Coleman v. Coleman

• Decision Date: 15 December 1972
• Docket Number: No. 72-201,72-201
• Parties: , 57 A.L.R.3d 213, 61 O.O.2d 406 COLEMAN, Appellant, v. COLEMAN, Appellee.
• Court: Ohio Supreme Court

Page 155

32 Ohio St.2d 155

291 N.E.2d 530, 57 A.L.R.3d 213, 61 O.O.2d 406

COLEMAN, Appellant, v. COLEMAN, Appellee.

No. 72-201.

Supreme Court of Ohio.

Dec. 15, 1972.

Syllabus by the Court

1. Divorce is a privilege created by state statute, and the power of the General Assembly over the civil status of marriage and its dissolution is limited only to the extent that it is not violative of the Ohio or United States Constitution.

2. The one-year residency requirement in R.C. § 3105.03 is not violative of either the Ohio or the United States Constitution.

This cause arose from the dismissal, by the Court of Common Pleas of Summit County, of a complaint filed by Louise C. Coleman, plaintiff-appellant, for a divorce from her husband, Joseph E. Coleman, defendant-appellee.

The complaint alleges that plaintiff and her husband were married on January 15, 1956, at Ozone Park, New York; that four children, presently in the custody of plaintiff, are issue of the marriage; that defendant has threatened plaintiff and the children; and that defendant has been guilty of gross neglect of duty and extreme cruelty. Plaintiff prayed for a divorce, custody of the minor children, alimony and support, and other equitable relief.

Plaintiff alleges further that she has been a bona fide resident of Ohio since December 1969. The complaint was filed August 21, 1970, less than one year after plaintiff had moved to Ohio from New York. Service of process was obtained upon defendant in New York by certified mail. No answer or appearance was interposed by defendant.

Temporary restraining and custody orders were issued on August 21, 1970, and this matter was heard as an uncontested case on December 30, 1970. Upon questioning by the court, plaintiff admitted not having a year's residence at the time of filing as required by R.C. § 3105.03. No request for leave of court to amend the complaint having been filed, the court dismissed the case on the ground that plaintiff was not a resident of the state of Ohio for a year prior to the filing of her complaint.

The Court of Appeals affirmed the judgment of the Court of Common Pleas. The cause is now before this court pursuant to allowance of a motion to certify the record.

Patricia A. Vance, Akron, for appellant.

No appearance for appellee.

STERN, Justice.

This case involves the constitutionality of the first sentence of R.C. § 3105.03, which provides:

'Except in an action for alimony alone, the plaintiff in actions for divorce and annulment shall have been a resident of the state at least one year immediately before filing the petition.' This sentence, among other things, creates a substantive one-year durational residency requirement for all residents of Ohio who desire to obtain a divorce decree from Ohio courts. At the time of filing, appellant did not meet this requirement. ¹

There is little question that the one-year durational residency requirement imposes: (1) that the person be a resident of Ohio, and (2) that the person have been a resident of Ohio at least one year immediately before filing the petition. In Shapiro v. Thompson (1969), 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 the Supreme Court of the United States, in holding that a one-year durational residency requirement relating to receiving welfare assistance was an unconstitutional denial of equal protection and due process, rejected the traditional 'rational relationship' test in favor of a 'compelling governmental interest' test. ²

Subsequent to Shapiro, the question arose as to how much significance should be given the nature of the privilege or right being withheld during the qualifying period. The Supreme Court, in Dunn v. Blumstein (1972), 405 U.S. 330, 338, 92 S.Ct. 995, 1001, 31 L.Ed.2d 274, after holding that the 'compelling state interest' test must be met by any statute which places a condition of the exercise of the right to vote, noted that 'this exacting test is appropriate for another reason * * *. The durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.'

After noting that "freedom to travel throughout the United States has long been recognized as a basic right under the Constitution," and that 'freedom to travel includes the 'freedom to enter and abide in any State in the Union," the court, in regard to the nature of the right or privilege being, withheld, stated, at page 339, 92 S.Ct. at page 1001:

'It is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other 'right to travel' cases in this Court always relied on the presence of actual deterrence. In Shapiro we explicitly stated that the compelling state interest test would be triggered by 'any classification which serves to penalize the exercise of that right (to travel) * * *."

The court concluded, at page 342, 92 S.Ct. at page 1003, that:

'* * * durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are 'necessary to promote a compelling governmental interest."

The Supreme Court of the United States, in Shapiro, supra, 394 U.S. at page 638, 89 S.Ct. at 1333 noted, in footnote 21, that durational residency requirements may 'promote compelling state interest on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel.' We must then examine the Ohio one-year durational residency requirement as applied to divorce in this light.

In both Shapiro and Dunn, the court found that the durational residency requirements constituted penalties upon the exercise of the right of interstate travel. The penalty was that the person who exercised the right to travel was temporarily deprived of the privilege of receiving welfare and the right to vote. The privilege to receive welfare and the right to vote, however, are different from the privilege to obtain a divorce.

Welfare represents the only means for some persons to 'obtain the very means to subsist-food, shelter, and other necessities of life' (Shapiro, supra, at 627, 89 S.Ct. at 1327); the right to vote for candidates for public office and issues is a basic constitutional right afforded by the federal and state constitutions.

The privilege of obtaining a divorce is not a basic need, Whitehead v. Whitehead (Hawaii 1972), 492 P.2d 939 945, ³ nor, in this instance ⁴ is it surrounded by any urgent need. ⁵

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. We hold that a person's right to interstate travel is not penalized by the requirement of R.C. § 3105.03.

Further, the state does have a compelling interest ⁶ in overseeing its diBoddie v. Connecticut ⁷ (1970), 401 U.S. vorce and marriage laws. As stated in 371, 376, 383, 91 S.Ct. 780, 785, 788, 28 L.Ed.2d 113, 'marriage involves interests of basic importance in our society,' and is 'a fundamental human relationship.' This does not dispute the established fact that states alone have the prerogative of creating and overseeing this important institution. Pennoyer v. Neff (1877), 95 U.S. 714, 722, 734, 24 L.Ed. 565; Boddie v. Connecticut, supra; Wymelenberg v. Syman (1971), 328 F.Supp. 1353; Place v. Place (Vt.1971), 278 A.2d 710; Whitehead v. Whitehead, supra.

Black's Law Dictionary (4 Ed.) defines 'compel' as 'to force * * * to oblige.' A compelling state interest therefore must be one which the state is forced or obliged to protect. In exercising the prerogative of prescribing and enforcing laws governing the marital status only of residents of Ohio, this state assumes the obligation of insuring their availability to residents of Ohio, and, lacking jurisdiction to prescribe or enforce marriage laws for nonresidents, Ohio must insure that its laws are not applied to nonresidents. The effect which such laws will have over the stability of marriage cannot be ignored, and, inasmuch as the privilege to marry would not have been granted had the state not intended such relationship to be harmonious and long standing, the state has an obligation to uphold marital harmony. Marriage is a device intended to perpetuate family groups within the larger social entitles of which each marital unit is a part.

The General Assembly, in enacting R.C. § 3105.03, was aware of the increased mobility of persons within this country, and it is not necessary that applicants for divorce have been married in Ohio, or that the cause of action occur in Ohio, or that both parties reside in Ohio. There is no evidence, as existed in Shapiro, supra, that the Ohio one-year durational residency requirement was designed to prevent unwanted persons from entering the state. This requirement has existed since 1853. 51 Ohio Laws 379. See Whitehead v. Whitehead, supra. Indeed, the Ohio one-year durational residency requirement does not prevent persons wanting a divorce from moving to Ohio; it even excepts from the one-year residency requirement actions for alimony alone, thus providing for basic needs which might exist. ⁸ It does provide a reasonable ⁹ deferral of application for divorce, thus encouraging a new examination of the marriage to see if the move itself has resolved the differences. Place v. Place, supra (278 A.2d 710).

There is no question that R.C. § 3105.03 does promote the state's obligation to insure that its laws regarding marriage and its final dissolution are not exercised over nonresidents. However, it is argued that this obligation is accomplished by the first segment of the residency requirement (i. e., that a person be a resident), and that residency can be established by some other less intrusive manner...