Spires v. Spires

• Decision Date: 08 March 1966
• Docket Number: No. 13855,13855
• Citation: Spires v. Spires, 7 Ohio Misc. 197, 214 N.E.2d 691 (Ohio Ct. Com. Pl. 1966)
• Parties: , 35 O.O.2d 289 Robert D. SPIRES, Plaintiff, v. Anna R. SPIRES, Defendant.
• Court: Ohio Court of Common Pleas

Page 197

7 Ohio Misc. 197

214 N.E.2d 691, 35 O.O.2d 289

Robert D. SPIRES, Plaintiff, v.Anna R. SPIRES, Defendant.

No. 13855.

Court of Common Pleas of Ohio, Meigs County.

March 8, 1966.

Crow, Crow & Porter, Pomeroy, for plaintiff.

Joseph H. Hans, Columbus, for defendant.

BACON, Judge.

Plaintiff, a career serviceman filed an action for divorce in this court on December 1, 1965, summons issued and personal service obtained upon defendantDecember 2, 1965 by the Sheriff of Franklin County.

Defendant by counsel filed her motion to strike the action from the files for the reason that plaintiff had not been a bona fide resident of Meigs County for more that 90 days immediately preceding its filing, which motion came on for hearing and evidence was taken.

The evidence discloses defendant resides at No. 405, Apartment 2, North Virginia Lee, Columbus, Ohio, where the summons was served upon her.That the plaintiff resided in Meigs County, Ohio, for more than three years prior to his enlistment in the U. S. Army in 1959, that throughout such service, which has been virtually continuous, he maintained Middleport, Ohio, as his 'Home of Record' in his official records.

Plaintiff's Exhibit 1, copy of Special Orders 184, September 28, 1965, assigning plaintiff to 13th Psychological Warfare Battalion, Ft. Bragg, N. C., indicates his Home of Record as Box 5, Middleport, Ohio, and his temporary address as 4480 Blendon Drive, Columbus, Ohio.This latter residence, assigned as 'temporary' is apparently the same as indicated in defendant's Exhibit 1, a letter dated November 19, 1965 addressed to defendant, 4480 Blendon Drive, Route 1, Gahanna, Ohio, 43020.

The custodian of plaintiff's official military records at Headquarters, 13th Psychological Warfare Battalion, Fort Bragg, North Carolina, 28307, certifies plaintiff's 'Home of Record' upon his reenlistment into the U. S. Army on June 21, 1962, was Box 5, Middleport, Meigs County, Ohio.

Defendant's exhibit, War Department Form 214 (1 Nov 55) Armed Forces of the United States Report of Transfer or Discharge, filed with defendant's brief after the taking of testimony, reveals that plaintiff's domicil or legal residence at time of entry on the service of his country in June, 1959 was 34 S. 5th Street, Middleport, Meigs County, Ohio.This exhibit also relates that plaintiff transferred to the United States Army Reserve May 8, 1962 at Ft. Dix, N. J., and his 'Permanent Address for Mailing Purposes after transfer' was 174 N. State St., Westerville, Franklin County, Ohio.

It appears, however, that plaintiff intended to pursue a career in the United States Army, that he did in fact reenlist, June 21, 1962, and, from the testimony, the transfer and reenlistment maneuver was for the purpose of lengthy assignment of service at Fort Hayes in Franklin County.The maneuver succeeded.Plaintiff was at Fort Hayes for two years.

Plaintiff's mother testified that he had been living with her in Middleport when he enlisted.That he has had mail at Box 5, Middleport, ever since he entered the service.

From the testimony of defendant it appears she married plaintiff in Meigs County, August 29, 1959, shortly after he had entered the service.Her domicil prior to marriage was with her parents in Mason County, W. Va., immediately across the Ohio River from Middleport.

Defendant avers that when she and plaintiff entered into a land contract August 13, 1962 for a residence at 5350 Walnutview Drive, Columbus, Ohio, this manifested his intention to make his domicil in Franklin County.And by her exhibit filed February 7th, subsequent to the testimony taken, she views that he indicated like intention when he gave the Army Reserve as his permanent address for mailing purposes after transfer No. 174 N. State Street, Westerville, Franklin County, Ohio.

As to the land contract the court rejected plaintiff's offer to show that at that time in Columbus suitable housing was not available for his dependents at reasonable rentals, and that better quarters for the money were obtained by making a contract to purchase a home; that the payments would give them an equity, portion of which might be realized at time of reasle.Probably this testimony was admissible.

At first blush it might appear that plaintiff was selecting a domicil in Franklin County when he contracted to buy residence property there.And almost the entire marriage history of the parties having taken place in Franklin County, it might be more convenient for the defendant to litigate a divorce action in the courts of that county.

However, we are not here concerned with Sec. 3105.04 R.C. which allows a wife to divorce herself from the residence of her husband in filing a petition under Sec. 3105.03 R.C.The question is: Does plaintiff have the required residence in Meigs County that he can maintain the instant action?

For the answer to that question we are compelled to look at the entire record.Defendant did not offer any evidence connected with the plaintiff's intentions when they first established a residence in Franklin County in the year 1959.It would be presumed that by remaining in Franklin County in 1962, the parties were continuing what had been commenced some years earlier.It has been said that tomoorow is but the lengthened shadow of yesterday.

It is quite obvious that in the many years the parties resided in Columbus, the plaintiff performed many acts normally connected with domicil; but one must consider that all of them are also consistent with acts required or appropriate for a serviceman, who has his family with him at his military assignment.

The plaintiff during his career has been assigned to several military posts in the United States.He has been in Turkey prior to reenlistment.In May, 1964, he was sent to Okinawa after two years at Fort Hayes.It was testified that plaintiff arranged for moving defendant and their children to reside with him at his Okinawapost, but cancelled the orders and failed to provide the funds when domestic difficulties arose.It may be that it was also about this time default was made under the land contract and the owner repossessed in December 1964.

It is commonly stated that an essential element of the judicial power to grant a divorce, or jurisdiction, is domicil, and the use of the term 'residence' or the like in a divorce statue is generally deemed to import the requirement of domicil.24 Am.Jur.2d, Div. Sec. 246, p. 401.Ohio Courts are in accord.Glassman v. Glassman, 75 Ohio App. 47, 60 N.E.2d 716;Saalfeld v. Saalfeld, 86 Ohio App. 225, 89 N.E.2d 165.Draper v. Draper, 107 Ohio App. 32, 151 N.E.2d 379.

The terms 'domicil' and 'residence' although sometimes used synonymously, are frequently held not to be converible and to have distinguishing characteristics.'Domicil' ordinarily has a broader meaning than 'residence.'It includes residence.Actual residence, however, is not essential to retain domicil after it is once acquired.Domicil is not determined by residence alone.Moreover, while one can have only a single domicil, he may have several residences.

To effect a change of domicil from one locality or state to another, there must be an actual abandonment of the first domicil, coupled with an intention not to return to it, and there must be a new domicil acquired by actual residence in another place or jurisdiction, with the intention of making the last-acquired residence a permanent home.The rule is well settled that domicil once established continues until it is superseded by a new domicil, and that the old domicil is not lost until a new one is acquired.

Defendant relies upon a general rule that the very fact of actual residence in a place tends to prove domicil in that place, that it is prima facie evidence of domicil.But this rule does not apply to a person in the armed services, since a change of residence by such a person is not by volition but by order of superior military authority.

This court feels it might be better argued that plaintiff when he conceived the idea of discharge, transfer to the army reserve, and reenlistment at Fort Hayes, with view to a more lengthy assignment there, intended to change his domicil to Columbus.But, the trouble is that it points up the realization of plaintiff that while in active service any military assignment will have few years of duration at best, and he may merely have wanted assurance of not having to leave them or reestablishing them for as long as possible.

Then is it not very significant that defendant allowed plaintiff to apply for orders that his family join him in Okinawa?She gave his failure to provide funds as the reason that the orders were never consummated.Her readiness to go is not indicative that plaintiff or defendant intended residence in Franklin County as choice of domicil.

The residence or domicil of a person in the military...