Bethel Jean Gambee v. Joseph J. Gambee

• Decision Date: 11 August 1983
• Docket Number: 83-LW-4945,82-CA-45
• Parties: BETHEL JEAN GAMBEE Plaintiff-Appellant v. JOSEPH J. GAMBEE Defendant-Appellee CASE
• Court: Ohio Court of Appeals

BETHEL JEAN GAMBEE Plaintiff-Appellant v. JOSEPH J. GAMBEE Defendant-Appellee

No. 82-CA-45.

83-LW-4945 (2nd)

Court of Appeals of Ohio, Second District Greene

August 11, 1983

WILL FRAZEE, 31 West Franklin Street, Centerville, Ohio 45459 Attorney for Plaintiff-Appellant.

DAVID A. HAFFEY, P. O. Box 610, Xenia, Ohio 45385 Attorney for Defendant-Appellee.

OPINION

BROGAN P.J.

Appellant Bethel Jean Gambee appeals from the dismissal of her complaint for divorce and alimony. The trial court dismissed the complaint because of lack of subject matter jurisdiction, to wit, the appellant failed to properly allege that she was a resident of Ohio for six months preceding the filing of her complaint. Appellant asserts two assignments of error.

I.

THE COURT BELOW ERRED IN HOLDING THAT APPELLANT-WIFE, WHO IMMEDIATELY PRIOR TO HER FORTY-EIGHT (48) DAY MARRIAGE TO APPELLEE-HUSBAND, WAS LONG-STANDING GREENE COUNTY AND OHIO RESIDENT, INTENDED TO COMPLETELY ABANDON OR RELINQUISH HER OHIO DOMICILE.

Appellant's verified complaint reads in pertinent part:

1. Comes now the plaintiff and says that she has been a resident of the State of Ohio for 26 years and a resident of the County of Greene for 15 years; that she was temporarily absent from the State of Ohio for 64 days, from February 25 1982 until April 29, 1982, and that she is now a temporary resident of Montgomery County, Ohio, and has been such since April 29, 1982, while seeking housing in Greene County, Ohio, so as to reside in Greene County.

2. Greene County, Ohio is the county in which the Defendant conducted activity which gave rise for the claim for relief. Further, Greene County, Ohio, is the county in which all or a part of the claim for relief arose.

3. Plaintiff and Defendant were married at Liberty, Indiana on the 12th day of March, 1982, and no children have been born as issue of such marriage, and there is no expectant issue.

Appellee Joseph J. Gambee moved to dismiss the complaint for the reason he was not properly served with process and the Court lacks jurisdiction. Appellee asserted in an accompanying memorandum that appellant left her job in Ohio, gave up her apartment in Ohio and changed her mailing address.

The referee stated he read the pleadings, memoranda, and plaintiff's affidavit, and found that the plaintiff-appellant did in fact change domicile and residence to the State of Indiana. He found she moved her belongings to Indiana and upon her marriage lived in the marital property. He found that no intent existed at that time to return to Ohio and only marital problems caused appellant's return. He ruled that the motion to dismiss for lack of jurisdiction be sustained, and ruled the question of process moot. The trial court adopted the referee's findings.

It is well established that under a motion to dismiss for failure to state a cause of action filed pursuant to Civil Rule 12(B)(6), the complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Where a motion claims lack of jurisdiction of the subject matter pursuant to Civil Rule 12(B)(1), a similar principle controls; if under the allegations of the complaint, plaintiffs demonstrated that the court has subject matter jurisdiction, then the complaint was improperly dismissed. Stated otherwise, the question is whether the plaintiff has alleged a cause of action cognizable by the forum. Steffen v. Telephone Co. (1979), 60 Ohio App. 2d 144.

The plaintiff in an action for divorce must have been a resident of the State of Ohio at least six months immediately before filing the complaint. R.C. 3105.03. The word "resident", as used in R.C. 3105.03 means one who possesses a domiciliary residence, a residence accompanied by an intention to make the State of Ohio a permanent home. Saalfeld v. Saalfeld (1949), 36 Ohio App. 225. Such an intention is known only by the individual which intention, naturally is subject to change from time to time. Coleman v. Coleman (1972), 32 Ohio St. 2d 155. The question of the residence of the plaintiff is essentially one of his intent and will be so accepted unless the facts and circumstances are such as that the avowed intent cannot be accepted as true. Winnard v. Winnard (1939), 62 Ohio App. 351. The burden of proof rests upon the plaintiff to establish both residence and such concurrent intention by a preponderance of the evidence. Saalfeld v. Saalfeld, supra. The Court has jurisdiction to determine whether the plaintiff has established a residence in Ohio as provided by statute. Black v. Black (1924), 110 Ohio St. 392.

The complaint liberally construed states the plaintiff has been a resident of the State of Ohio and was only temporarily absent. In other words, the plaintiff asserts residency with a temporary absence. Appellee asserts certain evidence by way of memoranda. While plaintiff's assertions of residency appears questionable and may in fact be refuted in a summary judgment procedure or upon the taking of testimony, we cannot say she has failed to plead jurisdictional grounds for relief.

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