Glassman v. Glassman

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: ROSS
• Citation: 75 Ohio App. 47,60 N.E.2d 716
• Decision Date: 17 April 1944
• Parties: GLASSMAN v. GLASSMAN.

75 Ohio App. 47
60 N.E.2d 716

GLASSMAN
v.
GLASSMAN.

Court of Appeals of Ohio, First District, Hamilton County.

April 17, 1944.

Action by Natalie Elaine Glassman against Dan Glassman for divorce. From a judgment dismissing her petition for want of jurisdiction, plaintiff appeals on questions of law-[Editorial Statement.]

Reversed and remanded for further proceedings.

[60 N.E.2d 717]

Leonard H. Freiberg, of Cincinnati, for appellant.

Oliver G. Bailey, of Cincinnati, for appellee.

ROSS, Presiding Judge.

The plaintiff has appealed to this court on questions of law from a judgment of the Court of Common Pleas of Hamilton County, Ohio, Division of Domestic Relations, dismissing her petition for divorce.

In that Court was filed and journalized separate finding of facts and conclusions of law which present the facts necessary for our consideration of this case.

Among the conclusions of law appears ‘for want of jurisdiction this action should be and is hereby dismissed at plaintiff's costs.’

No other judgment was entered.

Although the action of the Court in dismissing the petition was improperly included with the conclusions of law, it did constitute a final judgment of the Court in question and will be here so considered.

From the finding of facts (no bill of exceptions is presented) it appears that the plaintiff and defendant were married at Cincinnati, Hamilton County, Ohio, on the 10th day of October, 1941. The defendant at that time was an officer in the Medical Corps of the United States Army and was stationed at Ft. Thomas, a United States Army Post, situated in Kentucky, just across the Ohio River from Cincinnati. The defendant at the time of this induction into the United States Army resided at Charleston, West Virginia, where he had been engaged in the practice of medicine. Thereafter it does not appear that he attempted to, or did establish any other domicile. The findings fail to show any designation by the husband of any place or mode of living.

Prior to her marriage, the plaintiff had been a bona fide resident, domiciled in Cincinnati, living with her parents, for a period of four years prior to her marriage. On the day of the marriage of plaintiff and defendant, ‘the parties set out on a trip by automobile to New Orleans, Louisiana, as the first part of the journey of the defendant to Panama, where he had been ordered by Army authority; the defendant continued his journey by ship to Panama and the plaintiff immediately returned to the home of her parents at 809 South Crescent Avenue, Cincinnati, Ohio.’

In November, 1941, the plaintiff joined defendant in Panama, and on December 9, 1941, two days after the Japanese attack on Pearl Harbor, left Panama and returned to Cincinnati ‘where she remained for approximately nineteen months until July, 1943.’

‘In that month the defendant returned to Continental United States, notified the plaintiff, and she met his train at Louisville, Kentucky, whence they returned immediately to Cincinnati. Later on in the month of July, the defendant was ordered to Camp Rucker in Alabama and went there; the plaintiff joined him there and remained for about two weeks, when she left him and returned to Cincinnati and filed this action on October 21, 1943.

‘The trial court further finds that defendant was duly served with a copy of the petition and by publication according to law and has been guilty of gross neglect of duty toward the plaintiff and that the plaintiff is entitled to a divorce as prayed for if she has the statutory residential qualifications.’ (Italics added.)

In its conclusions of law, the Court ‘finds that the residence of the defendant at the time of filing the petition was Charleston, West Virginia, and that the residence of the plaintiff as a matter of law, followed that of the defendant, notwithstanding the fact, that she had never resided with her husband in his residence.’ (Italics added.)

As stated before, it nowhere appears that the defendant attempted to or did acquire any other domicile than Charleston, West Virginia, the place of this residence at the time of his induction into the United States Army.

The plaintiff at no time resided in any legal domicile of the defendant, acquired or designated, and never after her marriage voluntarily acquired any domicile other than that of her parents, in Cincinnati, Hamilton County, which she had possessed for four years prior to her marriage.

The sole question presented for decision by this Court is whether or not the trial court had jurisdiction over the subject of the action. If the plaintiff had not been a resident of the State of Ohio for one year prior to filing her petition, then the Court had no power to consider or pass upon the plaintiff's claim for divorce. Jurisdiction

[60 N.E.2d 718]

over the person may be waived. Jurisdiction over the subject of the action cannot be conferred even by consent. Was the plaintiff a resident of Ohio for one year prior to filing her action for divorce?

(1) The residential qualifications of a plaintiff in a divorce action brought in an Ohio Court are specified in section 11980, General Code, which provides in part as follows:

‘Except in an action for alimony alone, the plaintiff must have been a resident of the state at least one year before filing the petition.’

(2) Such residential requirements in state statutes have been almost universally held to be jurisdictional in character. If the plaintiff in a divorce action has not been a resident in the state for the period prescribed by statute, the trial court has no jurisdiction to consider the action and any judgment rendered in such a proceeding is absolutely void, in the state of trial and elsewhere. Chandler v. Chandler, 132 Va. 418, 112 S.E. 856;Sang v. Sang, 240 Wis. 288, 3 N.W.2d 340;Miller v. Miller, 33 Fla, 453, 15 So. 222,24 L.R.A. 137;Brandfield v. Bradfield, 154 Mich. 115, 117 N.W. 588,129 Am.St.Rep. 468; Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 N.Ed. 279, 143 A.L.R. 1273;Winston v. Winston, 50 App.D.C. 321, 271 F. 551;Golden v. Golden, 41 N.M. 356, 68 P.2d 928;DuQuesnay v. Henderson, 24 Cal.App.2d 11, 74 P.2d 294.

(3) The Court of a state in which a petition for divorce is filed has the power to determine from the evidence submitted to it whether or not statutory jurisdictional requirements have been met by the plaintiff. Black v. Black, 110 Ohio St. 392, 144 N.E. 268.

(4) It has been generally determined in Courts where the matter has been considered that the word ‘residence’ when used in statutes conferring jurisdiction in divorce actions means domiciliary residence, or, in other words, that a temporary residence, no matter how extended, does not meet the requirements of such statutes unless accompanied by an intention of the party involved to constitute such residence a domicile. William v. State of North Carolina, supra, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273;Howe v. Howe, 179 Va. 111, 18 S.E.2d 294; Ex parte State ex rel. Altman, 237 Ala. 642, 188 So. 685;Blair v. Blair, 149 Kan. 3, 85 P.2d 1004;St. John v. St. John, 291 Ky. 363, 163 S.W.2d 820;Lamb v. Lamb, 57 Nev. 421, 65 P.2d 872.

(5) It is a rule of common law accepted and adopted generally that the wife upon her marriage is by law invested with the domicile of her husband. Foss v. Foss, 105 Conn. 502, 136 A. 98;Bruce v. Bruce, 176 Ark, 442, 3 S.W.2d 6;Wheeler v. Burgess, 263 Ky. 693, 93 S.W.2d 351;Weisinger v. McGehee, 160 Miss. 424, 134 So. 148. See also: 28 C.J.S., Domicile, § 12, p. 24; 17 Am.Jur., 616.

(6) It has, however, been held that this rule is subject to a qualification that such obligation on the wife is only effective when the husband has provided and designated a domicile. Ferguson's Adm'r v. Ferguson's Adm'r, 255 Ky. 230, 73 S.W.2d 31;Gussman v. Rodgers, 190 Minn. 153, 251 N.W. 18.

The statute in Ohio giving the husband the right to fix domicile also indicates that some affirmative action is required on the part of the husband.

Section 7996, General Code, provides:

‘The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto.’

(7) The domicile of one entering the armed forces of the United States remains the same throughout service in such forces unless a new domicile is voluntarily selected by such person. Dicks v. Dicks, 177 Ga. 379, 170 S.E. 245;Harris v. Harris, 205 Iowa 108, 215 N.W. 661;Winston v. Winston supra, 50 App.D.C. 321, 271 F. 551;Alburger v. Alburger, 138 Pa.Super. 339, 10 A.2d 888. See, also: 28 C.J.S., Domicile, § 12, p. 28; 17 Am.Jur., 634.

(8) Although a member of the armed forces retains by operation of law the domicile possessed at the time of connection with such armed forces, he may select a domicile even at a post, if such selection be evidenced by bona fide intention and residence. St. John v. St. John, supra, 291 Ky. 363, 163 S.W.2d 820.

(9) It has been held generally that a wife upon the aggression of her husband may select a new domicile, independent and separate from that of her husband. Norris v. Norris, 224 Ala, 678, 141 So. 672;Caheen v. Caheen, 233 Ala. 494, 172 So. 618;

[60 N.E.2d 719]

Ferguson's Adm'r v. Ferguson's Adm'r supra, 255 Ky. 230, 73 S.W.2d 31;George v. George, 190 Ky. 706, 228 S.W. 408, 39 A.L.R. 700;Gussman v. Rodgers, supra, 190 Minn. 153, 251 N.W. 18;George v. George, 143 La. 1032, 79 So. 832;McCallum v. McCallum, 153 Wash. 1, 279 P. 88;Torlonia v. Torlonia, 108 Conn. 292, 142 A. 843;Cheever v. Wilson, 9 Wall., U.S. 108, 123, 19 L.Ed. 604. See, also: 27 C.J.S., Divorce, § 77, p. 650; 17 Am.Jur. 617; Restatement, Conflict of Laws, section 28, p. 51.

The Ohio statute, section 11982, General Code, is but an iteration of this rule:

‘When a wife files a petition for a divorce, or for alimony, the residence of her husband shall not be so construed as to preclude her from the provisions of this chapter.’

(10) As indicating the ineffectiveness of the domicile of the husband to...