E. Cleveland v. Landingham

• Decision Date: 03 October 1994
• Docket Number: No. 65547,65547
• Citation: 646 N.E.2d 897,97 Ohio App.3d 385
• Parties: CITY OF EAST CLEVELAND, Appellee, v. LANDINGHAM et al., Appellants.
• Court: Ohio Court of Appeals

Page 385

97 Ohio App.3d 385

646 N.E.2d 897

CITY OF EAST CLEVELAND, Appellee, v. LANDINGHAM et al., Appellants.

No. 65547.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Oct. 3, 1994.

James H. Hewitt III, Director of Law and Ronda G. Curtis, Asst. Law Director, East Cleveland, for appellee.

Ramona E. Paradise and U.A.W. Legal Services, Brooklyn Heights, for appellant.

HARPER, Judge.

Appellant, Jack Landingham, appeals from the judgment of the East Cleveland Municipal Court on an action filed by appellee, the city of East Cleveland, 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, 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 East Cleveland, 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 East Cleveland, 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 expenses 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 rent appellant paid 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 East Cleveland 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 further testified during direct examination as follows:

"Q. You do consider yourself as separated?

"A. Yes.

"Q. From 1983 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 loan for January 1990 when her mother asked him to help because she was behind in payment. He paid no other bills. She testified as follows upon questioning by the city attorney:

"Q. 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 the judgment, therefore, was inconsistent with the judgment of the court.

Appellate review of a manifest-weight argument is guided by the rule enunciated by the Ohio Supreme Court in Karches v. Cincinnati (1988), 38 Ohio St.3d 12, at 19, 526 N.E.2d 1350, at 1357,

"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 Constr. 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 77, 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." See, also, Gates v. Bd. of Edn. of River Loc. School Dist. (1967), 11 Ohio St.2d 83, 40 O.O.2d 91, 228 N.E.2d 298; Ross v. Ross (1980), 64 Ohio St.2d 203, 204, 18 O.O.3d 414, 415, 414 N.E.2d 426, 427-428.

In view 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 East Cleveland during the tax years in question, and, therefore, subject to the payment of municipal income taxes.

Codified Ordinances of East Cleveland 191.0312 and 191.0316 define nonresident and resident 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 domicile somewhere, and that an individual cannot have more than one domicile at the same time. Grant v. Jones (1883), 39 Ohio St. 506; Hill v. Blumenberg (1924), 19 Ohio App. 404; Sturgeon v. Korte (1878), 34 Ohio St. 525; see, also, Texas v. Florida (1939), 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817.

DEFINITION OF DOMICILE

Domicile 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. N. Carolina (1944), 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, "Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance." Id. at 229, 65 S.Ct. at 1095, 89 L.Ed. at 1581.

ACQUISITION OF DOMICILE

We have stated above that every person must have a domicile somewhere. Sturgeon v. Korte, supra. It is also a well-established rule of law that no one loses his old domicile until a new one is acquired. Saalfeld v. Saalfeld (1949), 86 Ohio App. 225, 41 O.O. 94, 89 N.E.2d 165; Larrick v. Walters (1930), 39 Ohio App. 363, 177 N.E. 642; Bd. of Edn. of Oakwood City School Dist. v. Dille (1959), 109 Ohio App. 344, 11 O.O.2d 139, 165 N.E.2d 807; Cunningham v. Bessemer Trust Co. (1931), 39 Ohio App. 535, 178 N.E. 217; Spires v. Spires (1966), 7 Ohio Misc. 197, 200-202, 35 O.O.2d 289, 292, 214 N.E.2d 691, 693-695. Thus, abandonment of one's domicile is effected only when a person chooses a new domicile, 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 domicile requires two essential elements, which are usually expressed in Latin as factum and animus, or residence and intention to remain. See Anderson v. May (1951), 91 Ohio App. 557, 48 O.O. 132, 107 N.E.2d 358, reversed on other grounds (1953), 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221. While the law remains that a person retains the old domicile until a new one is shown to be acquired by the concurrence of fact and intent, no one acquires a new domicile or loses the old one by the mere fact that he intends to move elsewhere and prepares to do so or that he is physically in a new location without any intent to remain there. In re Estate of Huston (1956), 165 Ohio St. 115, 59 O.O. 130, 133 N.E.2d 347. Even after the formation of the requisite intent to domicile in a new location, a person remains a domiciliary of the old location until he actually arrives at the new location and acquires a dwelling place. See In re Estate of Michal (P.C.1939), 16 O.O. 110, 30 Ohio Law Abs. 300,...