[Cite as Nixon v. Day, 2019-Ohio-3335.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



WILLIAM FREDERICK NIXON, et al.                 JUDGES:
                                                Hon. W. Scott Gwin, P. J.
        Plaintiffs-Appellees                    Hon. John W. Wise, J.
                                                Hon. Patricia A. Delaney, J.
-vs-
                                                Case No. 2018 AP 120041
TANNY DAY

        Defendant-Appellant                     OPINION




CHARACTER OF PROCEEDING:                     Civil Appeal from the Court of Common
                                             Pleas, Probate Division, Case No. 2018 DJ
                                             20545


JUDGMENT:                                    Reversed and Vacated



DATE OF JUDGMENT ENTRY:                      August 16, 2019



APPEARANCES:

For Substitute Appellees                     For Defendant-Appellant

COLIN G. SKINNER                             HARRY C. E. TOLHURST, III
DAY KETTERER, LTD.                           300 East Third Street
581 Boston Mills Road, Suite 400             Dover, Ohio 44622
Hudson, Ohio 44236
Tuscarawas County, Case No. 2018 AP 120041                                                2

Wise, J.

       {¶1}    Defendant-Appellant Tanny Day appeals from the decision of the

Tuscarawas County Court of Common Pleas, Probate Division, which granted a

declaratory judgment in favor of Donna Miller, guardian for William Frederick (“Fred”)

Nixon (now deceased).1 The relevant facts leading to this appeal are as follows.

       {¶2}    Appellant Tanny Day and the late William Frederick Nixon (hereinafter

“Fred”) met in early 2014. At that time, Fred’s first wife, with whom he had raised two

children, had recently passed away. Fred, born in 1941, was struggling with ordinary

household chores, and appellant moved in with him, agreeing to help with the necessary

work around the house in exchange for room and board. Over time, appellant also began

assisting Fred in taking his medications, arranging medical appointments, and other

needs. Tr. at 35. However, appellant has conceded that even though they lived together,

“it was not a love affair.” Tr. at 23. In 2016, Fred named appellant as the sole beneficiary

under his will. Tr. at 34.

       {¶3}    After having resided together under the aforesaid arrangement for several

years, Fred and Appellant Tanny went to the Tuscarawas County Probate Court on

August 7, 2018, to apply for an Ohio marriage license. According to the deputy clerk’s

subsequent testimony, Fred appeared confused, could not answer questions, and did not

give appropriate responses. Tr. at 105-106. Appellant and Fred did not bring along all

necessary documentation for the license, so they returned the next day, August 8, 2018.

The clerk of the Tuscarawas County Probate Court did not issue the marriage license that



1  On May 20, 2019, this Court, upon motion and the filing of a suggestion of death,
substituted as appellees Sunny Nixon (daughter and substitute guardian for Fred) and
Denis Traver (administrator of Fred’s estate).
Tuscarawas County, Case No. 2018 AP 120041                                                3


day, essentially taking the application under advisement. After they left, the clerk

expressed concerns about Nixon's competence to the probate magistrate and the court.

Tr. at 107.

       {¶4}     On August 10, 2018, appellant asked a friend, Vicki W., to transport her and

Fred to Steuben County, Indiana. According to Vicki, Fred again appeared confused. He

could not state the number of his prior marriages. Tr. at 83. Appellant Tanny repeatedly

went over such basic questions with Fred for “maybe 30 miles.” Id. Fred could not

remember his full address or his children's names. Tr. at 84. When appellant and Fred

met with the clerk at the Steuben County marriage license bureau, Vicki observed that

Fred incorrectly stated that he had been married four times previously, and that he did

not know his children’s names. Tr. at 87-88.

       {¶5}     Despite the foregoing, appellant and Fred were issued an Indiana marriage

license on August 10, 2018 in Steuben County, Indiana. A local minister thereupon

performed a wedding ceremony on the same day. Vicki, who described herself as “very

well-versed” regarding dementia and Alzheimer’s issues, did not believe that Fred was

competent to get married. Tr. at 89. She further thought Fred “had no clue” that he was

getting married. Tr. at 91. At the ceremony, Vicki overheard appellant “prompting” Fred.

Tr. at 90-91.

       {¶6}     Back in Ohio, the Tuscarawas County probate clerk formally denied the

issuance of a marriage license on August 15, 2018. The probate court further granted an

application for emergency guardianship, filed on behalf of Fred by Sunny Nixon, his adult

child, on August 15, 2018.
Tuscarawas County, Case No. 2018 AP 120041                                              4


       {¶7}   Appellant later attempted to obtain surviving spouse benefits from Fred’s

police and fire pension, but this was denied due to the existence of the emergency

guardianship. Tr. at 54.

       {¶8}   On August 20, 2018, a hearing was held on the issue of whether to extend

the guardianship. On August 22, 2018, Attorney Donna Miller was appointed as

emergency guardian for Fred, and her appointment as guardian was issued on

September 5, 2018. On that same day, Attorney Miller (as guardian for Fred), filed a

complaint for declaratory judgment, asking the Tuscarawas County Probate Court to

annul the Indiana marriage between Fred and Appellant Tanny.

       {¶9}   The Probate Court conducted a trial on the matter October 10, 2018. At the

trial, the probate court indicated that its decision would be based on Ohio law and not

whether the marriage was legal or valid under Indiana law. Tr. at 73. Appellant appeared

pro se, both giving testimony and cross-examining witnesses at the hearing. In addition,

Vicki W. took the stand as a witness, as well as Holly Buzzelli, a deputy clerk for the

Tuscarawas County Probate Court. The declaratory judgment matter was then taken

under advisement.

       {¶10} On October 29, 2018, Fred passed away.

       {¶11} On November 13, 2018, after Fred’s death, the probate court issued its

judgment annulling appellant’s and Fred’s Indiana marriage. In pertinent part, the probate

court ruled: “Having considered all evidence admitted into the Record and the sworn

testimony of all witnesses, the Court further finds that William Frederick Nixon was not

competent to enter into a marriage contract on August 10, 2018. This Court grants

Plaintiff’s ‘Complaint for Declaratory Judgment’ and hereby annuls the August 10, 2018
Tuscarawas County, Case No. 2018 AP 120041                                             5


Indiana marriage between William Frederick Nixon and Tanny Day.” Judgment Entry at

2.

      {¶12} On December 10, 2018, Appellant Tanny filed a notice of appeal. She

herein raises the following two Assignments of Error:

      {¶13} “I. THE PROBATE COURT DID NOT HAVE JURISDICTION TO ANNUL A

MARRIAGE.

      {¶14} “II.   THE PROBATE COURT DID NOT APPLY THE CORRECT LAW

WHEN DETERMING [SIC] WHETHER A MARRIAGE PERFORMED IN INDIANA

PURSUANT TO AN INDIANA MARRIAGE LICENSE WAS VALID, IN VIOLATION OF

THE ‘FULL FAITH AND CREDIT’ CLAUSE OF THE UNITED STATES CONSTITUTION.”

                                               I.

      {¶15} In her First Assignment of Error, Appellant Tanny contends the Tuscarawas

County Probate Court did not have jurisdiction to annul her marriage to Fred. We agree.

      {¶16} Ohio’s annulment statute, R.C. 3105.31, states in pertinent part:

             A marriage may be annulled for any of the following causes existing

      at the time of the marriage:

             ***

             (C) That either party has been adjudicated to be mentally

      incompetent, unless such party after being restored to competency

      cohabited with the other as husband or wife[.]

      {¶17} A probate court has jurisdiction to grant declaratory judgments under

2101.24(A)(1)(l). Furthermore, a probate court “has plenary power at law and in equity to
Tuscarawas County, Case No. 2018 AP 120041                                                6


dispose fully of any matter that is properly before the court, unless the power is expressly

otherwise limited or denied by a section of the Revised Code.” R.C. 2101.24(C).

       {¶18} In the case sub judice, we are faced with a relatively straightforward

question: Does a probate court have jurisdiction to grant an annulment within a

guardianship action, under the probate court’s statutory power to grant declaratory

judgments per R.C. 2101.24(A)(1) and/or its plenary powers under R.C. 2101.24(C)?

       {¶19} Generally speaking, “[a]n ‘annulment’ differs from a divorce in that a divorce

terminates a legal status, whereas an annulment establishes that a marital status never

existed.” Slusser v. Klosterman, 3rd Dist. Mercer No. 10-08-01, 2008-Ohio-2608, ¶ 10,

citing Black's Law Dictionary (6 Ed. Rev.1990) 91.

       {¶20} Prior to the American Revolution, “the [English] civil courts of common law

and equity possessed no marital jurisdiction; what we would now regard as jurisdiction

over separation and annulment was vested in the ecclesiastical courts, and jurisdiction to

grant divorce following a valid marriage resided in Parliament.” Matter of Harman, 168

N.H. 372, 374, 129 A.3d 311, 313 (2015) (additional citations omitted). However, “[i]n

America, there was no established state religion and, therefore, no ecclesiastical court.

The void was filled with the enactment of statutes to govern domestic relations matters

and the adoption of the rules of chancery for governance of these issues.” Miller v. Miller,

92 Ohio App.3d 340, 346–47, 635 N.E.2d 384, 388 (6th Dist.1993), citing Clark, The Law

of Domestic Relations in the United States (1987) 695, Green, Long & Muransk,

Dissolution of Marriage (1986) 12–14, and Walker, Ohio Divorce, Annulment and Child

Custody (1981) 14–17. Another commentary has stated: “If [Ohio’s Annulment Act is]

comprehensive, by implication the act displaces the courts' equity jurisdiction in
Tuscarawas County, Case No. 2018 AP 120041                                                7


annulment existing for over a century and a half prior to enactment of the act.” Sowald

and Morganstern. Exclusivity of Remedy, Baldwin's Oh. Prac. Dom. Rel. L. § 7:5 (4th

Ed.). In any event, Ohio does not recognize any form of common-law divorce, dissolution

or annulment. See Heyne v. Finser, 9th Dist. Summit No. 9161, 1979 WL 207641.

        {¶21} R.C. 3105.011(A), states that “[t]he court of common pleas including

divisions of courts of domestic relations, has full equitable powers and jurisdiction

appropriate to the determination of all domestic relations matters.” (Emphasis added). By

statute, Tuscarawas County has two common pleas judges, but is not allotted a domestic

relations division judge. See R.C. 2301.02, 2301.03.2 In such counties, domestic relations

cases are handled by the general division. See Kopp v. Begley, 2nd Dist. Miami No. 2004

CA 28, 2005-Ohio-1210, ¶ 14 (addressing Miami County’s judgeships). As this Court has

previously stated, “*** pursuant to R.C. 2301.02, the general division judge and the

domestic relations judge are one and the same.” Devault v. Devault, 5th Dist. Ashland

No. 03COA035, 2004-Ohio-976, ¶ 21 (addressing Ashland County’s judgeship).

        {¶22} Thus, it still must be decided whether jurisdiction for a ward’s annulment

action lies in a domestic relations action in the domestic relations court (or, in some Ohio

counties, the general division), in probate court as a declaratory judgment action, or in

both courts concurrently. It is often recognized that proceedings in probate court are

restricted to those actions permitted by statute and by the Constitution, since the probate

court is a court of limited jurisdiction. See Phillips v. Phillips, 5th Dist. Richland No.

12CA119, 2013-Ohio-3025, ¶ 13, quoting Corron v. Corron, 40 Ohio St.3d 75 (1989),

paragraph one of the syllabus. Furthermore, “[t]he purpose of guardianship hearings is to



2   Probate judge elections are addressed in R.C. 2101.02.
Tuscarawas County, Case No. 2018 AP 120041                                                   8

gather information in order to determine the best interests of the prospective ward.” In re

Guardianship of Stancin, 10th Dist. Franklin 02AP-637, 2003-Ohio-1106, ¶ 12, citing In re

Estate of Bednarczuk (1992), 80 Ohio App.3d 548, 551, 609 N.E.2d 1310; In re

Guardianship of Corless (1981), 2 Ohio App.3d 92, 95, 440 N.E.2d 1203. But at the same

time, “the purpose of a declaratory judgment action is to dispose of uncertain or disputed

obligations quickly and conclusively, and to achieve that end, the declaratory judgment

statutes are to be construed liberally.” Estate of Parkins v. Parkins, 3rd Dist. Allen No. 1-

18-50, 2019 WL 2171938, ¶ 10 (additional citations and internal quotations omitted).

       {¶23} Nonetheless, it is a well-established principle of statutory construction that

specific statutory provisions prevail over conflicting general statutes. Wehr v. Div. of Oil

& Gas Resources Mgt., 10th Dist. Franklin No. 17AP-855, 2018-Ohio-5247, ¶ 15, citing

State v. Chippendale, 52 Ohio St.3d 118, 120 (1990). Specifically, “*** declaratory

judgment statutes provide an additional remedy which may be granted by a court but they

do not extend the jurisdiction as to the subject matter upon which a court may act.” State

ex rel. Foreman v. Bellefontaine Mun. Court, 12 Ohio St.2d 26, 28, 231 N.E.2d 70, 71

(1967). Likewise, “*** where a special statutory procedure has been provided as an

exclusive remedy for the particular type of case in hand, such as income tax assessment,

tax abatement, workmen's compensation, unemployment compensation, annulment of a

bigamous marriage, that specific recourse must be followed.” Jones v. Jones, 115 Ohio

App. 358, 365, 180 N.E.2d 847, 851 (8th Dist.1962), citing Borchard, Declaratory

Judgments, Second Edition, at 342 (emphasis omitted).

       {¶24} Appellees’ responsive argument to the present assigned error is essentially

two-fold. They first present a jurisdictional priority theory, i.e., they support the propriety
Tuscarawas County, Case No. 2018 AP 120041                                                9

of a declaratory judgment by the probate court that the Indiana marriage is void ab initio

by pointing out that appellant and Fred already had a pending application for marriage in

Tuscarawas County at the time they applied for an Indiana marriage license. Accordingly,

appellees contend that the Indiana authorities thus had no legal right to grant a marriage

license in the first place. However, we find no merit in this responsive argument based on

the requirements of the Full Faith and Credit Clause, Article IV, Section 1, of the United

States Constitution.

       {¶25} Appellees secondly urge in response that R.C. 3105.011, supra, does not

explicitly divest the probate court of jurisdiction for domestic relations matters. However,

we reiterate that this case originated as a declaratory judgment action, not a formal

annulment complaint under R.C. 3105.31 brought by a guardian. In fact, the judgment

entry under appeal never once cites R.C. 3105.31.

       {¶26} By analogy, it has been recognized that if necessary, a guardian is entitled

to file a divorce action on a ward’s behalf. See Broach v. Broach, 2nd Dist. Montgomery

No. 22225, 177 Ohio App.3d 664, 2008-Ohio-4132, 895 N.E.2d 640, ¶ 12, citing Civ.R.

17(B) and 75(A). We find no reason why the same rule would not apply regarding an

annulment action. Construing the existing statutes and case law, we hold that any action

seeking annulment for a guardian’s ward must be brought as a statutory domestic

relations complaint under R.C. Chapter 3105 in the pertinent county’s common pleas

domestic relations division, or if none, the general division, and that a probate court’s

invocation of its general declaratory judgment powers does not supplant the General

Assembly’s intent to have such matters heard as domestic relations cases.

       {¶27} Appellant's First Assignment of Error is therefore sustained.
Tuscarawas County, Case No. 2018 AP 120041                                      10


                                            II.

      {¶28} Appellant's Second Assignment of Error is found to be moot based on our

aforesaid conclusions.

      {¶29} For the foregoing reasons, the judgment of the Court of Common Pleas,

Probate Division, Tuscarawas County, Ohio, is hereby reversed and vacated.


By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.



JWW/d 0725
Tuscarawas County, Case No. 2018 AP 120041   11
