[Cite as Mullinix v. Mullinix, 2023-Ohio-1053.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Logan E. Mullinix, :

Plaintiff-Appellee, : No. 22AP-491

(C.P.C. No. 17DR-0399)

v. :

(REGULAR CALENDAR)

Pamela R. Mullinix, :

Defendant-Appellant. :

D E C I S I O N

Rendered on March 30, 2023

On brief: Logan E. Mullinix, pro se.

On brief: Marc Fagin, for appellant. 

APPEAL from the Franklin County Court of Common Pleas, 

Division of Domestic Relations

BOGGS, J.

{¶ 1} Defendant-appellant, Pamela R. Mullinix, appeals the judgment of the 

Franklin County Court of Common Pleas, Division of Domestic Relations, which denied her 

post-decree motion to dismiss, amended motion to dismiss, and motion for summary 

judgment in this divorce proceeding. For the following reasons, we affirm the trial court’s 

judgment. 

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 2} Pamela and plaintiff-appellee, Logan E. Mullinix, were married in September 

1988. Logan initiated this action by filing a complaint for divorce in February 2017. In his 

complaint, Logan identified his address as 7376 Tumblebrook Drive in New Albany, Ohio. 

He alleged that he had been an Ohio resident for more than six months immediately 

preceding the filing of his complaint and had been a resident of Franklin County for more 

than 90 days immediately preceding the filing of his complaint. In her answer, Pamela 
No. 22AP-491 2

admitted Logan’s factual allegations about his residence. With her answer, Pamela also 

filed a counterclaim for divorce in which she alleged that she had been an Ohio resident for 

at least the immediately preceding six months. 

{¶ 3} On May 11, 2018, the matter came before the trial court on both Logan’s 

complaint and Pamela’s counterclaim for divorce, and the trial court filed an Agreed Entry 

and Decree of Divorce (“agreed entry”), signed by both parties and their attorneys. The

agreed entry states that “[b]oth parties were residents of Ohio for more than six months 

* * * immediately preceding the filing of the complaint,” that the court “has jurisdiction to 

determine all of the issues raised by the pleadings,” and that the parties had stipulated that

venue was proper in Franklin County. (May 11, 2018 Agreed Entry & Decree of Divorce at 

1.) The agreed entry awards a judgment of divorce to both Logan and Pamela. Neither 

party appealed the judgment. 

{¶ 4} Since the filing of the agreed entry in May 2018, this matter has come before 

the trial court on numerous motions, including motions for contempt, to compel discovery,

for protective orders, and for attorney fees. Pamela has also attempted on multiple 

occasions to have the agreed entry set aside and/or to have the entire case dismissed. The 

trial court aptly characterized the litigation as “tumultuous.” (July 11, 2022 Decision &

Jgmt. Entry at 1.) 

{¶ 5} Pamela first attempted to have the agreed entry set aside in May 2019 by 

filing a Civ.R. 60(B) motion for relief from judgment. Pamela argued that Logan had 

repeatedly failed to meet his obligation under the agreed entry to pay the mortgage on the 

marital home, that Logan had misrepresented the value of his personal property, and that

based on the purportedly false assumption that she received a greater proportion of the 

marital property, she should have been entitled to spousal support. Following Pamela’s 

presentation of evidence at a hearing on her Civ.R. 60(B) motion, the trial court granted 

Logan’s oral motion to dismiss the motion. This court affirmed the trial court’s judgment

in Mullinix v. Mullinix, 10th Dist. No. 21AP-206, 2022-Ohio-3398. 

{¶ 6} In December 2021, Pamela again asked the trial court to set aside the agreed 

entry, this time by filing a motion to dismiss, pursuant to Civ.R. 12(B)(1) and (3). There, 

for the first time, Pamela argued that the trial court lacked subject-matter jurisdiction over 

this action. Contrary to her admission in her answer and to the stipulation in the agreed 
No. 22AP-491 3

entry, Pamela argued that Logan had not been a resident of Ohio for at least six months 

immediately preceding the filing of his complaint, as required by R.C. 3105.03.

1

 She 

claimed that Logan left the marital residence in New Albany at the end of August 2016, 

moved to Tennessee, and never returned. She also alleged that Logan obtained a Tennessee 

driver’s license in December 2016, purportedly based on a declaration of residency in that 

state. To preemptively discredit anticipated defenses, Pamela argued that res judicata, 

waiver, and estoppel are inapplicable because the trial court did not “factually determine[] 

the prerequisites for either jurisdiction or venue in the first place.” (Dec. 6, 2021 Mot. to 

Dismiss at 3.) 

{¶ 7} Pamela filed an amended motion to dismiss in May 2022. The amended 

motion incorporated by reference the original motion to dismiss, but it also included an 

additional claim for attorney fees that Pamela had incurred from the inception of this case. 

{¶ 8} In February 2022, Pamela filed a motion for summary judgment “on her 

Motion to Dismiss,” again arguing that the trial court lacked subject-matter jurisdiction

over the divorce action. (Feb. 17, 2022 Mot. for Summ. Jgmt. at 1.) Although the motion 

for summary judgment restated the legal arguments raised in her motion to dismiss, 

Pamela supported her motion for summary judgment with additional evidence—including 

Logan’s deposition testimony, Logan’s Tennessee driver’s license, and Logan’s Tennessee 

Business Tax License—to bolster her claim that Logan has been a resident of Tennessee 

since late 2016. As a result of the claimed lack of jurisdiction, Pamela argued that the 

divorce action was void ab initio. 

{¶ 9} The trial court denied Pamela’s motion to dismiss, amended motion to 

dismiss, and motion for summary judgment. It first held that Pamela’s motions were 

procedurally improper because motions to dismiss pursuant to Civ.R. 12 and for summary 

judgment pursuant to Civ.R. 56 are motions for pretrial remedies that cannot be granted 

post-judgment. Nevertheless, the court went on to consider and to reject the merits of

Pamela’s jurisdictional argument as if she had raised it in a motion to vacate the court’s 

judgment. After noting its statutory jurisdiction over divorce actions generally, pursuant 

to R.C. 3105.011, the court stated, “According to the record, affidavits filed, admission from 

1 She likewise contended that venue was improper in Franklin County under Civ.R. 3(C)(9), because Logan 

had not been a resident of the county for 90 days immediately prior to filing for divorce. 
No. 22AP-491 4

[Pamela], stipulations, and representations made to this Court at the time of the Agreed 

Decree the parties were both residents in the state of Ohio at least six months prior to filing 

the Complaint.” (Emphasis sic.) (July 11, 2022 Decision & Jgmt. Entry at 5.) It went on to 

state that, even if Logan was not a resident of the state immediately preceding the filing of 

his complaint, Pamela was an Ohio resident and properly invoked the court’s jurisdiction 

by filing her counterclaim. Id. Accordingly, the court concluded that it had jurisdiction to 

grant the parties a divorce. 

{¶ 10} Pamela has appealed the trial court’s judgment. In her single assignment of 

error, she states that the trial court erred by denying her motion to dismiss, amended 

motion to dismiss, and motion for summary judgment. 

II. ANALYSIS

{¶ 11} Pamela raises numerous issues under her assignment of error, but the crux 

of her argument is that pursuant to R.C. 3105.03, the trial court lacked subject-matter 

jurisdiction because Logan was not an Ohio resident for six months immediately preceding 

the filing of his complaint. 

A. Final Appealable Order

{¶ 12} Before turning to the question of the trial court’s jurisdiction, we first 

consider our own. Ohio’s courts of appeals have jurisdiction “to review and affirm, modify, 

or reverse judgments or final orders.” Article IV, Section 3(B)(2), Ohio Constitution. 

R.C. 2505.02(B) defines “final order” as including “[a]n order that affects a substantial right 

made in a special proceeding or upon a summary application in an action after judgment.” 

R.C. 2505.02(B)(2). 

{¶ 13} If an appeal is taken from an order that is not a final appealable order, the 

appellate court lacks jurisdiction and must dismiss the appeal. In re D.P., 10th Dist. No. 

06AP-179, 2006-Ohio-5098, ¶ 6. Even if neither party raises a jurisdictional question, we 

must sua sponte dismiss an appeal if it is not taken from a final appealable order or 

judgment. See Whitaker-Merrell v. Geupel Co., 29 Ohio St.2d 184, 186 (1972). 

{¶ 14} Pamela appeals the trial court’s entry denying her motions to dismiss and for 

summary judgment. Generally, neither the denial of a motion to dismiss nor the denial of 

a motion for summary judgment constitutes a final appealable order. State Auto. Mut. Ins. 

Co. v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, ¶ 8, citing Polikoff v. 
No. 22AP-491 5

Adam, 67 Ohio St.3d 100, 103 (1993); State ex rel. Overmeyer v. Walinski, 8 Ohio St.2d 23

(1966), citing Priester v. State Foundry Co., 172 Ohio St. 28 (1961). That general rule 

applies “with ‘equal force’ ” to decisions denying motions based on an alleged lack of

personal or subject-matter jurisdiction. Cooney v. Radostitz, 8th Dist. No. 110009, 2021-

Ohio-2521, ¶ 16. For example, in Copenhaver v. Copenhaver, 4th Dist. No. 05CA16, 2005-

Ohio-4322, ¶ 7, the court of appeals held that the denial of a motion to dismiss a divorce 

action for lack of jurisdiction under R.C. 3105.03 was not a final appealable order. See also 

Curie v. Curie, 11th Dist. No. 2004-A-0047, 2004-Ohio-3682. 

{¶ 15} A final order includes “[a]n order that affects a substantial right made in a 

special proceeding or upon a summary application in an action after judgment.” 

R.C. 2505.02(B)(2). Divorce qualifies as a special proceeding, Thomasson v. Thomasson, 

153 Ohio St.3d 398, 2018-Ohio-2417, ¶ 12, citing Wilhelm-Kissinger v. Kissinger, 129 Ohio 

St.3d 90, 2011-Ohio-2317, ¶ 6, and a party has a substantial right to have a dispute 

adjudicated by a court of competent jurisdiction. Copenhaver at ¶ 5. At least one Ohio 

appellate court has also held that an order denying relief from judgment in a domestic

relations case is an order upon a summary application in an action after judgment. 

Quesinberry v. Quesinberry, 2d Dist. No. 29192, 2021-Ohio-4680, ¶ 22. Appellate courts 

have nevertheless held that a trial court’s denial of a motion challenging its jurisdiction does 

not affect a substantial right. See Haskins v. Haskins, 104 Ohio App.3d 58, 61 (2d Dist. 

1995). An order “affects a substantial right for purposes of R.C. 2505.02(B)(2) only if ‘in 

the absence of immediate review of the order [the appellant] will be denied effective relief 

in the future.’ ” Thomasson at ¶ 10, quoting Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 

63 (1993). That rationale, however, does not apply in the same way when, as here, a party 

challenges the trial court’s jurisdiction post-judgment, when the merits of the parties’

claims have already been adjudicated and the time for appeal has run. See Quesinberry at 

¶ 26 (When considering the finality of a denial of relief from judgment, “[a]sking whether 

a party must await final judgment to appeal * * * does not make much sense.”).

{¶ 16} The trial court here found Pamela’s motions procedurally defective, stating 

that motions to dismiss and for summary judgment seek remedies that may be granted only 
No. 22AP-491 6

prior to trial or judgment.

2 But rather than simply denying Pamela’s motion on that 

ground, the trial court considered the merits of Pamela’s jurisdictional claim as if it were 

properly raised in a motion to vacate. A judgment denying a motion to vacate or for relief 

from judgment is a final appealable order. Colley v. Bazell, 64 Ohio St.2d 243, 245 (1980), 

citing Greenspahn v. Joseph E. Seagram & Sons, Inc., 186 F.2d 616 (2d Cir.1951); Russell 

v. Cunningham, 279 F.2d 797 (9th Cir.1960); 7 Moore, Federal Practice, Paragraph

60.30[3] (2d Ed.); McCormac, Ohio Civil Rules Practice (1980 Supp.), 101, Section 13-27. 

It “puts an end to any further action by the [trial] court and leaves [the court’s] judgment 

in full force and effect.” Greenspahn at 619. Thus, in Quesinberry, the Second District 

concluded that an immediate appeal was necessary when the trial court denied a motion to 

vacate a decree of dissolution, noting both that it would be “inequitable and impracticable”

to make the appellant wait until there were no matters pending in the trial court, and also 

that matters that might arise in the future would depend on the validity of the decree. Id. 

at 29. The same considerations weigh in favor of an immediate appeal here. Accordingly, 

we conclude that the trial court’s judgment, rejecting Pamela’s challenges to the trial court’s 

jurisdiction, was a final appealable order, which we may review. 

B. Jurisdiction of Domestic Relations Courts

{¶ 17} “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 powers and jurisdiction 

appropriate to the determination of all domestic relations matters,” including claims for 

divorce. R.C. 3105.011(A). See also Terry v. Terry, 10th Dist. No. 77AP-603, 1977 Ohio 

App. LEXIS 7433, *7 (Dec. 22, 1977). 

2 Pamela challenges the trial court’s procedural determination, citing Civ.R. 75(A), which states that, except 

as modified or excepted in Civ.R. 75, the Rules of Civil Procedure apply in divorce proceedings. She also cites

Civ.R. 75(J), which provides for invocation of the domestic relations court’s continuing jurisdiction. Neither 

provision, however, authorizes the consideration of a pretrial motion during post-judgment proceedings. We 

also find unpersuasive Pamela’s unsupported argument that she was entitled to a trial on her motion to 

dismiss and that, therefore, her motion for summary judgment was a pretrial motion. (See Appellant’s Brief 

at 9-10.)
No. 22AP-491 7

{¶ 18} 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. 

For purposes of 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 sic.) Barth v. Barth, 113 Ohio St.3d 27, 2007-Ohio-973, ¶ 12, quoting 

Coleman at 162. The Supreme Court of Ohio has held that the statutory language of 

R.C. 3105.03 is unambiguous and has directed courts to apply that language strictly and 

without interpretation. Id. at ¶ 11. 

{¶ 19} The residency requirement in R.C. 3105.03 is a jurisdictional requirement. 

Thomas v. Thomas, 10th Dist. No. 03AP-1106, 2004-Ohio-2136, ¶ 4, citing Weightman v. 

Weightman, 10th Dist. No. 98AP-1021, 1999 Ohio App. LEXIS 2190, *4 (May 13, 1999). In 

both Thomas and Weightman, we treated compliance with R.C. 3105.03 as a prerequisite 

to the trial court’s subject-matter jurisdiction, noting that a judgment rendered by a court 

that lacks subject-matter jurisdiction is void. Thomas at ¶ 4, citing Patton v. Diemer, 35 

Ohio St.3d 68 (1988), paragraph three of the syllabus; Weightman at *4. “[I]f the plaintiff 

in a divorce action fails to satisfy the residency requirement[], the trial court has no 

authority to grant a decree of divorce in the action.” Thomas at ¶ 4, citing McMaken v. 

McMaken, 96 Ohio App.3d 402, 405 (2d Dist.1994). Lack of subject-matter jurisdiction is 

not a waivable defense. In re Claim of King, 62 Ohio St.2d 87, 89 (1980). 

C. Parties May Stipulate to Facts Giving Rise to Jurisdiction

{¶ 20} Parties to an action may not confer jurisdiction on a court by mutual consent. 

Beatrice Foods Co. v. Porterfield, 30 Ohio St.2d 50, 54 (1972). They may, however,

stipulate to facts that are sufficient to confer jurisdiction on the court. Id. 

{¶ 21} Beatrice Foods concerned the First District Court of Appeals’ jurisdiction 

over an appeal from the Board of Tax Appeals. The notice of appeal set out facts that, if 

true, were sufficient to establish that the court had subject-matter jurisdiction over the

appeal pursuant to R.C. 5717.04. After the court of appeals sua sponte raised the question 
No. 22AP-491 8

of its jurisdiction, the parties filed a stipulation verifying the jurisdictional facts contained

in the notice of appeal, i.e., that the corporate taxpayer’s principal place of business and the 

residence of its statutory agent were in Hamilton County. Despite the parties’ stipulation, 

the court of appeals determined that the testimony and exhibits did not substantiate the

jurisdictional assertions in the notice of appeal, and it dismissed the appeal. The Supreme 

Court reversed, holding that the parties’ stipulation “remove[d] from the court’s 

consideration any question or controversy concerning the jurisdictional statement 

contained in the notice of appeal.” Id. In other words, a stipulation to the truth of facts 

necessary to establish the court’s jurisdiction “may suffice to confer jurisdiction through 

estoppel.” In re Palmer, 12 Ohio St.3d 194, 196 (1984), citing Beatrice Foods, paragraph 

one of the syllabus. Ohio courts of appeals, including this court, have applied the holding 

of Beatrice Foods to cases in which a defendant has raised a jurisdictional challenge based 

on nonsatisfaction of the statutory residency requirement for a divorce action. See, e.g.,

Kaydo v. Kaydo, 11th Dist. No. 2002-L-021, 2022-Ohio-4055, ¶ 34 (judgment not void for 

lack of subject-matter jurisdiction when defendant’s withdrawal of motion to dismiss left

plaintiff’s allegations regarding Ohio residency uncontested and effectively admitted); 

Weber v. Devanney, 9th Dist. No. 28876, 2018-Ohio-4012, ¶ 13-15 (trial court did not err 

in determining it had jurisdiction in light of wife’s admission to factual allegations and 

parties’ stipulation); Weightman; Sturgill v. Sturgill, 61 Ohio App.3d 94 (2d Dist.1989)

(defendant estopped from challenging subject-matter jurisdiction because he had admitted 

jurisdictional facts in his answer and had not appealed the divorce decree.).

{¶ 22} This court’s decision in Weightman is particularly instructive here. In her 

complaint for divorce, Donna Weightman alleged that she had been a resident of Ohio for 

more than six months and a resident of Franklin County for more than 90 days immediately 

preceding the filing of her complaint. Her husband, Brian Weightman, did not file a 

responsive pleading, did not appear for the final hearing, and did not appeal the decree of 

divorce. Five years later, however, Brian filed a motion for relief from judgment, arguing 

that the trial court had not possessed subject-matter jurisdiction over the action because 

Donna had not resided in Ohio for six months immediately preceding the filing of her 

complaint. The trial court denied Brian’s motion, and he appealed. 
No. 22AP-491 9

{¶ 23} In affirming the trial court’s judgment, we stated that “a litigant may not 

collaterally attack a divorce decree based upon the lack of subject matter jurisdiction * * *

when the factual predicate for such jurisdiction was originally admitted.” Weightman at 

*5. We held:

In her original complaint, [Donna] alleged facts satisfying the 

residency requirements. [Brian] was served with a copy of this 

complaint but never filed an answer. As such, [Brian] admitted 

the factual allegations that conferred subject matter 

jurisdiction over the divorce decree. Moreover, [Brian] failed to 

appeal the original divorce decree, which specifically held that 

the residency requirements had been satisfied. As such, * * * we 

hold that [Brian] is estopped from challenging the subject 

matter jurisdiction of the trial court over the original divorce 

decree.

Id. at *6-7.

{¶ 24} As Pamela points out in her appellate brief, this court did refuse to apply the 

rule from Beatrice Foods in Thomas. There, Theresa Thomas filed a complaint for divorce 

on February 7, 2002, and in a contemporaneously filed custody affidavit, stated that she 

had been an Ohio resident since August 1, 2001. Her husband, Ronald Thomas, initially 

admitted the jurisdictional facts alleged by Theresa, but he later challenged the court’s 

jurisdiction in an amended answer and motion to dismiss, in which he claimed that Theresa 

had not been a resident of Ohio for six months before filing her complaint. Specifically, 

Ronald argued that Theresa did not move to Ohio on August 1, 2001, as stated in her 

custody affidavit. The trial court granted Ronald’s motion to dismiss, and this court 

affirmed that judgment. We stated that there was no dispute that Theresa had not been an 

Ohio resident for at least six months before filing her complaint for divorce and that absent 

a convincing reason why Ronald should not have been able to raise lack of jurisdiction in 

his motion to dismiss, “there can be no dispute that the trial court lacked subject-matter 

jurisdiction.” Thomas at ¶ 5. 

{¶ 25} In Thomas, we rejected Theresa’s argument that Ronald’s admissions in his 

original answer and counterclaim for divorce precluded him from challenging the trial 

court’s jurisdiction. We specifically distinguished Thomas from Sturgill and Beatrice 

Foods. We distinguished Sturgill on the basis that the defendant there did not challenge

the trial court’s jurisdiction until after judgment, in a collateral attack, whereas Ronald filed 
No. 22AP-491 10

his motion to dismiss prior to the trial court issuing any final decree. We distinguished 

Beatrice Foods because Ronald’s initial admission to jurisdictional facts was based upon 

Theresa’s false statement of the date on which she moved to Ohio, which Ronald did not

then know was false. We held:

[Theresa] has not presented any convincing argument or 

authority as to why [Ronald] should have been prevented from 

raising the issue of subject-matter jurisdiction, which the trial 

court indisputably lacked. Although [Ronald] admitted to the 

jurisdictional allegation in his answer, he did so based upon the 

inaccurate allegations in the complaint and [Theresa’s] false 

affidavit. Further, [Ronald] filed his amended answer and 

motion to dismiss immediately after retaining new counsel and 

discovering [Theresa] did not move to Ohio on August 1, 2001. 

Also, the action never proceeded to final judgment, and 

[Theresa] did not unfairly rely upon the finality of any 

judgment. 

Thomas at ¶ 12.

{¶ 26} This case is not similarly distinguishable from Beatrice Foods. Even 

assuming that Logan’s allegation that he had been an Ohio resident for at least six months 

immediately preceding the filing of his complaint was untruthful, Pamela cannot claim that 

she was unaware of that untruthfulness when she filed her answer, admitting to Logan’s 

allegations regarding his residency, and authorized the agreed entry. To the contrary, her 

own evidence belies any such suggestion. Pamela’s affidavit filed in support of her motion 

for summary judgment suggests her belief that Logan intended to remain in Tennessee 

when he moved out of the marital home in August 2016. Pamela stated that Logan planned 

in the summer of 2016 that he would move to Tennessee to start an engineering consulting 

business with a friend, that she and the parties’ daughter would permanently join him in 

Tennessee once the marital residence had been sold, and that in August 2016 Logan took 

with him enough clothing and personal effects to live in Tennessee indefinitely. In 

November 2016, Pamela became aware that Logan had consulted a divorce attorney, and 

she refused to meet Logan at the attorney’s office. Yet despite that knowledge, Pamela

admitted to Logan’s allegations that he had been an Ohio resident for more than six months 

immediately preceding the filing of his complaint and a Franklin County resident for more 

the 90 days immediately preceding the filing of his complaint. She also stipulated in the 

agreed entry to the propriety of venue in Franklin County, to the trial court’s jurisdiction,
No. 22AP-491 11

and to the facts giving rise to that jurisdiction. Accordingly, we conclude that it is Thomas, 

not Beatrice Foods, that is distinguishable from this case.

{¶ 27} Pamela next argues that the holding of Beatrice Foods is inapplicable here 

because Logan’s residence presents a question of law, not a question of fact. In support of 

that assertion, she cites Hager v. Hager, 79 Ohio App.3d 239 (2d Dist.1992). There, 

Marjean Hager challenged the trial court’s subject-matter jurisdiction over a divorce 

complaint filed by her husband Joseph Hager, who was stationed at Wright Patterson Air 

Force Base. Following an evidentiary hearing, a referee concluded that Joseph intended to 

remain in Ohio after his retirement from the military and that he had established residence 

in Ohio for purposes of R.C. 3105.03. On appeal, the Second District stated that “residence”

includes the concept of domicile, “the place to which one intends to return and from which 

one has no present purpose to depart.” Hager at 244, citing Smerda v. Smerda, 48 Ohio 

Law Abs. 232, *13 (C.P.1947). The court cited an 1878 decision from the Supreme Court 

that describes domicile as “the relation[ship] which the law creates between an individual 

and a particular locality.” Sturgeon v. Korte, 34 Ohio St. 525, 534 (1878). The Second 

District did not, however, suggest that “residence”—or even “domicile”—is a question of 

law, rather than a question of fact. Indeed, the court stated that it is the plaintiff’s burden 

to establish residency by a preponderance of the evidence, thus reinforcing the factual 

nature of that inquiry. Therefore, Pamela’s reliance on Hager is misplaced. 

{¶ 28} Ohio appellate courts have specifically held that the question of a party’s 

residence and/or domicile presents a question of fact. See Apgar v. McClure, 12th Dist. No. 

82-02-0015, 1983 Ohio App. LEXIS 15832, *2 (Apr. 13, 1983) (“Whether or not * * * 

domicile existed [in a divorce action] is a question of fact”); Prod. Credit Assn. v. Jackson 

Prod. Credit Assn., 4th Dist. No. 380, 1982 Ohio App. LEXIS 14802, *6 (Apr. 29, 1982), 

citing 57 Ohio Jurisprudence 2d, Words & Phrases (“Residence is, almost always, a question 

of fact”); Drazen v. Drazen, 3d Dist. No. 9-80-44, 1981 Ohio App. LEXIS 12604, *6 (May 

8, 1981) (“There was a question of fact for resolution by the trial court and sufficient 

evidence of a credible nature * * * that the [plaintiff’s] residency persisted and jurisdiction 

existed.”). The Supreme Court of the United States has likewise described domicile, “upon 

which depends the power to exert judicial authority,” as a “crucial fact.” (Emphasis added.) 

Williams v. North Carolina, 325 U.S. 226, 230 (1945). Consistent with those courts’
No. 22AP-491 12

understandings of residence as a question of fact, we reject Pamela’s attempt to characterize 

the question of Logan’s residence as a question of law, as a means to avoid the effect of her 

admission. Having admitted and stipulated to facts sufficient to confer on the trial court 

jurisdiction over Logan’s complaint for divorce, Pamela may not challenge the trial court’s 

jurisdiction in a post-judgment collateral attack. 

D. The Trial Court had Jurisdiction Over Pamela’s Counterclaim for 

Divorce

{¶ 29} The trial court also held that, even if it did not have jurisdiction over Logan’s 

complaint for divorce because Logan was not a resident of Ohio for six months preceding 

the filing of his complaint, it had jurisdiction to grant the parties a divorce on Pamela’s 

counterclaim because there was no dispute that Pamela was an Ohio resident for the 

statutorily required period. In support of its holding, the trial court cited Columbus Metro. 

Hous. Auth. v. Flowers, 10th Dist. No. 05AP-87, 2005-Ohio-6615, ¶ 15, in which this court

stated, “As long as the court has jurisdiction of the parties and of the controversy,” a court 

may dismiss a complaint and yet retain jurisdiction over a properly asserted counterclaim, 

which the defendant may pursue independently. 

{¶ 30} Pamela argues that Flowers is inapplicable because the dismissal of the 

complaint there was not for lack of jurisdiction; she maintains that if the trial court lacked 

jurisdiction over Logan’s complaint, it necessarily lacked jurisdiction over her 

counterclaim. (Appellant’s Brief at 54.) We disagree. The relevant question is whether the 

trial court had jurisdiction over the parties and over the claim asserted via counterclaim, 

independent of the dismissed claim. In Wells Fargo Bank, N.A. v. Wick, 8th Dist. No. 

99373, 2013-Ohio-5422, ¶ 13, for example, the trial court dismissed the plaintiff’s 

foreclosure claim for lack of jurisdiction based on the bank’s lack of standing, but that 

dismissal did not deprive the trial court of jurisdiction over the defendants’ counterclaims 

for violations of the Truth in Lending Act, which could remain pending for independent 

adjudication. Pamela’s counterclaim for divorce had its own jurisdictional basis—her 

residency in Ohio for at least six months immediately prior to the filing of her 

counterclaim—that is not affected by any inadequacy in the jurisdictional basis for Logan’s 

claim. 

{¶ 31} This court touched on this issue, at least implicitly, in Thomas. There, we 

stated that the trial court could not have retained jurisdiction over the defendant’s 
No. 22AP-491 13

counterclaim for divorce after dismissing the plaintiff’s complaint. Thomas at ¶ 11. But the 

reason for that determination was that the defendant had dismissed the counterclaim, not 

that dismissal of the complaint for failure to comply with R.C. 3105.03 rendered any

counterclaim void. Id. Here, even had the trial court determined that it lacked jurisdiction 

to grant a divorce on Logan’s complaint, it would have had personal jurisdiction over the 

parties and subject-matter jurisdiction over Pamela’s counterclaim for divorce. 

III. CONCLUSION 

{¶ 32} Pamela’s admission of facts sufficient to vest the trial court with jurisdiction 

over this action precludes her post-judgment collateral attack. Moreover, the trial court 

had jurisdiction to independently grant the parties a divorce on Pamela’s counterclaim. 

Therefore, the trial court did not err in denying Pamela’s motion to dismiss, amended 

motion to dismiss, and motion for summary judgment. We accordingly affirm the 

judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations. 

Judgment affirmed.

BEATTY BLUNT, P.J. and DORRIAN, J., concur.