Botello v. Gonzalez

2024 Ohio 3210, 248 N.E.3d 1000

• Court: Ohio Court of Appeals
• Decided: August 23, 2024
• Docket: 2024-CA-20
• Status: Published

Opinion

[Cite as Botello v. Gonzalez, 2024-Ohio-3210.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

YOLANDA FERNANDEZ BOTELLO : : Appellant : C.A. No. 2024-CA-20 : v. : Trial Court Case No. 23-DR-0033 : SAUL MENDEZ GONZALEZ : (Appeal from Common Pleas Court- : Domestic Relations) Appellee : :

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OPINION

Rendered on August 23, 2024

LOUIS E. VALENCIA, II, Attorney for Appellant

SAUL MENDEZ GONZALEZ, Pro Se Appellee

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LEWIS, J.

{¶ 1} Plaintiff-Appellant Yolanda Fernandez Botello appeals from a judgment of

the Domestic Relations Division of the Clark County Common Pleas Court, which found

that the court lacked subject matter jurisdiction over Botello’s complaint for divorce based

on her refusal to submit documentation regarding her immigration status. For the -2-

following reasons, we will reverse the judgment of the trial court and remand the cause

for the trial court to proceed with the final divorce hearing.

I. Facts and Course of Proceedings

{¶ 2} On February 3, 2023, Botello filed a complaint for divorce. According to her

complaint, Botello married Defendant-Appellee Saul Mendez Gonzalez in Springhill,

Ohio, on August 16, 2004. Botello and Gonzalez separated in September 2006 after

one child was born as issue of their marriage. When the complaint was filed, Botello

lived with this child in Medway, Ohio. She also alleged in her complaint that she had

been a resident of Ohio for at least six months and of Clark County for at least 90 days

immediately prior to the filing of the complaint.

{¶ 3} The paperwork Botello submitted with her complaint for divorce included

copies of birth certificates for Botello’s other two children, who were born in 2010 and

2013. These two children were unrelated to Gonzalez. Both birth certificates noted that

Botello was born in Mexico but that she lived in New Carlisle, Ohio, at the time of the

births. When she filed her complaint for divorce, Botello requested a Spanish interpreter

for all scheduled hearings.

{¶ 4} Botello requested service by publication on her husband, which the trial court

approved. Botello’s husband did not file any responsive pleading in the time provided by

the Rules of Civil Procedure. The matter was scheduled for a final uncontested hearing

on October 26, 2023. Immediately prior to the hearing, the trial court met with Botello’s

counsel off the record “and inquired as to whether the Plaintiff is, in fact, a lawfully -3-

documented immigrant.” Entry of Dismissal (Mar. 12, 2024), p. 2. According to the trial

court, Botello’s counsel answered in the affirmative but was unable to provide the court

with the proper documentation at that time. Id. As a result, the trial court decided to

continue the hearing until it had determined that it had proper jurisdiction to proceed with

the case.

{¶ 5} On January 18, 2024, Botello’s attorney contacted the administrator of the

trial court to request a final hearing date. Id. As a result, a hearing date was scheduled

for March 7, 2024. However, on January 22, 2024, the trial court issued an order finding

that it was “appropriate to obligate Plaintiff’s counsel” to provide the court with

documentation showing that Botello was “a properly documented immigrant which would

then make her eligible to be a bona fide resident of the state of Ohio for at least six

months, as required by O.R.C. 3105.03.” (Emphasis in original.) Entry (Jan. 22, 2024),

p. 1-2. The trial court concluded that “[f]ailure to provide such documentation may result

in a dismissal of the within matter, for lack of jurisdiction.” Id. at 2.

{¶ 6} On March 7, 2024, a final evidentiary hearing was held. The trial court

summarized the procedural posture of the matter and then inquired whether Botello was

prepared to submit documentation showing that she was lawfully in the United States.

Botello’s counsel responded that he did not believe the trial court had the legal authority

to inquire into that subject and that his client was prepared to present evidence that she

had been a resident of Ohio for at least six months immediately prior to filing her complaint

for divorce. Counsel cited the Ohio Supreme Court’s decision in Barth v. Barth, 2007-

Ohio-973, for the proposition that the residency requirement in R.C. 3105.03 focused -4-

solely on whether Botello could prove that she was a resident of Ohio for the six-month

period immediately preceding the date on which she filed her complaint for divorce. The

trial court disagreed with counsel’s interpretation of Barth and refused to accept any

evidence regarding whether Botello had resided in Ohio for the six months prior to the

filing of the complaint. Rather, the trial court stated:

I’m going to dismiss the case and you can take this matter wherever

you want to take it, and we’ll get a legal interpretation of where we are

because I would need that documentation pursuant to my order, because I

don’t believe I have jurisdiction to proceed in this case if your client is not in

this country lawfully, and you’re not prepared to provide me, you’re not

willing to provide me with that information that I have requested to determine

if I have jurisdiction.

Tr. 8-9.

{¶ 7} On March 12, 2024, the trial court dismissed the case. The trial court

explained that Botello’s request for a Spanish interpreter along with the documents that

showed she was born in Mexico in 1982 made it “logical and necessary for this Court to

inquire as to [Botello’s] immigrant status.” Entry of Dismissal, p. 1. The court then

stated that “an undocumented immigrant who is presently in this country without proper

legal authority is unable to satisfy the six month Ohio residency requirement.” Id. at 3.

The trial court concluded that “the Plaintiff herein has failed to provide this Court with

sufficient evidence to enable the Court to determine if it does, in fact, have jurisdiction to

proceed in the within matter.” Id. at 4. Botello filed a timely notice of appeal from the -5-

trial court’s dismissal of her divorce action.

II. The Trial Court Erred by Adding an “Immigration Status” Requirement to R.C.

3105.03

{¶ 8} Botello’s two assignments of error are interrelated and will be addressed

together. They state:

THE TRIAL COURT ERRED AS A MATTER OF LAW IN

DISMISSING THE PLAINTIFF’S DIVORCE ACTION FOR LACK OF

JURISDICTION UNDER R.C. § 3105.03, BASED ON THE PLAINTIFF’S

IMMIGRATION STATUS.

THE TRIAL COURT ERRED AS A MATTER OF LAW IN APPLYING

ITS OWN INTERPRETATION OF THE UNAMBIGUOUS AND

ESTABLISHED LANGUAGE IN R.C. § 3105.03 TO DISMISSING THE

PLAINTIFF’S DIVORCE ACTION FOR LACK OF JURISDICTION BASED

ON THE PLAINTIFF’S IMMIGRATION STATUS.

{¶ 9} “A trial court’s decision as to whether it has jurisdiction is a legal

determination, which is reviewed on appeal de novo.” Freels v. Powers-Freels, 2015-

Ohio-3915, ¶ 13 (2d Dist.). “Divorce is a creature of state statute, and the power of the

General Assembly over the entire subject of marriage, as a civil status, and its dissolution,

is unlimited except as restricted by the state and federal constitutions.” Coleman v.

Coleman, 32 Ohio St.2d 155, 159 (1972). “The General Assembly has granted to courts

of common pleas, including domestic relations divisions of those courts, ‘full equitable -6-

powers and jurisdiction appropriate to the determination of all domestic relations matters,’

including claims for divorce.” Mullinix v. Mullinix, 2023-Ohio-1053, ¶ 17 (10th Dist.),

quoting R.C. 3105.011(A). Indeed, “states alone have the prerogative of creating and

overseeing this important institution [of marriage].” Coleman at 160, citing Pennoyer v.

Neff, 95 U.S. 714, 722 (1877), and Bodie v. Connecticut, 401 U.S. 371, 376 (1970).

{¶ 10} R.C. 3105.03, which governs residency requirements for divorce actions in

Ohio, states in part:

The plaintiff in actions for divorce and annulment shall have been a

resident of the state at least six months immediately before filing the

complaint. Actions for divorce and annulment shall be brought in the

proper county for commencement of action pursuant to the Rules of Civil

Procedure. The court of common pleas shall hear and determine the case,

whether the marriage took place, or the cause of divorce or annulment

occurred, within or without the state.

{¶ 11} The Ohio Supreme Court has held that R.C. 3105.03 “is clear: in order to

file for divorce in Ohio, the plaintiff must have been an Ohio resident for six months

immediately before the filing of the complaint. Therefore, the statute must be applied

strictly and without interpretation.” Barth, 2007-Ohio-973, at ¶ 11. The Ohio Supreme

Court previously defined “resident” in this context as follows: “one who possesses a

domiciliary residence, a residence accompanied by an intention to make the state of Ohio

a permanent home. Such an intention is known only by the individual, which intention,

naturally, is subject to honest change from time to time.” Coleman at 162. -7-

{¶ 12} “Every person must have a domicile somewhere, and that domicile is not

lost until a new one is acquired.” Holtz v. Holtz, 2006-Ohio-1812, ¶ 18 (2d Dist.), citing

E. Cleveland v. Landingham, 97 Ohio App.3d 385, 390 (8th Dist. 1994). “A person

abandons his old domicile and acquires a new one only when he chooses a new domicile,

establishes an actual residence in the chosen domicile, and demonstrates a clear intent

that the new domicile become his primary and permanent residence.” Id. “In a divorce

action, a plaintiff's domicile is a question of intent and the plaintiff's representation will be

accepted unless facts and circumstances indicate that the plaintiff’s claimed intent cannot

be accepted as true.” Id. at ¶ 19, citing Polakova v. Polak, 107 Ohio App.3d 745, 748

(1st Dist. 1995).

{¶ 13} Despite the plain language of R.C. 3105.03 and the Ohio Supreme Court’s

“strict” test of residency, the trial court believed it was “logical and necessary to inquire”

into Botello’s “immigrant status” based solely on the fact that Botello (1) was born in

Mexico over 30 years prior to filing her complaint and (2) had requested a Spanish

interpreter. Entry of Dismissal, p. 1. Despite having no actual evidence before it that

Botello was not in the United States lawfully, the trial court decided that it could not

proceed with her complaint for divorce until Botello proved that she was in the United

States lawfully. The trial court concluded “that an undocumented immigrant who is

presently in this country without proper legal authority is unable to satisfy the six month

Ohio residency requirement which was enacted by the Ohio legislature on January 1,

1991.” Id. at 3. The only authority cited by the trial court in its dismissal entry was R.C.

3105.03 and Barth. But neither of these authorities support what the trial court did in this -8-

case.

{¶ 14} The Ohio Supreme Court has made it clear that the plain language of R.C.

3105.03 “should be applied without interpretation.” Barth, 2007-Ohio-973, at ¶ 10, citing

Wingate v. Hordge, 60 Ohio St.2d 55, 58 (1979). Further, the Ohio Supreme Court has

cautioned that trying to “interpret” the plain language of a statute “is not interpretation but

legislation, which is not the function of the courts.” Iddings v. Bd. of Edn. of Jefferson

Cty. School Dist., 155 Ohio St. 287, 290 (1951). The plain language of R.C. 3105.03

required the trial court to simply determine whether Botello was an Ohio resident for six

months immediately before she filed the complaint for divorce. But the trial court decided

to “interpret” R.C. 3015.03 in such a way as to add a duty on Botello to also establish her

immigration status. This was error.

{¶ 15} While not stating as much and not citing any authority for doing so, the trial

court appears to have dismissed Botello’s divorce action out of some sort of deference to

the federal immigration laws. Notably, several of the highest courts in other states have

resoundingly rejected such an approach. In re Marriage of Quijada and Dominguez,

2024 WL 3039725, * 5 (Ariz. June 18, 2024) (“It is difficult to conceive how asserting

jurisdiction over [divorce] proceedings even implicates federal immigration law, much less

poses an obstacle to accomplishing its objectives.”); Padron v. Padron, 281 Ga. 646, 646

(2007) (holding that “it is error to rule that a person is not a resident of Georgia for

purposes of filing a complaint for divorce based solely on the plaintiff’s immigration

status”); Bustamante v. Bustamante, 645 P.2d 40, 42 (Utah 1982) (“A state must

determine who qualifies as a resident under its own laws, and need not assist the Federal -9-

Government in enforcing the immigration and naturalization laws.”). We agree with

these courts. As noted above, the General Assembly’s power over the entire subject of

marriage, including divorce, is unlimited except as restricted by the Ohio and United

States Constitutions. The General Assembly enacted R.C. 3105.03 as part of this

power. We see nothing in the Ohio or United States Constitutions, or in R.C. 3015.03,

that required Botello to prove her immigration status before the trial court could exercise

its subject matter jurisdiction over her complaint for divorce.

{¶ 16} The assignments of error are sustained.

III. Conclusion

{¶ 17} Having sustained both assignments of error, the judgment of the trial court

will be reversed. The cause will be remanded for the trial court to proceed with the final

evidentiary hearing on Botello’s complaint for divorce.

WELBAUM, J. and TUCKER, J., concur.