parties were both residents in the state of Ohio at least six months prior to filing
the Complaint.” (Emphasis sic.) (July 11, 2022 Decision & Jgmt. Entry at 5.) It went on to
state that, even if Logan was not a resident of the state immediately preceding the filing of
his complaint, Pamela was an Ohio resident and properly invoked the court’s jurisdiction
by filing her counterclaim. Id. Accordingly, the court concluded that it had jurisdiction to
grant the parties a divorce.
{¶ 10} Pamela has appealed the trial court’s judgment. In her single assignment of
error, she states that the trial court erred by denying her motion to dismiss, amended
motion to dismiss, and motion for summary judgment.
II. ANALYSIS
{¶ 11} Pamela raises numerous issues under her assignment of error, but the crux
of her argument is that pursuant to R.C. 3105.03, the trial court lacked subject-matter
jurisdiction because Logan was not an Ohio resident for six months immediately preceding
the filing of his complaint.
A. Final Appealable Order
{¶ 12} Before turning to the question of the trial court’s jurisdiction, we first
consider our own. Ohio’s courts of appeals have jurisdiction “to review and affirm, modify,
or reverse judgments or final orders.” Article IV, Section 3(B)(2), Ohio Constitution.
R.C. 2505.02(B) defines “final order” as including “[a]n order that affects a substantial right
made in a special proceeding or upon a summary application in an action after judgment.”
R.C. 2505.02(B)(2).
{¶ 13} If an appeal is taken from an order that is not a final appealable order, the
appellate court lacks jurisdiction and must dismiss the appeal. In re D.P., 10th Dist. No.
06AP-179, 2006-Ohio-5098, ¶ 6. Even if neither party raises a jurisdictional question, we
must sua sponte dismiss an appeal if it is not taken from a final appealable order or
judgment. See Whitaker-Merrell v. Geupel Co., 29 Ohio St.2d 184, 186 (1972).
{¶ 14} Pamela appeals the trial court’s entry denying her motions to dismiss and for
summary judgment. Generally, neither the denial of a motion to dismiss nor the denial of
a motion for summary judgment constitutes a final appealable order. State Auto. Mut. Ins.
Co. v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, ¶ 8, citing Polikoff v.
No. 22AP-491 5
Adam, 67 Ohio St.3d 100, 103 (1993); State ex rel. Overmeyer v. Walinski, 8 Ohio St.2d 23(1966), citing Priester v. State Foundry Co., 172 Ohio St. 28 (1961). That general rule
applies “with ‘equal force’ ” to decisions denying motions based on an alleged lack of
personal or subject-matter jurisdiction. Cooney v. Radostitz, 8th Dist. No. 110009, 2021-
Ohio-2521, ¶ 16. For example, in Copenhaver v. Copenhaver, 4th Dist. No. 05CA16, 2005-
Ohio-4322, ¶ 7, the court of appeals held that the denial of a motion to dismiss a divorce
action for lack of jurisdiction under R.C. 3105.03 was not a final appealable order. See also
Curie v. Curie, 11th Dist. No. 2004-A-0047, 2004-Ohio-3682.
{¶ 15} A final order includes “[a]n order that affects a substantial right made in a
special proceeding or upon a summary application in an action after judgment.”
R.C. 2505.02(B)(2). Divorce qualifies as a special proceeding, Thomasson v. Thomasson,
153 Ohio St.3d 398, 2018-Ohio-2417, ¶ 12, citing Wilhelm-Kissinger v. Kissinger, 129 Ohio
St.3d 90, 2011-Ohio-2317, ¶ 6, and a party has a substantial right to have a dispute
adjudicated by a court of competent jurisdiction. Copenhaver at ¶ 5. At least one Ohio
appellate court has also held that an order denying relief from judgment in a domestic
relations case is an order upon a summary application in an action after judgment.
Quesinberry v. Quesinberry, 2d Dist. No. 29192, 2021-Ohio-4680, ¶ 22. Appellate courts
have nevertheless held that a trial court’s denial of a motion challenging its jurisdiction does
not affect a substantial right. See Haskins v. Haskins, 104 Ohio App.3d 58, 61 (2d Dist.
1995). An order “affects a substantial right for purposes of R.C. 2505.02(B)(2) only if ‘in
the absence of immediate review of the order [the appellant] will be denied effective relief
in the future.’ ” Thomasson at ¶ 10, quoting Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60,
63 (1993). That rationale, however, does not apply in the same way when, as here, a party
challenges the trial court’s jurisdiction post-judgment, when the merits of the parties’
claims have already been adjudicated and the time for appeal has run. See Quesinberry at
¶ 26 (When considering the finality of a denial of relief from judgment, “[a]sking whether
a party must await final judgment to appeal * * * does not make much sense.”).
{¶ 16} The trial court here found Pamela’s motions procedurally defective, stating
that motions to dismiss and for summary judgment seek remedies that may be granted only
No. 22AP-491 6
prior to trial or judgment.2 But rather than simply denying Pamela’s motion on that
ground, the trial court considered the merits of Pamela’s jurisdictional claim as if it were
properly raised in a motion to vacate. A judgment denying a motion to vacate or for relief
from judgment is a final appealable order. Colley v. Bazell, 64 Ohio St.2d 243, 245 (1980),
citing Greenspahn v. Joseph E. Seagram & Sons, Inc., 186 F.2d 616 (2d Cir.1951); Russell
v. Cunningham, 279 F.2d 797 (9th Cir.1960); 7 Moore, Federal Practice, Paragraph
60.30[3] (2d Ed.); McCormac, Ohio Civil Rules Practice (1980 Supp.), 101, Section 13-27.
It “puts an end to any further action by the [trial] court and leaves [the court’s] judgment
in full force and effect.” Greenspahn at 619. Thus, in Quesinberry, the Second District
concluded that an immediate appeal was necessary when the trial court denied a motion to
vacate a decree of dissolution, noting both that it would be “inequitable and impracticable”
to make the appellant wait until there were no matters pending in the trial court, and also
that matters that might arise in the future would depend on the validity of the decree. Id.
at 29. The same considerations weigh in favor of an immediate appeal here. Accordingly,
we conclude that the trial court’s judgment, rejecting Pamela’s challenges to the trial court’s
jurisdiction, was a final appealable order, which we may review.
B. Jurisdiction of Domestic Relations Courts
{¶ 17} “Divorce is a creature of state statute, and the power of the General Assembly
over the entire subject of marriage, as a civil status, and its dissolution, is unlimited except
as restricted by the state and federal constitutions.” Coleman v. Coleman, 32 Ohio St.2d
155, 159 (1972). The General Assembly has granted to courts of common pleas, including
domestic relations divisions of those courts, “full equitable powers and jurisdiction
appropriate to the determination of all domestic relations matters,” including claims for
divorce. R.C. 3105.011(A). See also Terry v. Terry, 10th Dist. No. 77AP-603, 1977 Ohio
App. LEXIS 7433, *7 (Dec. 22, 1977).
2 Pamela challenges the trial court’s procedural determination, citing Civ.R. 75(A), which states that, except
as modified or excepted in Civ.R. 75, the Rules of Civil Procedure apply in divorce proceedings. She also cites
Civ.R. 75(J), which provides for invocation of the domestic relations court’s continuing jurisdiction. Neither
provision, however, authorizes the consideration of a pretrial motion during post-judgment proceedings. We
also find unpersuasive Pamela’s unsupported argument that she was entitled to a trial on her motion to
dismiss and that, therefore, her motion for summary judgment was a pretrial motion. (See Appellant’s Brief
at 9-10.)
No. 22AP-491 7
{¶ 18} R.C. 3105.03, which governs residency requirements for divorce actions in
Ohio, states, in part:
The plaintiff in actions for divorce and annulment shall have
been a resident of the state at least six months immediately
before filing the complaint. Actions for divorce and annulment
shall be brought in the proper county for commencement of
action pursuant to the Rules of Civil Procedure.
For purposes of R.C. 3105.03, “resident” means “ ‘one who possesses a domiciliary
residence, a residence accompanied by an intention to make the state of Ohio a permanent
home.’ ” (Emphasis sic.) Barth v. Barth, 113 Ohio St.3d 27, 2007-Ohio-973, ¶ 12, quoting
Coleman at 162. The Supreme Court of Ohio has held that the statutory language of
R.C. 3105.03 is unambiguous and has directed courts to apply that language strictly and
without interpretation. Id. at ¶ 11.
{¶ 19} The residency requirement in R.C. 3105.03 is a jurisdictional requirement.
Thomas v. Thomas, 10th Dist. No. 03AP-1106, 2004-Ohio-2136, ¶ 4, citing Weightman v.
Weightman, 10th Dist. No. 98AP-1021, 1999 Ohio App. LEXIS 2190, *4 (May 13, 1999). In
both Thomas and Weightman, we treated compliance with R.C. 3105.03 as a prerequisite
to the trial court’s subject-matter jurisdiction, noting that a judgment rendered by a court
that lacks subject-matter jurisdiction is void. Thomas at ¶ 4, citing Patton v. Diemer, 35
Ohio St.3d 68 (1988), paragraph three of the syllabus; Weightman at *4. “[I]f the plaintiff
in a divorce action fails to satisfy the residency requirement[], the trial court has no
authority to grant a decree of divorce in the action.” Thomas at ¶ 4, citing McMaken v.
McMaken, 96 Ohio App.3d 402, 405 (2d Dist.1994). Lack of subject-matter jurisdiction is
not a waivable defense. In re Claim of King, 62 Ohio St.2d 87, 89 (1980).
C. Parties May Stipulate to Facts Giving Rise to Jurisdiction
{¶ 20} Parties to an action may not confer jurisdiction on a court by mutual consent.
Beatrice Foods Co. v. Porterfield, 30 Ohio St.2d 50, 54 (1972). They may, however,
stipulate to facts that are sufficient to confer jurisdiction on the court. Id.{¶ 21} Beatrice Foods concerned the First District Court of Appeals’ jurisdiction
over an appeal from the Board of Tax Appeals. The notice of appeal set out facts that, if
true, were sufficient to establish that the court had subject-matter jurisdiction over the
appeal pursuant to R.C. 5717.04. After the court of appeals sua sponte raised the question
No. 22AP-491 8
of its jurisdiction, the parties filed a stipulation verifying the jurisdictional facts contained
in the notice of appeal, i.e., that the corporate taxpayer’s principal place of business and the
residence of its statutory agent were in Hamilton County. Despite the parties’ stipulation,
the court of appeals determined that the testimony and exhibits did not substantiate the
jurisdictional assertions in the notice of appeal, and it dismissed the appeal. The Supreme
Court reversed, holding that the parties’ stipulation “remove[d] from the court’s
consideration any question or controversy concerning the jurisdictional statement
contained in the notice of appeal.” Id. In other words, a stipulation to the truth of facts
necessary to establish the court’s jurisdiction “may suffice to confer jurisdiction through
estoppel.” In re Palmer, 12 Ohio St.3d 194, 196 (1984), citing Beatrice Foods, paragraph
one of the syllabus. Ohio courts of appeals, including this court, have applied the holding
of Beatrice Foods to cases in which a defendant has raised a jurisdictional challenge based
on nonsatisfaction of the statutory residency requirement for a divorce action. See, e.g.,
Kaydo v. Kaydo, 11th Dist. No. 2002-L-021, 2022-Ohio-4055, ¶ 34 (judgment not void for
lack of subject-matter jurisdiction when defendant’s withdrawal of motion to dismiss left
plaintiff’s allegations regarding Ohio residency uncontested and effectively admitted);
Weber v. Devanney, 9th Dist. No. 28876, 2018-Ohio-4012, ¶ 13-15 (trial court did not err
in determining it had jurisdiction in light of wife’s admission to factual allegations and
parties’ stipulation); Weightman; Sturgill v. Sturgill, 61 Ohio App.3d 94 (2d Dist.1989)
(defendant estopped from challenging subject-matter jurisdiction because he had admitted
jurisdictional facts in his answer and had not appealed the divorce decree.).
{¶ 22} This court’s decision in Weightman is particularly instructive here. In her
complaint for divorce, Donna Weightman alleged that she had been a resident of Ohio for
more than six months and a resident of Franklin County for more than 90 days immediately
preceding the filing of her complaint. Her husband, Brian Weightman, did not file a
responsive pleading, did not appear for the final hearing, and did not appeal the decree of
divorce. Five years later, however, Brian filed a motion for relief from judgment, arguing
that the trial court had not possessed subject-matter jurisdiction over the action because
Donna had not resided in Ohio for six months immediately preceding the filing of her
complaint. The trial court denied Brian’s motion, and he appealed.
No. 22AP-491 9
{¶ 23} In affirming the trial court’s judgment, we stated that “a litigant may not
collaterally attack a divorce decree based upon the lack of subject matter jurisdiction * * *
when the factual predicate for such jurisdiction was originally admitted.” Weightman at
*5. We held:
In her original complaint, [Donna] alleged facts satisfying the
residency requirements. [Brian] was served with a copy of this
complaint but never filed an answer. As such, [Brian] admitted
the factual allegations that conferred subject matter
jurisdiction over the divorce decree. Moreover, [Brian] failed to
appeal the original divorce decree, which specifically held that
the residency requirements had been satisfied. As such, * * * we
hold that [Brian] is estopped from challenging the subject
matter jurisdiction of the trial court over the original divorce
decree.
Id. at *6-7.
{¶ 24} As Pamela points out in her appellate brief, this court did refuse to apply the
rule from Beatrice Foods in Thomas. There, Theresa Thomas filed a complaint for divorce
on February 7, 2002, and in a contemporaneously filed custody affidavit, stated that she
had been an Ohio resident since August 1, 2001. Her husband, Ronald Thomas, initially
admitted the jurisdictional facts alleged by Theresa, but he later challenged the court’s
jurisdiction in an amended answer and motion to dismiss, in which he claimed that Theresa
had not been a resident of Ohio for six months before filing her complaint. Specifically,
Ronald argued that Theresa did not move to Ohio on August 1, 2001, as stated in her
custody affidavit. The trial court granted Ronald’s motion to dismiss, and this court
affirmed that judgment. We stated that there was no dispute that Theresa had not been an
Ohio resident for at least six months before filing her complaint for divorce and that absent
a convincing reason why Ronald should not have been able to raise lack of jurisdiction in
his motion to dismiss, “there can be no dispute that the trial court lacked subject-matter
jurisdiction.” Thomas at ¶ 5.
{¶ 25} In Thomas, we rejected Theresa’s argument that Ronald’s admissions in his
original answer and counterclaim for divorce precluded him from challenging the trial
court’s jurisdiction. We specifically distinguished Thomas from Sturgill and Beatrice
Foods. We distinguished Sturgill on the basis that the defendant there did not challenge
the trial court’s jurisdiction until after judgment, in a collateral attack, whereas Ronald filed
No. 22AP-491 10
his motion to dismiss prior to the trial court issuing any final decree. We distinguished
Beatrice Foods because Ronald’s initial admission to jurisdictional facts was based upon
Theresa’s false statement of the date on which she moved to Ohio, which Ronald did not
then know was false. We held:
[Theresa] has not presented any convincing argument or
authority as to why [Ronald] should have been prevented from
raising the issue of subject-matter jurisdiction, which the trial
court indisputably lacked. Although [Ronald] admitted to the
jurisdictional allegation in his answer, he did so based upon the
inaccurate allegations in the complaint and [Theresa’s] false
affidavit. Further, [Ronald] filed his amended answer and
motion to dismiss immediately after retaining new counsel and
discovering [Theresa] did not move to Ohio on August 1, 2001.
Also, the action never proceeded to final judgment, and
[Theresa] did not unfairly rely upon the finality of any
judgment.
Thomas at ¶ 12.
{¶ 26} This case is not similarly distinguishable from Beatrice Foods. Even
assuming that Logan’s allegation that he had been an Ohio resident for at least six months
immediately preceding the filing of his complaint was untruthful, Pamela cannot claim that
she was unaware of that untruthfulness when she filed her answer, admitting to Logan’s
allegations regarding his residency, and authorized the agreed entry. To the contrary, her
own evidence belies any such suggestion. Pamela’s affidavit filed in support of her motion
for summary judgment suggests her belief that Logan intended to remain in Tennessee
when he moved out of the marital home in August 2016. Pamela stated that Logan planned
in the summer of 2016 that he would move to Tennessee to start an engineering consulting
business with a friend, that she and the parties’ daughter would permanently join him in
Tennessee once the marital residence had been sold, and that in August 2016 Logan took
with him enough clothing and personal effects to live in Tennessee indefinitely. In
November 2016, Pamela became aware that Logan had consulted a divorce attorney, and
she refused to meet Logan at the attorney’s office. Yet despite that knowledge, Pamela
admitted to Logan’s allegations that he had been an Ohio resident for more than six months
immediately preceding the filing of his complaint and a Franklin County resident for more
the 90 days immediately preceding the filing of his complaint. She also stipulated in the
agreed entry to the propriety of venue in Franklin County, to the trial court’s jurisdiction,
No. 22AP-491 11
and to the facts giving rise to that jurisdiction. Accordingly, we conclude that it is Thomas,
not Beatrice Foods, that is distinguishable from this case.
{¶ 27} Pamela next argues that the holding of Beatrice Foods is inapplicable here
because Logan’s residence presents a question of law, not a question of fact. In support of
that assertion, she cites Hager v. Hager, 79 Ohio App.3d 239 (2d Dist.1992). There,
Marjean Hager challenged the trial court’s subject-matter jurisdiction over a divorce
complaint filed by her husband Joseph Hager, who was stationed at Wright Patterson Air
Force Base. Following an evidentiary hearing, a referee concluded that Joseph intended to
remain in Ohio after his retirement from the military and that he had established residence
in Ohio for purposes of R.C. 3105.03. On appeal, the Second District stated that “residence”
includes the concept of domicile, “the place to which one intends to return and from which
one has no present purpose to depart.” Hager at 244, citing Smerda v. Smerda, 48 Ohio
Law Abs. 232, *13 (C.P.1947). The court cited an 1878 decision from the Supreme Court
that describes domicile as “the relation[ship] which the law creates between an individual
and a particular locality.” Sturgeon v. Korte, 34 Ohio St. 525, 534 (1878). The Second
District did not, however, suggest that “residence”—or even “domicile”—is a question of
law, rather than a question of fact. Indeed, the court stated that it is the plaintiff’s burden
to establish residency by a preponderance of the evidence, thus reinforcing the factual
nature of that inquiry. Therefore, Pamela’s reliance on Hager is misplaced.
{¶ 28} Ohio appellate courts have specifically held that the question of a party’s
residence and/or domicile presents a question of fact. See Apgar v. McClure, 12th Dist. No.
82-02-0015, 1983 Ohio App. LEXIS 15832, *2 (Apr. 13, 1983) (“Whether or not * * *
domicile existed [in a divorce action] is a question of fact”); Prod. Credit Assn. v. Jackson
Prod. Credit Assn., 4th Dist. No. 380, 1982 Ohio App. LEXIS 14802, *6 (Apr. 29, 1982),
citing 57 Ohio Jurisprudence 2d, Words & Phrases (“Residence is, almost always, a question
of fact”); Drazen v. Drazen, 3d Dist. No. 9-80-44, 1981 Ohio App. LEXIS 12604, *6 (May
8, 1981) (“There was a question of fact for resolution by the trial court and sufficient
evidence of a credible nature * * * that the [plaintiff’s] residency persisted and jurisdiction
existed.”). The Supreme Court of the United States has likewise described domicile, “upon
which depends the power to exert judicial authority,” as a “crucial fact.” (Emphasis added.)
Williams v. North Carolina, 325 U.S. 226, 230 (1945). Consistent with those courts’
No. 22AP-491 12
understandings of residence as a question of fact, we reject Pamela’s attempt to characterize
the question of Logan’s residence as a question of law, as a means to avoid the effect of her
admission. Having admitted and stipulated to facts sufficient to confer on the trial court
jurisdiction over Logan’s complaint for divorce, Pamela may not challenge the trial court’s
jurisdiction in a post-judgment collateral attack.
D. The Trial Court had Jurisdiction Over Pamela’s Counterclaim for
Divorce
{¶ 29} The trial court also held that, even if it did not have jurisdiction over Logan’s
complaint for divorce because Logan was not a resident of Ohio for six months preceding
the filing of his complaint, it had jurisdiction to grant the parties a divorce on Pamela’s
counterclaim because there was no dispute that Pamela was an Ohio resident for the
statutorily required period. In support of its holding, the trial court cited Columbus Metro.
Hous. Auth. v. Flowers, 10th Dist. No. 05AP-87, 2005-Ohio-6615, ¶ 15, in which this court
stated, “As long as the court has jurisdiction of the parties and of the controversy,” a court
may dismiss a complaint and yet retain jurisdiction over a properly asserted counterclaim,
which the defendant may pursue independently.
{¶ 30} Pamela argues that Flowers is inapplicable because the dismissal of the
complaint there was not for lack of jurisdiction; she maintains that if the trial court lacked
jurisdiction over Logan’s complaint, it necessarily lacked jurisdiction over her
counterclaim. (Appellant’s Brief at 54.) We disagree. The relevant question is whether the
trial court had jurisdiction over the parties and over the claim asserted via counterclaim,
independent of the dismissed claim. In Wells Fargo Bank, N.A. v. Wick, 8th Dist. No.
99373, 2013-Ohio-5422, ¶ 13, for example, the trial court dismissed the plaintiff’s
foreclosure claim for lack of jurisdiction based on the bank’s lack of standing, but that
dismissal did not deprive the trial court of jurisdiction over the defendants’ counterclaims
for violations of the Truth in Lending Act, which could remain pending for independent
adjudication. Pamela’s counterclaim for divorce had its own jurisdictional basis—her
residency in Ohio for at least six months immediately prior to the filing of her
counterclaim—that is not affected by any inadequacy in the jurisdictional basis for Logan’s
claim.
{¶ 31} This court touched on this issue, at least implicitly, in Thomas. There, we
stated that the trial court could not have retained jurisdiction over the defendant’s
No. 22AP-491 13
counterclaim for divorce after dismissing the plaintiff’s complaint. Thomas at ¶ 11. But the
reason for that determination was that the defendant had dismissed the counterclaim, not
that dismissal of the complaint for failure to comply with R.C. 3105.03 rendered any
counterclaim void. Id. Here, even had the trial court determined that it lacked jurisdiction
to grant a divorce on Logan’s complaint, it would have had personal jurisdiction over the
parties and subject-matter jurisdiction over Pamela’s counterclaim for divorce.
III. CONCLUSION
{¶ 32} Pamela’s admission of facts sufficient to vest the trial court with jurisdiction
over this action precludes her post-judgment collateral attack. Moreover, the trial court
had jurisdiction to independently grant the parties a divorce on Pamela’s counterclaim.
Therefore, the trial court did not err in denying Pamela’s motion to dismiss, amended
motion to dismiss, and motion for summary judgment. We accordingly affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
BEATTY BLUNT, P.J. and DORRIAN, J., concur.