Court of Appeals of Ohio, First District, Hamilton
AUDREY N. GRIFFIN, Plaintiff-Appellee,
JAMES A. GRIFFIN, Defendant-Appellant.
From Hamilton County No. DR-1501954 Court of Common Pleas,
Domestic Relations Division
Appealed From Is: Affirmed
Zachary D. Smith, LLC, and Zachary D. Smith, for
Legal Group and Mark C. Eppley, for Defendant-Appellant.
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.
Facts and Procedure
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.
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.
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.
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.
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.
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.
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.
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.
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,
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
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,
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 ...