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Griffin v. Griffin

Court of Appeals of Ohio, First District, Hamilton

December 20, 2019

AUDREY N. GRIFFIN, Plaintiff-Appellee,
v.
JAMES A. GRIFFIN, Defendant-Appellant.

          Appeal From Hamilton County No. DR-1501954 Court of Common Pleas, Domestic Relations Division

         Judgment Appealed From Is: Affirmed

          Zachary D. Smith, LLC, and Zachary D. Smith, for Plaintiff-Appellee,

          Eppley Legal Group and Mark C. Eppley, for Defendant-Appellant.

          OPINION

          WINKLER, JUDGE.

         {¶1} Defendant-appellant James A. Griffin ("James") appeals from the divorce decree entered by the Hamilton County Court of Common Pleas, Domestic Relations Division, granting plaintiff-appellee Audrey N. Griffin's ("Audrey") complaint for divorce. James contends the trial court erred by denying his motion to dismiss the action for lack of subject-matter jurisdiction, and that his status as service member entitled him to a stay or continuance of the hearing on his motion. Additionally, he argues the trial court erred by adopting the parties' agreement on parental rights and responsibilities and by ordering him to pay some of Audrey's attorney fees. For the reasons that follow, we affirm.

         Background Facts and Procedure

         {¶2} The record establishes that the parties met at James's home in Cincinnati, Ohio, in September 2012. At the time, Audrey was living with her parents in a house in Blanchester, Ohio, and obtaining a nursing degree at a local university. James contracted with the United States Navy for a minimum of five years. They married on July 27, 2013, in Cincinnati and, after a honeymoon, the two moved to Tennessee due to military orders. While in Tennessee, Audrey gave birth to their only child. The parties remained physically present in Tennessee until March 2015, when James was assigned to officer candidate school for 90 days in Newport, Rhode Island. While James lived in Rhode Island, Audrey and the parties' child returned to her parents' home in Ohio, which after a move was located in Anderson Township. After officer candidate school, James received orders to move to Pensacola, Florida, for navy pilot training. Audrey and James arrived in Pensacola in July 2015.

         {¶3} After a domestic dispute in September 2015, Audrey again returned to her parents' home in Ohio with the child. She filed this complaint for divorce in the Hamilton County Court of Common Pleas, Domestic Relations Division, in late October 2015, followed by an amended complaint in late December for the purpose of obtaining temporary orders of custody and support pursuant to Civ.R. 75(N). James remained in Pensacola and, after the magistrate had issued the temporary orders, moved to dismiss the Ohio action under Civ.R. 12(B)(1), contending that the Ohio court lacked subject-matter jurisdiction. James argued that Audrey's allegation that she met Ohio's six-month minimum residency requirement, set forth in R.C. 3105.03, was factually deficient. James then initiated divorce proceedings in Florida and obtained a contrary order of custody after averring that, among other things, he had no information of any custody proceeding pending in any court concerning the child.

         {¶4} A hearing on James's motion to dismiss this action was continued until August 30, 2016. A week before the scheduled date, James moved to "continue" the hearing and, one day before, moved to "stay" the action. In both motions, James cited the Servicemembers Civil Relief Act ("SCRA"), which contains provisions addressing the postponement or suspension of civil legal proceedings when a military service member is on active duty. James indicated in his motions that he was on military training orders at Fort Meade in Maryland.

         {¶5} The magistrate denied James's motions to continue and stay, and proceeded with an evidentiary hearing on the motion. James did not appear but he was represented at the hearing by counsel. After the presentation of evidence, including Audrey's testimony that she had not been physically present in Ohio for the entire six-month period immediately before the filing of her complaint, the magistrate found jurisdiction lacking and granted the motion to dismiss. Audrey filed an objection, arguing that her lack of physical presence was not determinative and that the evidence showed she had never changed her domicile from Ohio, despite her involuntary moves based on military orders. The trial court sustained Audrey's objection and determined that Ohio had subject-matter jurisdiction.

         {¶6} James appealed from the trial court's order denying the motion to dismiss for lack of subject-matter jurisdiction, but this court dismissed that appeal for lack of finality. See Griffin v. Griffin, 1st Dist. Hamilton No. C-170026, 2017-Ohio-8450 ("Griffin I "). The case then proceeded in the Hamilton County Domestic Relations Court. During this time, James did not cooperate with discovery requests or foster settlement of the issues and sought to be named the residential parent. James also produced copious amounts of irrelevant discovery that Audrey's counsel had to review. Audrey's counsel also had to defend her in the Florida divorce action.

         {¶7} The case was set for a custody and property trial on May 4 and 11, 2018, before the magistrate. James appeared on May 4, and his attorney requested to relitigate the issue of jurisdiction. The magistrate granted that request. However, after Audrey's counsel elicited unfavorable admissions from James on cross-examination, the parties ended the trial and eventually settled all issues except for Audrey's attorney fees. James essentially accepted Audrey's proposed parenting plan naming her the residential parent that was similar to the recommendation provided by the court's parent specialist in mid-2016.

         {¶8} After a hearing on attorney fees, the trial court entered the final decree of divorce, which included the agreed order on parental rights and responsibilities and a $30, 000 award of attorney fees to Audrey.

         Analysis

         {¶9} In his first assignment of error, James argues the trial court erred by denying his Civ.R. 12(B)(1) motion to dismiss for lack of subject-matter jurisdiction. He maintains that the evidence presented at the evidentiary hearing showed that Audrey had failed to satisfy the six-month residency requirement of R.C. 3105.03.

         {¶10} Where, as here, the disposition of a Civ.R. 12(B)(1) motion involves mixed questions of law and fact, we review the trial court's legal determinations de novo and must accept the trial court's findings of disputed facts if they are supported by competent, credible evidence. See Wilkerson v. Howell Contractors, Inc., 163 Ohio App.3d 38, 2005-Ohio-4418, 836 N.E.2d 29 (1st Dist), ¶ 10, citing Rijo v. Rijo, 1st Dist. Hamilton No. C-930704, 1995 WL 35730 (Jan. 31, 1995), overruled on other grounds, Griffin I, 1st Dist. Hamilton No. C-170026, 2017-Ohio-8450.

         {¶11} Audrey's initial response invokes the waiver doctrine. She contends James waived his right to raise the issue on appeal when he stipulated in the agreed entry allocating parental rights and responsibilities that "Ohio has * * * subject matter jurisdiction" over the complaint for divorce. But it is well settled that "litigants cannot vest a court with subject-matter jurisdiction by agreement." Cheap Escape Co., Inc. v. Haddox, LLC, 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 22; Glassman v. Glassman, 75 Ohio App. 47, 50, 60 N.E.2d 716 (1st Dist.1944); State v. Wyche, 1st Dist. Hamilton No. C-160678, 2017-Ohio-7041, ¶ 11. Accordingly, we reject the waiver argument and address the issue of subject-matter jurisdiction on the merits.

         {¶12} Ohio's relevant statute on jurisdiction provides that "[t]he plaintiff in actions for divorce and annulment shall have been a resident of the state at least six months immediately before filing the complaint." R.C. 3105.03. The statute must be applied strictly. Barth v. Barth, 113 Ohio St.3d 27, 2007-Ohio-973, 862 N.E.2d 496, ¶ 11.

         {¶13} As used in R.C. 3105.03, "resident" 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, citing Coleman v. Coleman, 32 Ohio St.2d 155, 162, 291 ...


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