Barth v. Barth, Unpublished Decision (3-9-2006) , 2006 Ohio 1094 ( 2006 )

{¶ 43} I respectfully dissent. I would find that the Cuyahoga County Domestic Relations Court lacks subject matter jurisdiction because appellee-wife has not been a "resident of the state at least six months immediately before filing the complaint" as required by R.C. 3105.03.

{¶ 44} The evidence shows that Husband and Wife moved to Ohio in 1994 and resided here until Husband accepted a job in California. Wife testified that "they made a decision together" to move to California. Husband moved to California in February 2004 and Wife stayed behind to "wrap up" matters in Ohio. She sold the Ohio residence, closed bank accounts, and shipped their household belongings to California. In June 2004, Wife moved to California with the children. She had the utilities connected at the California residence, began a newspaper subscription, applied for library cards for herself and the children, changed addresses on her credit cards, planned to change her driver's license, signed up her daughter for swimming lessons, sought a teaching job with various schools, and scheduled doctor appointments. After learning of Husband's extramarital affair, Wife left California on August 21, 2004 and returned to Ohio on August 23. She filed for divorce in Ohio on August 24, and Husband filed in California on August 25.

{¶ 45} "A person effectively changes her domicile when she actually abandons the first domicile, coupled with the intention not to return to it, and acquires a new domicile." Polakova v.Polak (1995), 107 Ohio App.3d 745, citing Winnard v. Winnard (1939), 62 Ohio App.3d 351, 23 N.E.2d 977.

{¶ 46} It is clear from the testimony of both Husband and Wife that Wife had the intent to abandon Ohio and to make California her new domicile, until she learned of the alleged affair. All the actions taken by Wife furthered her intent. Wife contends that she did not act voluntarily in moving to California, but instead was fraudulently induced. However, there is no evidence that she did not act willingly in moving to California.

{¶ 47} Therefore, I would find that the trial court erred in finding that it had subject matter jurisdiction. The evidence shows that Wife did not reside in Ohio six months immediately prior to filing the divorce petition. The complaint should be dismissed for lack of subject matter jurisdiction. Thus, I would reverse.