COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71336 TERRY L. REESE : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CARL A. REESE, ET AL. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 22, 1997 CHARACTER OF PROCEEDING Appeal from Court of Common Pleas Domestic Relations Division Case No. 237491 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JOHN E. MEYER, ESQ. BASIL RUSSO, ESQ. 5566 Pearl Road BASIL RUSSO & CO., L.P.A. Parma, Ohio 44129 691 Richmond Road Room 200 Richmond Hts., Ohio 44143 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Carl A. Reese appeals from the divorce decree of the Domestic Relations Court by contending that jurisdiction and venue of the divorce proceedings did not lie in Cuyahoga County; that the trial court abused its discretion in denying any visitation of the children by defendant; in fixing the termination date of the marriage on the date of the decree; and in awarding any spousal support to his ex-wife, plaintiff-appellee Terry L. Reese. We find no error and affirm. The parties were married on February 26, 1979. Two children were born of the marriage: Carl (d.o.b. 10/6/80) and a daughter, Terry (d.o.b. 2/9/88), who both reside with their mother. The plaintiff wife vacated the home with her children on November 4, 1994 after enduring a continuing pattern of physical abuse and threats against her life from the defendant which the lower court found constituted extreme cruelty. After staying in Columbus with her brother, she went to Florida with the children and stayed for a number of weeks with her parents. She commenced divorce proceedings in Cuyahoga County on November 25, 1994, three weeks after leaving the domicile. The matter was heard by a magistrate on April 1 and 2, 1996. A full transcript of the hearing is in the record before the Court. The magistrate's decision with Findings of Fact and Conclusions of Law was filed June 17, 1996. The defendant filed objections thereto which were denied by the trial court on August 29, 1996, - 3 - when it entered its Judgment Entry adopting the magistrate's decision. Defendant's timely appeal ensued. We will address the assignments of error in the order asserted. I. IT WAS AN ABUSE OF DISCRETION BY THE TRIAL COURT, AND CONTRARY TO THE EVIDENCE, TO FIND JURISDICTION AND VENUE TO BE PROPER FOR THE COMPLAINT OF PLAINTIFF IN CUYAHOGA COUNTY, OHIO. R.C. 3105.03 addresses the residency requirements for plaintiffs seeking divorce in Ohio: 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. During the fifteen year marriage the couple resided continuously in Cuyahoga County. The trial court found that approximately twenty-one days prior to plaintiff filing for divorce, she fled the marital residence with the children to avoid domestic violence and threats that defendant visited upon them. Plaintiff's fear of defendant was such that she took his gun and sought temporary shelter in Florida with her parents. After she filed for divorce, she returned to Ohio and acquired a residence in Franklin County, Ohio where she has remained. Despite the fact that plaintiff sought temporary shelter with her parents in Florida and subsequently filed a divorce complaint, the trial court found that she continued to reside in Ohio and the court had jurisdiction to proceed with the case. (Journal Entry Vol. 2857). We would - 4 - agree that mere temporary absence from the state under the circumstances presented did not operate as a change of residence for plaintiff. There was no evidence that during her brief absence from Ohio plaintiff became a resident of Florida or any other state. A resident for purposes of R.C. 3105.03 is one who possesses a domiciliary residence, i.e., "a residence accompanied by an intention to make the State of Ohio a permanent home." Coleman v. Coleman (1972), 32 Ohio St.2d 155, 162. In Hager v. Hager (1992), 79 Ohio App.3d 239, 243, the court stated: The word residence imports an actual physical presence within the state. It signifies an abode or place of dwelling ***. "Domicile" *** conveys a fixed, permanent home. It is the place to which one intends to return and from which one has no present purpose to depart ***. [It is] the relationship which the law creates between an individual and a particular locality ***. A party's domicile usually coincides with his place of residence. However, while an individual may have several residences, he can be domiciled in only one place at a given time. *** Id. at 244. A person can only have one domicile at any given time. Snelling v. Gardner (1990), 69 Ohio App. 196, 201; Cleveland v. Surella (1989), 61 Ohio App.3d 302, 304; Board of Education v. Dille (1959), 109 Ohio App. 344. A person does not lose a domicile until a new one is acquired. E. Cleveland v. Landingham (1994), 97 - 5 - Ohio App.3d 385, 390. The Ohio Supreme Court in In re Estate of Hutson (1956), 165 Ohio St. 115, 119, held: When a person's legal residence is once fixed, as it was in this case of decedent in Bethel, Ohio, it requires both fact and intention to change it. In other words, to effect a change of domicile from one locality, country, or state to another, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place, with the intention of making the last acquired residence a permanent home. The acts of the person must correspond with such purpose. The change of residence must be voluntary; the residence at the place chosen for the domicile must be actual and to the fact of residence there must be added the animus manendi, which means the mind to remain. *** Further, the concept of "domiciliary residence" does not preclude the plaintiff's departure from the state. Once the essential elements of physical presence and intention co-exist, domiciliary residence in the state is established and presumed to continue in the absence of proof by a preponderance of the evidence that the plaintiff "(1) [has] intended to change such domicile, (2) has intended to select a new domicile, and (3) has accompanied such intention with acts indicating a bona fide selection of a new domicile." Saalfeld v. Saalfeld (1949), 86 Ohio App. 225, 226. In the case below, there was competent and credible evidence to support a determination that the wife was a resident of Ohio for purposes of R.C. 3105.03. As a matter of public policy, defendant's argument must also be rejected. To find that the trial court lacked jurisdiction - 6 - would supersede the paramount issue of protecting individuals against domestic abuse. The trial court found that plaintiff and her children were subjected to an "intimidating environment" brought about by the defendant's frequent physical abuse and threats. To find that victims of domestic violence who seek temporary shelter in another state forfeit their rights as residents would deny such victims the protection available to them under R.C. Chapter 3113 during the period they would be required to re-establish residency. We will not endorse such a theory. Defendant's other argument that the trial court was not a proper forum for purposes of venue is equally without merit. R.C. 3105.03 further states: Actions for divorce and annulment shall be brought in the proper county for commencement of action pursuant to the Rules of Civil Procedure. Civ.R. 3(B) specifies that venue may be found in more than one county; to wit: (1) The county in which the defendant resides; * * * (6) The county in which all or part of the claim for relief arose; * * * (9) In actions for divorce *** in the county in which the plaintiff is and has been a resident for at least ninety days immediately preceding the filing of the compliant. * * * - 7 - (11) If there is no available forum in division (B)(1) to B(10) of this rule: (a) In a county in which defendant has property ***. Where proper jurisdictional requirements are met, a divorce action may be brought in more than one county. See Fuller v. Fuller (1972), 32 Ohio App.2d 303; Glover v. Glover (1990), 66 Ohio App.3d 724, 728; Wise v. Wise (1983), 8 Ohio App.3d 243. Therefore, even if arguably plaintiff was not a resident of Cuyahoga County, so long as defendant was a resident she could commence her action here because this is the county where the defendant resides and where the action arose. Venue is proper where the plaintiff chooses a court located in any county described in the first nine provisions of Civ.R. 3(B). These provisions have equal status, and a plaintiff may choose among them with unfettered discretion. Morrison v. Steiner (1972), 32 Ohio St.2d 86, 89; Taylor v. Taylor (1992), 84 Ohio App.3d 445, 446; Glover, supra. We find no error in the trial court's ruling that jurisdiction and venue were properly found in Cuyahoga County. Assignment of Error I is overruled. II. IT WAS AN ABUSE OF DISCRETION BY THE TRIAL COURT TO DENY ANY VISITATION AT ALL TO THE APPELLANT WITH HIS MINOR CHILDREN, WHEN THE EVIDENCE SUPPORTS, AT THE VERY LEAST, ENTITLEMENT TO VISITATION WITH SPECIFIED CONDITIONS. As we found in Pettry v. Pettry (1984), 20 Ohio App.3d 350, a noncustodial parent's right of visitation with his children is a - 8 - natural right and should be denied only under extraordinary circumstances such as unfitness of the noncustodial parent or a showing that visitation with the noncustodial parent would cause harm to the children. If there is clear and convincing evidence to show that visitation may present a significant risk of serious emotional or physical harm to the child, the court may deny visitation. Johntonny v. Malliski (1990), 67 Ohio App.3d 709; Pettry, supra; Pisani v. Pisani (Jan. 25, 1996), Cuyahoga App. No. 67814 and 68044, unreported. The trial court has broad discretion in determining matters related to visitation. Appleby v. Appleby (1986), 24 Ohio St.3d 39, 41. The trial court, however, must exercise that discretion in a manner which protects the best interest of the child. Bedine v. Bedine (1988), 38 Ohio App.3d 173. Such a situation may arise due to the mental health of the noncustodial parent. Davis v. Davis (1988), 55 Ohio App.3d 196; Pisani, supra. In this case, the plaintiff presented sufficient evidence for the trial court to properly find that no visitation was appropriate, even supervised, until the parties obtained counselling. The transcript is replete with testimony that the defendant exhibited paranoid tendencies and abusive behavior towards plaintiff and his children. - 9 - Plaintiff testified that defendant believed that "everyone" was out to get him. The defendant feared his co-workers, the tenants, the neighbors, his relatives and his own family. (Tr. 95, 101). She testified about her husband's bouts with alcohol and the accompanying death threats against her and her son. (Tr. 94-96, 116-118). She also referenced one occasion where defendant kicked her in the lower back when she was eight months pregnant. (Tr. 115-116). Plaintiff further testified that defendant threatened to shoot her with his .38 caliber revolver. (Tr. 93, 117). The Guardian Ad Litem and social worker from Family Conciliation Services supported these conclusions from their observation of the family and the defendant. There was ample evidence to support the proposition that defendant has serious mental or emotional problems. Appellant's brief (page 1) recognizes his abnormal behavior when he refers on page two to his "*** long-term temperamental or compulsive behavior ***." Plaintiff testified to the abuse that she and the children suffered during the marriage including repeated threats on her life as well as threats to the children. Her flight from the residence with the children and seeking refuge in Florida supported her fears. The children were afraid of their own father and did not want to see him. The defendant's own appearance and testimony did nothing to dispel the image that had been created by the other witnesses. Defendant suggested the children's fear may have been the result of brainwashing. (Tr. 76). - 10 - Defendant correctly acknowledges (Aplt's Brf. at 5) that his relationship with the children had "*** been marked by stressful encounters, and that the children may not wish to have visitation for themselves ***." Here, the evidence established that Carl Reese, age 14, had no interest in visitation with his father. His clinical interview revealed his belief that defendant is "crazy" and he is scared of him because he "threatened to kill us." He stated he would rather go to jail than visit with defendant. The younger child, daughter Terry, also lacks a desire to see defendant. Under the court's order, defendant is not denied all direct personal contact with the children. First, he is to have phone contact with them to be arranged by the Guardian Ad Litem. Second, he will have contact with them during counseling sessions as the trial court clearly intended. It is obvious that if and when defendant's conduct stabilizes and the chances for a normal relationship develop, the court would consider modifying the visitation rules. We find the trial court did not abuse its discretion in denying visitation to defendant while leaving the door open for resolution of visitation upon a proper showing by defendant pursuant to the court's order. We find no error in the trial court's disposition of this issue. Assignment of Error II is overruled. - 11 - III. IT WAS AN ABUSE OF DISCRETION BY THE TRIAL COURT TO FIX THE DATE OF THE TERMINATION OF THE MARRIAGE AS THE DATE OF THE FINAL HEARING, RATHER THAN THE DE FACTO TERMINATION, BECAUSE THE APPLICATION OF THE HEARING DATE TO THE QDRO CALCULATION RESULTS IN AN ARBITRARY AND INEQUITABLE LOSS OF PROPERTY RIGHTS TO APPELLANT. Defendant argues that it was an abuse of discretion by the trial court to find the duration of marriage to be from the date of marriage, February 26, 1979, to the date of final hearing, April 1, 1996. Defendant argues that the trial court should have used the date the parties separated, November 4, 1994, when plaintiff fled the domicile, as the de facto termination date. The determination as to when to apply a valuation date other than the actual date of divorce is within the discretion of the trial court and cannot be disturbed on appeal absent an abuse of discretion. Gullia v. Gullia (1994), 93 Ohio App.3d 653. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blackmore v. Blackmore (1983), 5 Ohio St.3d 217. In dividing marital property, a trial court possesses broad discretion to effect an equitable and fair property division. R.C. 3105.171; Worthington v. Worthington (1986), 21 Ohio St.3d 73. Defendant has failed to show an abuse of discretion in this case. For purposes of effecting an equitable division of property pursuant to R.C. 3105.18, a marriage is deemed terminated upon the entry of a decree of divorce by a court of competent jurisdiction. As stated in Day v. Day (1988), 40 Ohio App.3d 155, 158: - 12 - *** [I]n determining a date for division and valuation of property, the trial court should commence with the date the marriage is judicially terminated and make adjustments therefrom either as to property to be included or as to the value of included property, as equitable considerations may require. Generally, however, even for division of property purposes, a marriage is terminated only upon a decree being entered by a court of competent jurisdiction. R.C. 3105.171(A)(2) is consistent with Day. It provides that, except when the court determines that it would be inequitable, "during the marriage" means the period of time from the date of marriage through the date of the final hearing in the divorce action. A trial court does not necessarily abuse its discretion in using the date of trial as the valuation date rather than the date a party vacated the marital residence. Shannon v. Shannon (Jan. 28, 1993), Cuyahoga App. No. 61714, unreported; Frieden v. Frieden (June 14, 1990), Cuyahoga App. No. 57032, unreported; Fish v. Fish (April 28, 1988), Cuyahoga App. No. 53721, unreported. Defendant's reliance on the Gullia case is misplaced. In Gullia, the parties separated in January 1984. The appellant did not file a complaint for divorce until January 16, 1987 and the trial began on April 4, 1990. There the appellee argued that a large percentage of the marital assets listed in the divorce decree came into existence after the parties separated in 1984. The trial court fixed the trial date as the termination date of the marriage. This Court reversed because of the long period of separation and - 13 - the peculiar fact situation affecting extraordinary property rights. In the instant case, defendant's pension was in existence throughout the fifteen year marriage prior to the short separation of seventeen months. In Gullia, the appellee was awarded $200,200 in assets for property division, here the award of property division is minor. The Gullia fact situation is readily distinguishable. We acknowledge that each divorce is unique and that the trial court should be awarded broad discretion to consider all relevant factors in the case. Berish v. Berish (1982), 69 Ohio St.2d 318. Furthermore, public policy supports the magistrate's decision. Plaintiff left the marital residence because of the hostile environment, domestic violence and threats against her person. To establish a de facto date arising from the forced separation would reward defendant for his abusive behavior toward the plaintiff and the minor children. We find no abuse of discretion in the trial court's valuation of the marital assets, including defendant's pension, at the time of trial. Assignment of Error III is overruled. - 14 - IV. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING SPOUSAL SUPPORT WHERE THE ECONOMIC FACTORS SHOWN BY THE EVIDENCE AND FILINGS IN THIS CASE SUPPORT THE EQUITABLE CONCLUSION THAT NO SPOUSAL SUPPORT IS WARRANTED. Defendant argues that plaintiff's income plus child support exceeds her expenses without necessitating a further award of spousal support. This contention is not supported by the record. The magistrate's calculations establish that plaintiff has $1,711.33 in disposable monthly income. However, this figure includes the child support award and excludes the spousal support award. The trial court found that the wife's monthly expenses are $1,679.00. (Magistrate's Decision at 7). However, the magistrate did not include in these expenses the additional $925 per year plaintiff pays for health insurance. Instead, the magistrate correctly listed this expense on the child support computation worksheet attached to the decision. When this expense is included, the wife's total monthly expenses rise to $1,756.08, leaving a monthly deficit of approximately $44.75. It is only after including the spousal support award of $125 per month that plaintiff is left with an amount which exceeds her expenses by $61.92 monthly. This modest amount is hardly excessive to guard against unexpected expenses or inflationary pressures. The principles that guide our review of an award or denial of spousal support are set forth as follows in McCoy v. McCoy (1993), 91 Ohio App.3d 570, 579-80, citing Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67: - 15 - "Courts in this state derive their power to award sustenance alimony from the statutes. R.C. 3105.18(A) and (B) provide a trial court with guidelines for determining whether alimony is necessary and the nature, amount and manner of alimony payments. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 414, 75 O.O.2d 474, 482, 350 N.E.2d 413, 423. The trial court is provided with broad discretion in deciding what is equitable upon the facts and circumstances of each case, but such discretion is not unlimited. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 20 O.O.3d 318, 322, 421 N.E.2d 1293, 1299. A reviewing court cannot substitute its judgment for that of the trial court unless, considering the totality of the circumstances, the trial court abused its discretion. Holcomb, supra [44 Ohio St.3d], at 131, 541 N.E.2d at 599. As we noted in Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142, for an abuse of discretion to exist, the court's attitude must be unreasonable, arbitrary or unconscionable and not merely an error of law or judgment." Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 554 N.E.2d 83, 86- 87. Accordingly, in this case, we must examine the trial court's ruling under the totality of the circumstances and determine whether it acted unreasonably, arbitrarily or unconscionably. Concerning an award of spousal support, R.C. 3105.18(C) specifies the requisite factors the court must take into consideration. The magistrate gave full consideration to the totality of the circumstances and factors required by R.C. 3105.18. The magistrate took into effect the length of the marriage, the earning potential and work experience of the parties, as well as the custody issues. We cannot find that the court ignored the law or abused its discretion in granting spousal support under the circumstances - 16 - presented. This case does not represent a situation where the spouse it attempting to sustain a luxurious lifestyle. Plaintiff's annual income is $15,392. From this amount, plaintiff must support two children and work outside the home full time. The magistrate's decision was also based on some "questionable" expenses listed by defendant, such as a $500 per month "unexplained" insurance expense and $300 per month installment payment. Further, defendant does not allege that his payments exceed his income, he only contends the award of spousal support is "surplusage." Plaintiff correctly states that a court should consider all factors as listed in R.C. 3105.18(C)(1) regarding spousal support. Kaechele v. Kaechele (1988), 35 Ohio St.3d 93. However, defendant's counsel fails to state specifically what portions of R.C. 3105.18(C)(1) the trial court neglected to apply. The determination of spousal support is an art not a science and we see no reason to disturb the trial court's exercise of discretion in the matter. Assignment of Error IV is overruled. Judgment affirmed. - 17 - It is ordered that appellee recover of appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas Domestic Relations Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J., and NAHRA, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .