City of East Cleveland v. Jack Landingham

• Decision Date: 22 September 1994
• Docket Number: 94-LW-4017,65547
• Parties: CITY OF EAST CLEVELAND, Plaintiff-Appellee v. JACK LANDINGHAM, ET AL., Defendants-Appellant
• Court: United States Court of Appeals (Ohio)

CITY OF EAST CLEVELAND, Plaintiff-Appellee v. JACK LANDINGHAM, ET AL Defendants-Appellant

No. 65547.

94-LW-4017 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

September 22, 1994

Civil appeal from East Cleveland Municipal Court Case No 90-CVF-2324-87.

For Plaintiff-Appellee: JAMES H. HEWITT, III, Director of Law RONDA G. CURTIS, Asst. Law Director, City of East Cleveland, 14340 Euclid Avenue, East, Cleveland, Ohio 44112.

For Defendants-Appellant: RAMONA E. PARADISE, ESQ.. U.A.W. Legal Services, 707 Brookpark Road, Brooklyn Heights, Ohio 44109.

OPINION

HARPER J.

Appellant, Jack Landingham, appeals from the judgment of the East Cleveland Municipal Court on an action filed by appellee, the City of East Cleveland (the City), to recover delinquent municipal income taxes. For the reasons that follow, we reverse and remand.

I.

Appellant testified that he was employed by General Motors Corporation (GMC) for about twenty-nine years. On or about August 29, 1983, he was transferred to the GMC plant located in Toledo, Ohio. He rented an apartment located at 1933 West Alexis Road, Toledo, Ohio, and has lived in that apartment until the present.

In 1984 appellant registered to vote in Lucas County. He testified that he had voted in elections there and nowhere else. He produced his W-2 form showing his Toledo address.

In 1985 appellant purchased a vehicle and registered it in Lucas County with his Toledo address. 'Appellant testified that since moving to Toledo (1984-1988), he has been living separate from his wife who lives in the city and considers himself separated from her. There is no legal document in support of appellant's separation from his wife.

Appellant testified that since moving to Toledo he did not return regularly to the city but visited occasionally ("two or three times a year"). He stayed with his daughter who lives in Painesville during most of the visits. He did not support his wife but paid some of her bill one time when he was approached by her mother for help.

Appellant testified that he and his wife filed joint federal and state income tax returns for the 1984 through 1988 tax years. On their 1988 tax return they listed a deduction for the amount appellant paid as rent on his Toledo apartment. The deduction was listed as a rent away from home. Appellant testified that they made the deduction on the advice of his tax preparer. He did not file the city income tax returns for the years 1984 through 1988 because he did not consider himself a resident of the city nor did he have any intention of returning to the city.

Delores Landingham testified that she was married to appellant. They had been separated for ten years. They had lived apart since 1984. The first two years after appellant moved to Toledo in 1983, things were fine.

"Like we have been living apart ten years, but until like the first two years it was like a courtship in distance, and then after that I guess he had his life to live and I had my life to live, and we just -- we will always be friends. After so many years we will always be friends."

For the first two years she considered him her husband but "he didn't."

Mrs. Landingham testified that appellant did not send her regular support. Appellant did not visit her regularly. He stayed more with his daughter in Painesville. She responded when asked during direct examination,

"You do consider yourself as separated?

"A. Yes.

"Q. From l983 until 1988 at least?

"A. Yeah. I think if you don't have a relationship -

"A VOICE: (Inaudible).

"A. -- you don't have a relationship with a person, an intimate relationship, I don't know what that's called, but being apart, being separated, just now [sic] being together (inaudible)."

On cross-examination, Mrs. Landingham testified that appellant visited her in 1990 when she had a heart attack. He paid the house note for January of 1990 when her mother asked him to help because she was behind in payment. He paid no other bills.

Mrs. Landingham when asked by the city attorney:

"Okay. Didn't you state to the tax administrator that your husband comes home on weekends, on some weekends, and holidays?

"A. Sometimes on weekends, sometimes on holidays. When he first started working, he was working seven days a week, so how could he come home? On some holidays he did come home.

"Q. When did you have the heart attack what you were saying? [sic]

"A. I had a heart attack in '90.

"Q. And he came home in what month?

"A. I had it in -- I came home in January from the hospital, so he came home right after January.

"Q. Okay. He came home and stayed for a couple --

"A. He didn't stay, just, you know, in and out stayed for two weeks, but he wasn't with me. I had nurses with me. I had a hospital bed in the dining room, so he wasn't with me.

"He came to see that everything was paid. I couldn't pay it, and I didn't get paid from my jobs, so, I mean, house loan, what could I do? Because I didn't have the money. I feel obligated to him. I owe him."

II.

Appellant's sole assignment of error for our review is that:

"The trial Court erred in finding Judgment for the Plaintiff for the 1984 through 1988 tax years in that said Judgment goes against the manifest weight of the evidence presented at trial."

Appellant argues that the evidence presented was overwhelmingly in favor of his argument that he did not owe the city any delinquent taxes, and therefore, was inconsistent with the judgment of the court.

Appellate review of a manifest height argument is guided by the rule as enunciated by the Ohio Supreme Court in Karches v. City of Cincinnati (1988), 38 Ohio St.3d 12 at 19, which states that:

"In reviewing the court's judgment, we are guided by the principle that judgments supported by competent, credible evidence going to all the material elements of the case must not be reversed, as being against the manifest weight of the evidence, C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578. Every reasonable presumption must be made in favor of the judgment and the findings of facts. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 17, 10 OBR 408, 461 N.E.2d 1273. Finally, if the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the trial court's verdict and judgment." (Citations omitted).

See also Gates v. Bd. of Edn. of River Local School Dist. (1967), 11 Ohio St.2d 83; Ross v. Ross (1980), 64 Ohio St.2d 203, 204.

Being mindful of the above rule, the sole issue to be determined in the instant case is whether there was sufficient evidence on the record to establish that appellant was domiciled in the city during the tax years in question, and, therefore, subject to the payment of municipal income taxes.

The City Ordinances 191.0312 and 191.0316 define nonresident and resident respectively as follows:

"'Nonresident' means an individual domiciled outside the City of East Cleveland.

"'Resident' means an individual domiciled in the City of East Cleveland."

It is a fundamental principle of law that every individual must have a domicil somewhere, and that an individual cannot have more than one domicil at the same time. Grant v. Jones (1883), 39 Ohio St. 506; Hill v. Blumenberg (1924), 19 Ohio App. 404; see Sturgeon v. Korte (1878), 34 Ohio St. 525 (holding that since the law ascribes domicil to every person, no individual can be without one). See also Texas v. Florida (1938), 306 U.S. 398, 83 L.Ed. 817, 59 S.Ct. 563.

DEFINITION

WHAT THEN IS DOMICIL?

Domicil has been defined as a place where a person lives, or has his home. A place where an individual has his true, fixed, permanent home and principal residence established. A place to which the individual intends to return whenever he is absent, and from which he has no present intent to move. See Sturgeon v. Korte, supra. As held by the United States Supreme Court in Williams v. North Carolina (1944), 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, reh denied 325 U.S. 895, 65 S.Ct. 1560, 89 L.Ed. 2006, "Domicil implies such a nexus between person and place of permanence so as to control the creation of legal relation and responsibilities of the utmost significance."

ACQUISITION

THE NEXT QUESTION AFTER DEFINING DOMICIL IS HOW THEN DOES ONE ACQUIRE DOMICIL?

We have stated supra that every person must have domicil somewhere. Sturgeon v. Korte, supra. It is also a well established rule of law that no one loses his old domicil until a new one is acquired. Saalfeld v Saalfeld (1949), 86 Ohio App. 225; Larrick v. Walters (1930), 39 Ohio App. 363; Board of Education v. Dille (1959), 109 Ohio App. 344. A person cannot lose his old domicil unless he has perfected the acquisition of the new one. Cunningham v. Bessemer Trust Co. (1931), 39 Ohio App. 535. Until and unless the acquisition of the new domicil is perfected the original domicil must be presumed to continue. See Spires v. Spires (1966), 7 Ohio Misc. 197, 35 O.O.2d 289, 292. Thus, abandonment of one's domicil is effected only when a person chooses a new domicil, establishes actual residence in the place chosen and shows a clear intent that it be the principal and permanent residence.

In summary, Ohio law on the acquisition of domicil requires two essential elements, which are usually expressed in Latin as fact urn and animus, or residence and intention to remain. See Anderson v. May (1951), 91 Ohio App. 557 dism'd for want of debat. question (1952), 157 Ohio St. 436, revd. on other grounds (1953), 345 U.S. 528, 97 L.Ed. 1221, 73 S.Ct. 840. While the law remains that a person retains the old domicil until a new one is shown to be acquired by the concurrence of fact and intent, no one...