Falah v. Falah

• Decision Date: 27 March 2017
• Docket Number: No. 15CA0039–M,15CA0039–M
• Citation: 87 N.E.3d 763,2017 Ohio 1087
• Parties: Jamila FALAH, Appellee v. Ghazi FALAH, Appellant
• Court: Ohio Court of Appeals

87 N.E.3d 763

2017 Ohio 1087

Jamila FALAH, Appellee

v.Ghazi FALAH, Appellant

No. 15CA0039–M

Court of Appeals of Ohio, Ninth District, Medina County, Medina County.

Dated: March 27, 2017

JAMES R. RANFTL, Attorney at Law, Akron, for Appellant.

JAMILA FALAH, pro se, Appellee.

DECISION AND JOURNAL ENTRY

CARR, Presiding Judge.

{¶ 1} Defendant–Appellant, Ghazi Falah ("Husband"), appeals from the judgment of the Medina County Court of Common Pleas, Domestic Relations Division. This Court affirms in part, reverses in part, and remands for further proceedings.

I.

{¶ 2} Husband and Plaintiff–Appellee, Jamila Falah ("Wife") married in Israel in August 1981 and had four children during the course of their marriage, three of whom are now adults and one of whom is deceased. Husband is a tenured university professor who taught in multiple countries over the years while Wife remained alongside him and raised their four children. The family ultimately settled in Wadsworth in 2001, but both Husband and Wife continued to travel internationally to visit family and friends.

{¶ 3} In August 2013, one or both of the parties decided to divorce, and they both prepared their Wadsworth home for sale. Both parties remained at the marital residence until October 2013, when Wife went on a trip to Israel. Husband then followed Wife to Israel and, in December 2013, filed for a divorce in the Sharia Court. Wife initially refused service, but ultimately secured an attorney in Israel, participated in the proceedings, and received a deferred dowry. While the Israeli proceedings were still pending, however, Wife also returned to the United States and filed a complaint for divorce in Medina. Following her return, Wife continued to reside in the marital residence until it sold in July 2014.

{¶ 4} Husband responded to Wife's complaint in Medina by filing a motion to dismiss for lack of jurisdiction. He argued both that Wife had abandoned her Ohio domicile when she left for Israel and the court had to cede jurisdiction to Israel, where he had filed for divorce. Before the court could hold a hearing on Husband's motion, the Sharia Court issued a decision, approving a divorce for the parties under Israeli law. Husband then filed a supplement to his motion to dismiss, notifying the court of the divorce in Israel. In August 2014, while this matter was still pending, Husband remarried in Israel.

{¶ 5} A magistrate held a hearing on a Husband's motion to dismiss in December 2014 and later denied it. The trial court adopted the magistrate's decision, and scheduled the matter for a final divorce hearing. The final hearing took place before the trial judge in March 2015. In its final judgment entry, the court purportedly gave comity to the parties' Israeli divorce decision, but it also granted a decree of divorce and set forth orders for the division of their assets and the allocation of their debt. Additionally, it ordered Husband to pay Wife permanent spousal support in the amount of $2,750 per month.

{¶ 6} Husband now appeals from the trial court's judgment and raises five assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE PLAINTIFF'S COMPLAINT DUE TO LACK OF JURISDICTION.

{¶ 7} In his first assignment of error, Husband argues that the trial court erred by not dismissing Wife's complaint. Specifically, he argues that the court lacked jurisdiction to hear this matter because Wife was not a resident of Ohio for at least six months before she filed her divorce complaint. We do not agree.

{¶ 8} Generally, "[a] motion to dismiss for lack of subject matter jurisdiction raises questions of law that we review de novo." Jackson v. Ohio Dept. of Edn., 9th Dist. Summit No. 27686, 2016-Ohio-2818, 2016 WL 2343358, ¶ 9. In determining subject matter jurisdiction, however, a court "is not confined to the allegations of the complaint, and [ ] may consider material pertinent to such inquiry without converting the motion into one for summary judgment." (Alterations sic.) (Internal quotations and citations omitted.) Romano Constr., L.L.C. v. B.G.C., L.L.C., 9th Dist. Summit No. 26469, 2013-Ohio-681, 2013 WL 752094, ¶ 6. " ‘If the disposition of the motion was [ ] based on the trial court's resolution of disputed factual issues, our standard of review is that applicable to any other determination founded upon a trial court's resolution of disputed factual issues, i.e., whether the trial court had before it competent and credible evidence to support its determination.’ " Smith v. White, 2014-Ohio-130, 7 N.E.3d 552, ¶ 25, quoting Horine v. Vineyard Community Church, 1st Dist. Hamilton No. C-060097, 2006-Ohio-6620, 2006 WL 3690309, ¶ 6.

{¶ 9} " R.C. 3105.03 creates a strict test of residency * * *." Barth v. Barth, 113 Ohio St.3d 27, 2007-Ohio-973, 862 N.E.2d 496, paragraph one of the syllabus. "Under R.C. 3105.03, a trial court has subject matter jurisdiction to hear a divorce action if the plaintiff has been an Ohio resident for at least six months immediately before the complaint was filed, no matter where the marriage took place or the cause of the divorce occurred." Nain v. Nain, 9th Dist. Lorain No. 93CA005669, 1994 WL 411690, *1 (Aug. 3, 1994). 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.’ " (Emphasis omitted.) Barth at ¶ 12, quoting Coleman v. Coleman, 32 Ohio St.2d 155, 162, 291 N.E.2d 530 (1972). "A person can have but one domicile at any given time." Redmon v. Redmon, 9th Dist. Summit No. 9844, 1981 WL 3863, *2 (Feb. 18, 1981).

"When a person's legal residence is once fixed, * * * it requires both fact and intention to change it. In other words, to effect a change of domicile from one locality, country, or state to another, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place, with the intentionof making the last acquired residence a permanent home."

Id., quoting In re Hutson's Estate, 165 Ohio St. 115, 119, 133 N.E.2d 347 (1956). "Thus, a person can have multiple residences, but can have only one domicile." Schill v. Cincinnati Ins. Co., 141 Ohio St.3d 382, 2014-Ohio-4527, 24 N.E.3d 1138, ¶ 25.

{¶ 10} There is no dispute that Wife filed her complaint for divorce against Husband on February 3, 2014. According to Husband, the court lacked jurisdiction over Wife's complaint because she left Ohio on October 1, 2013, with the intention to relocate. He argues that Wife's "actions establish an actual physical relocation and an intention to establish a residence outside of Ohio." Because Wife intentionally abandoned her Ohio domicile four months before filing for divorce, Husband argues, she could not satisfy the jurisdictional requirement for residency set forth in R.C. 3105.03. Thus, he argues that the court erred when it denied his motion to dismiss.

{¶ 11} A magistrate conducted a hearing on Husband's motion to dismiss Wife's complaint, and both Wife and Husband testified at the hearing. There was testimony that the parties moved multiple times throughout their marriage until 2001, when they settled in Wadsworth and Husband secured permanent employment as a university professor. In August 2013, either one or both of the parties decided to divorce and prepared their marital home for sale. Both parties testified that they placed their home on the market and sold a sizeable amount of their furnishings in August or September 2013.

{¶ 12} Wife testified that she left Ohio on October 1, 2013, and traveled to Toronto because she and Husband were not getting along. Wife remained in Toronto for a single day before flying to Israel. She denied that she either had a residence in Toronto or had any intention to move there. She testified that she took, at most, two suitcases with her when she left Ohio. Meanwhile, she placed possessions from the marital home in storage in Akron. Wife testified that it was common for her to travel internationally on occasion to visit family and friends, but that she always intended to return to Ohio and maintain her residence here. She testified that her youngest son was currently attending college in Akron and that she intended to stay close to him. Wife indicated that, when she left Ohio, she maintained the bank account that she had in Wadsworth and left behind her personal belongings as well as her car.

{¶ 13} According to Wife, Husband repeatedly told her that she would have to move to Toronto after their divorce because she could obtain welfare there and he did not intend to pay her any money. She testified that, when she returned from her trip to Israel on January 10, 2014, she had to stay in Toronto for several days because Husband had her car, refused to come get her, and indicated that she was not welcome at their home. After a few days, Wife rented a car and returned to the marital residence, where she resided until it sold in July 2014. Wife testified that she then moved to Akron to live with her son. She stated that, had someone inquired about her permanent address six months before she filed for divorce, she would have given them her address in Wadsworth.

{¶ 14} Husband testified that Wife obtained her college degree in August 2013 and, before that, repeatedly said she wanted to move to Toronto after her graduation. Husband stated that Wife was "very clear" about her intention to move and that she informed their real estate agent of her intention when the parties placed their home on the market. He testified that their family owned a condominium in Toronto and that one of their sons currently resided there. According to Husband, the parties sold the majority of their home furnishings in August or September 2013 and their insurance company even went so far as to contact him in December 2013 because the...