[Cite as Caruso v. Caruso, 2013-Ohio-5650.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                  ASHTABULA COUNTY, OHIO


JOSEPH CARUSO,                                 :      OPINION

                 Plaintiff-Appellant,          :
                                                      CASE NO. 2013-A-0017
        - vs -                                 :

KRISTIN M. CARUSO,                             :

                 Defendant-Appellee.           :


Civil Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2012 DR 207.

Judgment: Affirmed.


Jane Timonere, Timonere Law Offices, L.L.C., 4 Lawyers Row, Jefferson, OH 44047-
1099 (For Plaintiff-Appellant).

Anna M. Parise, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville,
OH 44077 (For Defendant-Appellee).

Christopher M. Newcomb, The Iarocci Law Firm, L.L.C., 213 Washington Street,
Conneaut, OH 44030 (Guardian ad litem).



TIMOTHY P. CANNON, P.J.

        {¶1}     This matter is on appeal from an Ashtabula County Court of Common

Pleas judgment adopting a magistrate’s determination that the trial court lacked

jurisdiction to make an initial child custody determination in the divorce proceedings of

Joseph and Kristen Caruso. For the reasons that follow, the judgment of the trial court

is affirmed.
       {¶2}   Appellant, Joseph Caruso, and appellee, Kristen Caruso, were married on

May 6, 2006. At that time, the Carusos lived in Virginia. The Carusos have twin boys,

born October 9, 2006.     The couple experienced financial difficulties stemming from

appellee’s dismissal from her position as a college basketball coach. Thus, in October

2011, appellant moved to Ashtabula County, Ohio, to prepare an apartment for his

family on property owned by his mother.

       {¶3}   The Carusos subsequently began the process of moving their belongings

from Virginia to Ohio. Though the family planned to make a permanent move to Ohio,

appellee continued to live with the children in Virginia, where the children attended

preschool at Walnut Hills Baptist Church until November 22, 2011. On November 26,

2011, appellee and the children joined appellant in Ohio.

       {¶4}   The Caruso family lived together in Ohio until March 19, 2012, at which

time appellee and the children moved back to Virginia. The children were re-enrolled

and attended school in Virginia starting in March 2012. Appellee stated an intention to

stay in Virginia only temporarily; however, the Carusos’ relationship deteriorated, and on

May 15, 2012, appellant filed a complaint for divorce and a motion for temporary

custody in Ashtabula County, Ohio.      Appellee and the children continued to live in

Virginia.

       {¶5}   On June 7, 2012, appellee filed a motion to dismiss the complaint for lack

of jurisdiction and improper venue. A hearing was held on July 19, 2012. On July 20,

2012, the magistrate issued an order stating the court had jurisdiction based on a

finding that the Carusos’ minor children had become residents of Ohio in October 2011,

and were residents of Ohio on May 15, 2012, when appellant filed for divorce. Pursuant




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to appellee’s motion to set aside the magistrate’s order, additional hearings to

determine jurisdiction were conducted by the magistrate on August 22, 2012, and

August 29, 2012. On August 31, 2012, the magistrate determined that Ohio was not the

children’s “home state” as defined in R.C. 3127.01(B)(7).         Thus, pursuant to R.C.

3127.15(A), the magistrate found the Ashtabula County Court of Common Pleas did not

have jurisdiction over the initial custody determination.     The trial court adopted the

magistrate’s decision.

       {¶6}   Appellant timely appealed, asserting a single assignment of error:

       {¶7}   “The trial court trial court [sic] incorrectly determined that the children had

not lived in Ohio the requisite time to give the Ashtabula County Common Pleas Court

jurisdiction to make an intial [sic] custody determination under the UCCJEA.”

       {¶8}   The issue presented for our review is “[w]hether the Court’s determination

that the children did not become residents of the State of Ohio until November 26, 2011

and that they had not lived in the state for at least 6 consecutive months immediately

preceding the filing of the complaint is correct.”

       {¶9}   In his assignment of error, appellant contends that Ohio is the Caruso

children’s “home state” for purposes of an initial custody determination because the

children were domiciled in Ohio from October 2011, until at least March 2012.

       {¶10} Appellant notes that R.C. 3105.03 requires the complainant in a divorce

action filed in Ohio to have been an Ohio resident for at least six months prior to the

filing of the complaint. Furthermore, citing Slaughter v. Slaughter, appellant contends

this residency requirement “has been construed to mean a domiciliary residence, which

is a residence accompanied by an intention to make Ohio a permanent home.” 2009-




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Ohio-6110, 2009 Ohio App. LEXIS 5119, ¶19. This, however, is not the controlling

statute for purposes of determining jurisdiction in this case. In Slaughter, the court held

that Ohio courts lack jurisdiction under the Uniform Interstate Family Support Act

(“UIFSA”) to entertain a counter-claim for divorce against a non-Ohio resident plaintiff

because UIFSA limits jurisdiction to matters of paternity and support. Id. at ¶13-17.

That holding has no application to the question addressed by the magistrate.

       {¶11} For purposes of this case, the issue is resolved by interpretation and

application of R.C. Chapter 3127, wherein Ohio has adopted the Uniform Child Custody

Jurisdiction and Enforcement Act (“UCCJEA”). “Home state” is defined therein as “the

state in which a child lived with a parent or a person acting as a parent for at least six

consecutive months immediately preceding the commencement of child custody

proceedings.” R.C. 3127.01(B)(7) (emphasis added). The Ohio Supreme Court has

interpreted R.C. 3127.01(B)(7) to mean that “a child’s home state is where the child

lived for six consecutive months ending within the six months before the child custody

proceeding was commenced.” In re E.G., 2013-Ohio-495, 2013 Ohio App. LEXIS 428,

¶14.

       {¶12} The issue before the magistrate was whether the statutory time period

began to run for purposes of the “home state” definition in R.C. 3127.01(B)(7) at the

time the children became domiciled in Ohio or whether the term “lived in,” as used in the

statute, connotes something other than legal domicile.

       {¶13} Here, the relevant dates are not in dispute; it is only their legal significance

that must be determined.        Because resolution of this case is dependent upon

interpretation of a statute, it is a matter of law subject to de novo review. Stalloy Metals,




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Inc. v. Kennametal, Inc., 11th Dist. Geauga No. 2012-G-3045, 2012-Ohio-5597, ¶ 37.

Furthermore, matters of jurisdiction are reviewed de novo.        In re K.R.J., 12th Dist.

Clermont No. CA2010-01-012, 2010-Ohio-3953, ¶16.

       {¶14} R.C. 3127.15 grants Ohio courts the jurisdiction to make initial custody

determinations for children whose “home state” is Ohio. Furthermore, R.C. 3127.15(A)

“is the exclusive jurisdictional basis for making a child custody determination by a court

of this state.” R.C. 3127.15(B).

       {¶15} Contrary to appellant’s assertion, the statute does not use the word

residence or domicile. Instead, R.C. 3127.01(B)(7) requires the courts to determine the

state in which the child “lived.” “Home state” and “domicile” are distinct concepts. A

person is domiciled in Ohio when he or she establishes an actual residence in Ohio and

intends to make Ohio his or her permanent home. Snelling v. Gardner, 69 Ohio App.3d

196, 201 (10th Dist.1990). However, assuming a child has lived in another state for six

months prior to moving to Ohio, Ohio does not become a child’s “home state” unless the

child has lived in Ohio for six months. R.C. 3127.01(B)(7). The term “home state” thus

connotes a place in which the child has actually lived for at least six months, rather than

a place of legal residence or domicile. For example, when a child moves from one state

to another, his or her legal domicile may change immediately, but the new state does

not immediately become the “home state.” Similarly, the requirement that the child must

live in Ohio for six months before an Ohio court acquires jurisdiction does not mean the

child must be domiciled in Ohio for six months.         It simply means the child must

physically live in Ohio for six months.




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       {¶16} Appellant cites In re Taylor, 5th Dist. Tuscarawas No. 2005-AP-11-0081,

2006-Ohio-6025, ¶41, for the proposition that a child’s domicile is determined by that of

his or her parents. Appellant believes the Caruso family became domiciled in Ohio

when he moved in early October 2011. The holding in In re Taylor, however, addresses

the issue of where a child is domiciled, not where the child lives. As a result, it has no

application to this case.    Furthermore, the analysis in that case does not support

appellant’s position.

       {¶17} In In re Taylor, the court explained that one can reside in a different

location from one’s domicile.      Id. at ¶40, citing Miss. Band of Choctaw Indians v.

Holyfield, 490 U.S. 30, 48 (1989) (noting that a child’s domicile may be a place the child

has never been). Thus, if, as appellant argues, a child’s domicile is the same as his or

her parents’ and a child’s “home state” is the same as his or her domicile, then a child

need not live in his or her “home state” at all.

       {¶18} Though the Carusos had begun the process of moving their family to Ohio

in October 2011, the children remained in Virginia where their mother had a home and

where they attended preschool and participated in extracurricular activities. It was not

until November 26, 2011, that the children physically moved from Virginia to Ohio. Thus

the six-month period referred to in R.C. 3127.01(B)(1) did not begin to run until

November 26, 2011. Ohio, therefore, could not have become the children’s “home

state” for the purposes of an initial custody determination until May 26, 2012, assuming

the children continued to live in Ohio with at least one of their parents. Under the

UCCJEA, Virginia remained the children’s “home state,” because it is undisputed that

they lived there for at least six months prior to their move to Ohio. The children moved




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back to Virginia on March 19, 2012, after living in Ohio for four months. Even if the time

the children spent in Virginia from March 20, 2012, to May 15, 2012, could have been

considered a temporary absence, and therefore count as part of the six-month period

pursuant to R.C. 3127.01(B)(7), Ohio still could not have become the children’s “home

state” until May 26, 2012. Thus, at the time appellant filed his divorce action and motion

for temporary custody, on May 15, 2012, the Ashtabula County Court of Common Pleas

was without jurisdiction to make an initial custody decision.

       {¶19} Appellant’s assignment of error is without merit. The judgment of the trial

court is hereby affirmed.



CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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