In re Name Change of Davis ( 2021 )

[Cite as In re Name Change of Davis, 2021-Ohio-3879.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
IN RE: NAME CHANGE OF: CASE NO. 9-21-05
JOVON RICHARD DAVIS OPINION
Appeal from Marion County Common Pleas Court
Probate Division
Trial Court No. 21 NCG 001
Judgment Reversed and Cause Remanded
Date of Decision: November 1, 2021
APPEARANCES:
Jovon Richard Davis, Appellant
Case No. 9-21-05
MILLER, J.
{¶1} Appellant, Jovon Richard Davis, appeals the January 13, 2021
judgment of the Marion County Court of Common Pleas, Probate Division, denying
his application to change his name. For the reasons that follow, we reverse.
Factual Background
{¶2} In 2009, Davis was convicted in Hamilton County, Ohio of murder and
aggravated robbery and sentenced to a term of 24 years to life in prison. State v.
Davis, 1st Dist. Hamilton No. C-090220, 2010-Ohio-5125, ¶ 17-19. Davis is
currently incarcerated in the Marion Correctional Institution.
{¶3} On January 5, 2021, Davis filed an application to change his name. In
his application, Davis stated that he had been a resident of Marion County for at
least one year immediately prior to the filing of the application.
{¶4} On January 13, 2021, the trial court denied Davis’s application,
concluding that Davis’s “involuntary incarceration in Marion County does not
confer residency status.”
{¶5} On February 8, 2021, Davis timely filed a notice of appeal.1 He raises
one assignment of error for our review.
Assignment of Error
The trial court abused its discretion when it denied appellant’s
application for change of name of adult [R.C. 2717.01], finding
1
The State of Ohio, though not a party to the proceedings in the trial court or on appeal, filed an appellate
brief in this matter. We have not considered the State’s brief for any purpose in deciding this appeal.
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that the appellant’s involuntary incarceration in Marion County
did not confer residency status.
{¶6} In his assignment of error, Davis argues the trial court erred by denying
his application to change his name. He maintains that the trial court misapplied the
venue provision of former R.C. 2717.01(A)(1) when it determined that he does not
“reside” in Marion County as required to file an application to change his name.
Standard of Review
{¶7} Ordinarily, we apply an abuse-of-discretion standard when reviewing
the denial of a name-change application. In re Change of Name of DeWeese, 148
Ohio App.3d 201, 2002-Ohio-2867, ¶ 7 (3d Dist.). However, to resolve Davis’s
assignment of error, we must determine the meaning of the word “resides” in former
R.C. 2717.01(A)(1). Statutory interpretation presents a question of law that we
review de novo. In re Adoption of O.N.C., 191 Ohio App.3d 72, 2010-Ohio-5187,
¶ 11 (3d Dist.). “When a court’s judgment is based on an erroneous interpretation
of the law, an abuse-of-discretion standard is not appropriate.” Med. Mut. of Ohio
v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, ¶ 13.
Analysis
{¶8} Davis filed his name-change application pursuant to former R.C.
2717.01, which provided that “[a] person desiring a change of name may file an
application in the probate court of the county in which the person resides.”
(Emphasis added.) R.C. 2717.01(A)(1) (Mar. 22, 2013) (current version at R.C.
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Case No. 9-21-05
2717.02 (Aug. 17, 2021)).2 The question is whether, under former R.C.
2717.01(A)(1), a person “resides” in a county by reason of their involuntary
incarceration there.
{¶9} Initially, we note that Ohio case law provides some support for the trial
court’s conclusion that Davis’s involuntary incarceration in Marion County does not
mean that he “resides” in Marion County. “[P]recedent in this state indicates that
[a person’s] residence is not altered by imprisonment or other involuntary
commitment.” State ex rel. Saunders v. Court of Common Pleas of Allen Cty., 34
Ohio St.3d 15, 16 (1987). In 1878, the Supreme Court of Ohio stated in dictum:
A person under confinement for crime can not [sic] adopt a new
residence until discharged from imprisonment. Such disability is said
to arise from the general principle that a person under the power and
authority of another possesses no right, or is incapacitated, to choose
a residence.
Sturgeon v. Korte, 34 Ohio St. 525, 535 (1878). In 1925, the First District Court of
Appeals held that “[r]esidence in a place, to produce a change of domicile, must be
voluntary. If therefore, it be by constraint or involuntary, as arrest, imprisonment,
etc., the antecedent domicile of the party remains.” Murray v. Remus, 4 Ohio Law
Abs. 7, 4 (1st Dist.1925). And in 1972, this court held that “[e]vidence merely of
2
In 2021 H.B. No. 7, the General Assembly reorganized and “recodifie[d] the law governing the change of
legal name process under R.C. Chapter 2717.” Ohio Legislative Service Commission, H.B. 7 Final Analysis
at 26, available at https://www.legislature.ohio.gov/download?key=17300&format=pdf (accessed Aug. 20,
2021). H.B. 7 distributed the various provisions of former R.C. 2717.01, with modifications, throughout
R.C. Chapter 2717. Id. The first sentence of former R.C. 2717.01(A)(1), which contained the venue
provision at issue in this case, is now codified in substantially identical form at R.C. 2717.02.
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commitment of the plaintiff to the Lima State Hospital does not prove the
establishment of residence [in Allen County] to provide venue for a divorce action
* * *.” Bowers v. Baughman, 29 Ohio App.2d 277 (3d Dist.1972), syllabus.
Accordingly, the trial court’s conclusion that Davis does not “reside” in Marion
County solely by reason of his incarceration there is not a radical departure from
Ohio precedent as such precedent instructs that a prisoner’s pre-imprisonment
county of residence generally remains his county of residence during his
imprisonment.3
{¶10} That said, these cases are not dispositive of Davis’s appeal. The
applicability of the principle expounded in these cases seems to turn on whether the
relevant statute or rule uses the word “resident” or some form of the word “reside.”
Courts have concluded that use of the word “resident” in a statute or rule implicates
traditional concepts of legal domicile, in the sense of a permanent home, where one
actually resides with the intent to remain. State ex rel. Saunders at 16 (concluding
that because former Civ.R. 3(B)(9) used the word “resident,” the county of
involuntary incarceration was not the county where prisoner was a “resident” for
purposes of venue in divorce action); In re Guardianship of Goins, 7th Dist.
Mahoning No. 02-CA-163, 2003-Ohio-931, ¶ 47-48 (following the rationale in State
ex rel. Saunders and concluding that because R.C. 2111.02(A) uses the word
3
There is nothing in the record indicating where Davis resided prior to his arrest and incarceration.
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“resident,” “the mere fact of incarceration in one county does not change one’s
residence or stop one from being a resident of the county where he was a resident
prior to incarceration”); see Coleman v. Coleman, 32 Ohio St.2d 155, 162 (1972)
(“The word ‘resident,’ as used in R.C. 3105.03, means one who possesses a
domiciliary residence, a residence accompanied by an intention to make the state of
Ohio a permanent home.”).
{¶11} In contrast, the Supreme Court of Ohio has suggested that statutes and
rules that use some form of the word “reside” should be treated differently from
those that use the word “resident”:
We note that [former] Civ.R. 3(B)(10) uses the term “resides,” rather
than the term “resident,” as is used in [former] Civ.R. 3(B)(9). In his
treatise on civil procedure, Judge McCormac suggests that the term,
“resides,” as used in [former] Civ.R. 3(B)(10), ought to be “liberally
construed and not confused with [the] requirements for domicile.”
McCormac, Ohio Civil Rules Practice (1986 Cum.Supp.) 14, Section
2.04.
Accordingly, we note that under some circumstances an incarcerated
or involuntarily committed person may be able to have an action
properly venued in the county of incarceration or commitment.
However, such a determination awaits a proper case.
State ex rel. Saunders at 17.
{¶12} This court recently interpreted the use of the term “resident” as used
in a municipal charter and stated:
Specifically, “[b]ecause ‘domicile’ and ‘residence’ are usually in the
same place, [the terms] are frequently used as if they had the same
meaning.” Schill v. Cincinnati Ins. Co., 141 Ohio St.3d 382, 2014-
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Ohio-4527, ¶ 25. “‘Domicile,’ however, means living in a locality
with intent to make it a fixed and permanent home, while ‘residence’
simply requires bodily presence as an inhabitant in a given place.” Id.In sum, “[a] person can have a residence that is not his or her
domicile,” and, “[t]hus, a person can have multiple residences, but can
have only one domicile.” Id. at ¶ 24-25.
State ex rel. Donahue v. Allen Cty. Bd. of Elections, 3d Dist. Allen No. 1-21-28,
2021-Ohio-3292, ¶ 22.
{¶13} This distinction between using the word “resident” and using some
form of the word “reside” lies at the heart of one of the only cases analyzing the
venue provision of former R.C. 2717.01(A)(1). See In re Hall, 135 Ohio App.3d 1(4th Dist.1999). In Hall, the Fourth District Court of Appeals was presented with
the same issue we now confront—whether a person “resides” in a given county for
purposes of former R.C. 2717.01(A)(1) due to the person’s involuntary
incarceration in that county. In concluding that a prisoner can establish that he
“resides” in the county of his incarceration for purposes of former R.C.
2717.01(A)(1), the lead opinion offered the following discussion:
The [name-change] application is to be filed in the county in which
the person resides. The application should set forth that the applicant
has been a bona fide resident of the county for at least one year prior
to the filing of the application. Research reveals little in the way of
authority as to whether a prisoner is a resident of the county where he
is incarcerated. McCormac advises us that when the party is an actual
person, he should be held to reside where he maintains a place of
abode. The term “resides” should be liberally construed and not
confused with the more technical requirements for a “domicile.”
Thus, a person may have more than one “residence” for the purpose
of the civil rules. See McCormac, Ohio Civil Rules Practice (2d
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Ed.1992), Section 2.04. These comments discuss Civ.R. 3,
while Civ.R. 73(B) specifically exclude the application of the general
venue rules to proceedings in the probate court. However, his
guidance is helpful in this matter.
Judge Stephenson, in [In re Paxson, 4th Dist. Scioto No. 91 CA 2008,
1992 WL 154139 (June 30, 1992)], addressed this issue. There, a
prisoner at the Southern Ohio Correctional Facility at Lucasville filed
his name change application affirming that he was a resident of that
Scioto County prison and had been for a year prior to filing.
Subsequently, the prisoner was transferred to another prison in
Richland County, and the Scioto County Probate Court dismissed his
application.
However, we found in Paxson that, for the purposes of the statute, it
was only necessary for the applicant to establish his residence in the
county at the time he filed the application. * * * The statute did not
require the applicant to continue as a resident of that county once such
residence had been established. Paxson, though incarcerated, had
established his residence, albeit involuntarily, in Scioto County for the
purposes of the statute, and the trial court erred in dismissing his
application when he was transferred.
(Emphasis sic.) Id. at 4-5 (lead opinion).
{¶14} We agree with the analysis of the lead opinion in Hall. Based on Hall,
and on the Supreme Court of Ohio’s observations in State ex rel. Saunders, we are
persuaded that the word “resides” in former R.C. 2717.01(A)(1) should be afforded
a liberal construction and that it is possible under former R.C. 2717.01(A)(1) for a
person to “reside” somewhere other than where their legal domicile makes them a
“resident.” Accordingly, a person can “reside” in the county of their involuntary
incarceration as required to file a name-change application under former R.C.
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2717.01(A)(1) even though they might not be considered a “resident” of that county
under a different statute or rule.
{¶15} Here, the trial court’s only basis for denying Davis’s name-change
application was its determination that Davis could not use his involuntary
incarceration in Marion County to establish that he “resides” in Marion County.
Because this determination was incorrect, the trial court erred by denying Davis’s
name-change application.
{¶16} Davis’s assignment of error is sustained.
Conclusion
{¶17} For the foregoing reasons, Davis’s assignment of error is sustained.
Having found error prejudicial to the appellant herein in the particulars assigned and
argued, we reverse the judgment of the trial court and remand for further
proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
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