Warren v. Rebhan

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Warren v. Rebhan

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-6340

Case Date: 12/12/2011

Plaintiff: Warren

Defendant: Rebhan

Preview:[Cite as Warren v. Rebhan, 2011-Ohio-6340.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
CITY OF WARREN, OHIO,                                                                   :                                                          O P I N I O N
Plaintiff-Appellant,                                                                    :
                                                                                                                                                   CASE NO. 2011-T-0011
- vs -                                                                                  :
ERIC J. REBHAN, CO-EXECUTOR OF                                                          :
THE ESTATE OF JOHN C. REBHAN,
DECEASED, et al.,                                                                       :
Defendants-Appellees.                                                                   :
Civil Appeal from the Court of Common Pleas, Probate Division, Case No. 2010 CVA
0016.
Judgment: Affirmed.
Gregory V. Hicks, Warren City Law Director, and James E. Sanders and David D.
Daugherty,  Assistant  Warren  City  Law  Directors,                                    391  Mahoning  Avenue,  N.W.,
Warren, OH   44483 (For Plaintiff-Appellant).
Stuart A. Strasfeld, Roth, Blair, Roberts, Strasfeld & Lodge, 100 Federal Plaza East,
#600, Youngstown, OH                                                                    44503-1893 (For Defendants-Appellees, Eric J. Rebhan and
Regina Rebhan).
Matthew G. Vansuch, Harrington, Hoppe & Mitchell, LTD,  108 Main Avenue, S.W.,
#500, P.O. Box 1510, Warren, OH                                                         44482-1510 (For Defendants-Appellees, Vienna
Township and Vienna Township Trustees Jeffrey E. Dreves, Heidi Brown, and Richard
Dascenzo, Jr.)
Mike DeWine, Ohio Attorney General, and Daniel Warner Fausey, Assistant Attorney
General,  30 East Broad Street,  25th Floor, Columbus, OH                               43215  (For Defendant-
Appellee, Joseph W. Testa as Tax Commissioner, Ohio Department of Taxation.)

CYNTHIA WESTCOTT RICE, J.
{¶1}   Appellant, the city of Warren, Ohio (“Warren”), appeals from the judgment
of the Trumbull County Court of Common Pleas, Probate Division, declaring Vienna
Township, Ohio, the domicile of the decedent, John C. Rebhan, for purposes of estate
taxation on intangible personal property pursuant to R.C. 5731.51.   We affirm the trial
court’s judgment.
{¶2}   The decedent passed away on December 30, 2008.   At the time of his
death, the decedent owned four residences: a vacation home in Ft. Lauderdale, Florida;
a vacation home on Lake Erie in Sandusky, Ohio; and two elaborate mansions in
Trumbull County, Ohio—one in the city of Warren and the other in Vienna Township.
{¶3}   The decedent’s estate was administered by the Trumbull County Probate
Court in a separate case.   On behalf of the estate, the decedent’s co-executors, his
children Eric and Regina Rebhan, submitted payment on the estimated Ohio estate
taxes and filed a tax return identifying the situs of their father’s domicile as Vienna
Township.   Estate taxes on real property and tangible personal property are distributed
to the political subdivision where the property is located at the time of a decedent’s
death.   See R.C. 5731.50.   Alternatively, the taxes on a decedent’s intangible personal
property are distributed to the political subdivision where the decedent was domiciled at
the time of death.   R.C. 5731.51.
{¶4}   While the Tax Commissioner of the state of Ohio was considering the
correctness of the tax return, Warren filed a declaratory judgment action against Vienna
Township, the members of its Board of Trustees, the co-executors of decedent’s estate,
Trumbull  County  Auditor  Adrian  Biviano,  and  the  Tax  Commissioner                    (collectively,
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“appellees”), effectively contesting the domicile of the decedent.   The complaint sought
a declaration that the decedent was domiciled in the city of Warren pursuant to his
residence at 3625 E. Market Street, Warren, Ohio 44484.   Appellees filed answers to
the complaint, and the trial court set the matter for hearing.
{¶5}   At  the  evidentiary  hearing,  the  only  issue  before  the  trial  court  was
whether, at the time of his death, the decedent was a domiciliary of the city of Warren
pursuant to his residence at 3625 E. Market Street, Warren, Ohio (“Warren property”),
or  a  domiciliary  of  Vienna  Township  pursuant  to  his  residence  at  5000  Creekside
Boulevard, Vienna, Ohio (“Vienna property”).   The following represents a summary of
the facts adduced at the hearing:
{¶6}   The decedent acquired 3625 E. Market Street, Warren, Ohio 44484 in the
summer of 1976.   At the time of the decedent’s death, he received his personal mail at
the Warren property.   Further, the Trumbull County Auditor’s records listed the Warren
property as receiving the 2.5 percent tax reduction via the Homestead Exemption.   And
Ohio Department of Motor Vehicle records from 2000 through 2008 show various motor
vehicle  registrations  identifying  the  decedent’s  mailing  address  as                    3625  E.  Market
Street, Warren, Ohio 44484.   The decedent’s 2005 Chevrolet title, issued September
22, 2008, listed the decedent’s address as 3625 E. Market Street, Warren, Ohio 44484.
And the decedent’s will, executed on September 2, 2004, stated the decedent’s address
was 3625 E. Market Street, Warren, Ohio 44484.
{¶7}   Notwithstanding  these  uncontested  points,  the  evidence  revealed  the
decedent had not lived in the Warren property for some time and, in recent years, had
been using the residence exclusively as an office and a storage facility for his valuable
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antique  collection.    It  was  also  uncontroverted  that  the  residence  on  the  Warren
property required some maintenance and many of its outdoor fixtures, including its pool,
were dilapidated and no longer operational.
{¶8}   With  respect  to  the  Vienna  property,  evidence  showed  the  decedent
acquired the home at  5000 Creekside, Vienna, Ohio  44473 in October  1996.    The
decedent’s Florida death certificate reported the Vienna property was the decedent’s
residence at the time of his death.    Moreover, the decedent’s individual income tax
returns from the years 2002 through 2008 listed the decedent’s home address as 5000
Creekside, Vienna, Ohio 44473.   Similarly, the decedent’s W-2 wage and tax statement
for the same years show the decedent as an employee of Warren Fabricating Corp.,
whose address was 5000 Creekside, Vienna, Ohio 44473.   And the decedent’s Bank
One checking account listed 5000 Creekside, Vienna, Ohio 44473 as the decedent’s
address.
{¶9}   The  testimony  of  the  decedent’s  children,  ex-wife,  close  friends,  and
business associates demonstrated that the decedent had lived at the Vienna property
from approximately  2000 or  2001 until the date  of  his death.    The  uncontroverted
evidence also showed that, for at least five years before the decedent’s death, family
and  holiday  gatherings  were  held  at  the  Vienna  property.    Alternatively,  no  such
gatherings had been held at the Warren property since  1995, the date of Regina’s
wedding.    Moreover, the evidence revealed that, prior to the decedent’s death, the
Vienna property was the residence at which the decedent ate, “unwound,” slept, and
ultimately, was the place he could be found, if needed.   In light of these points, the
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decedent’s  children,  ex-wife,  friends,  and  close  business  associates  testified  the
decedent, as far as they were aware, “lived” at the residence on the Vienna property.
{¶10}  Based upon the foregoing evidence, the trial court concluded that, as early
as 2002, the decedent intentionally changed his domicile from the Warren property to
the Vienna property and accompanied such intention with acts indicating a selection of
a new domicile.   The court stated:
{¶11}                                                                                            “Over the years from 1996 through 2002, [the decedent] made the ‘Warren
Property’ less habitable as a home and the ‘Vienna Property’ more habitable as a home.
His  intent  to  make  a  house  a  home  is  evidenced  by his  utilization  of  the  ‘Vienna
property’ and in contrast to convert the ‘Warren Property’ from a domicile/residence to
an office and sanctuary for his valuable antique collections.
{¶12}                                                                                            “***
{¶13}                                                                                            “Therefore, this Court finds by the preponderance of the evidence that [the
decedent]  abandoned his  domicile  at the  ‘Warren Property’ sometime  in  2002 and
acquired a new domicile in the ‘Vienna Property’ at that time, and continued to maintain
the ‘Vienna Property’ as his domicile up until his death.”
{¶14}  From the foregoing final judgment, Warren filed a notice of appeal and
now assigns two errors for our review.   Its first assignment of error provides:
{¶15}                                                                                            “[The] Trial Court erred to the prejudice of the Appellant by imposing the
burden of proof of change of domicile on the Appellant.”
{¶16}  Under this assignment of error, Warren asserts that because the decedent
was domiciled in the city of Warren upon his purchase of the Warren property in 1976,
the burden of proving a change in domicile was on the responding parties.   We agree
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with Warren’s construction of the law; however, there is nothing in the record that would
indicate the trial court placed the burden upon Warren to establish a change in domicile.
{¶17}  The  trial court, in  its judgment entry,  stated:  “[t]he burden  of proof  of
domicile rests upon the party whose right to affirmative relief depends upon establishing
his domicile or the domicile of another in a given place.   In this case, that is the City.”
This statement is consistent with the law of domicile.    The law in this area is well-
established: “‘a person is presumed to continue his old domicile until it is clearly shown
that he has acquired a new one.’”   Springfield v. Betts (1996), 114 Ohio App.3d 70, 73,
quoting 36 Ohio Jurisprudence 3d (1982), Domicile, Section 19.   In this case, evidence
was presented to demonstrate that the decedent purchased the Warren property in
1976 and established his domicile at that property.   This evidence was sufficient for
Warren to meet its initial burden of proof.   E. Cleveland v. Landingham (1994), 97 Ohio
App.3d 385, 391.   The trial court acknowledged this point where, in its judgment entry, it
found: “*** the collective testimony of the witnesses demonstrated that [the decedent’s]
original domicile and residence was the ‘Warren Property’ that he acquired in 1976.”
{¶18}  Once Warren established the decedent’s domicile in the city of Warren,
the burden then shifted to Appellee-Vienna  “only because a person is presumed to
continue in his own domicile until clearly shown that he has acquired a new one.”   Id.
Accord Holtz v. Holtz, 2d Dist. No. 2005-CA-43, 2006-Ohio-1812, at ¶19; Betts, supra.
{¶19}  Here, Warren met this prima facie burden of demonstrating the decedent
was a domiciliary of the city of Warren; by necessary implication, the burden of proof
then shifted to the responding parties to demonstrate the decedent acquired a new
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domicile in Vienna Township.1   Simply because the trial court did not expressly state
that the burden of establishing a domiciliary change shifted to the responding parties,
does not imply the court erred in drawing its legal conclusion.   Rather, the trial court, in
entering  judgment  against  Warren,  determined  the  responding  parties  met  their
reciprocal burden of proof and established, by a preponderance of the evidence, that
the decedent changed his domicile from the Warren property to the Vienna property.2
There is nothing in the record to indicate the trial court required Warren to establish a
change in the decedent’s domicile.   We therefore discern no problem in the manner the
trial court allocated the relative burdens of proof or the way in which it analyzed the
case.
{¶20}  Warren’s first assignment of error is without merit.
{¶21}  For its second assignment of error, Warren alleges:
{¶22}                                                                                                                 “The trial court’s decision is against the manifest weight of the evidence.”
{¶23}  The  underlying  action  sought  a  declaration  that  the  decedent  was  a
domiciliary of the city of Warren.                                                                                    “The granting or denying of declaratory relief is a
matter for judicial discretion, and where a court determines that a controversy is so
1.    Appellee-Vienna  asserts  that  Warren  still  bore  the  burden  of  establishing  a  change  in  domicile
because the estate tax return identified the Vienna property as the decedent’s domicile.   Even though the
co-executors listed the Vienna property as the decedent’s domicile at the time of his death, this was
merely a legal conclusion that was uncontested until Warren filed the underlying declaratory judgment
action.   The validity of the co-executors’ blank declaration on the estate tax return was the basic subject
of  Warren’s  complaint.    In  essence,  Warren  asserted,  for  purposes  of  claiming  estate  taxes  on  the
decedent’s  intangible  property, that  despite  the  co-executors’ statement on the estate tax  return, the
Warren property, as the decedent’s original domicile, had never changed.   We therefore disagree with
Appellee-Vienna’s  position  that  the  co-executors’  conclusory  statement  on  the  estate  tax  return  was
sufficient to require Warren to prove that the decedent changed his domicile from Vienna Township to the
city of Warren.
2.   We recognize that Warren commingles procedural and substantive issues under the argument portion
of  its  first  assignment  of  error.    Because,  however,  Warren’s  first  assignment  of  error  specifically
challenges  only  a  procedural  error,  we  will  address  the  entirety  of  its  substantive  arguments  in  our
analysis  of  Warren’s  second  assignment  of  error,  which  challenges  the  evidential  weight  of  the  trial
court’s decision.
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contingent that declaratory relief does not lie, this court will not reverse unless the lower
court’s determination is clearly unreasonable.”   Bilyeu v. Motorists Mut. Ins. Co. (1973),
36 Ohio St.2d 35, syllabus; reaffirmed by Mid-Am. Fire & Cas. Co. v. Heasley, 113 Ohio
St.3d                                                                                               133,                                  2007-Ohio-1248,  at   ¶14.    In  ruling  that  the  Vienna  property  was  the
decedent’s domicile at his death, the trial court denied Warren the relief it sought.   At
issue,  therefore,  is  whether  the  trial  court’s  ruling  was  reasonable  in  light  of  the
evidence presented at the evidentiary hearing.
{¶24}  It is a fundamental principle of law that a person must have a domicile.
Senn v. Cleveland, 8th Dist. No. 84598, 2005-Ohio-765, at ¶38.   That domicile, in the
words of  Justice Holmes, is a person’s  “pre-eminent headquarters.”    Williamson v.
Osenton  (1914),  232 U.S.  619,  625.    This court has similarly observed that  “‘[t]he
domicile of a person is the place where he has his true, fixed, permanent home and
principal establishment.   It is the place to which he intends to return whenever he is
absent, and from which he has no present intent to move.’”   In re Estate of Mallory, 11th
Dist. No.  2005-T-0028,  2006-Ohio-1265, at  ¶16, quoting  36 Ohio Jurisprudence  3d
(1982), Domicile, Section 2.   It therefore follows that, while a person may have multiple
residences, he may have only one domicile at any one time.   See, e.g., State ex rel.
Klink v. Eyrich (1952), 157 Ohio St. 338, 343.
{¶25}  A  person’s  domicile  will  persist  and  remain  the  same  until he  or  she
acquires a new one.   Landingham, supra, at 390.                                                    “A person abandons his old domicile
and acquires a new one only when he chooses a new domicile, establishes an actual
residence in the chosen domicile, and demonstrates a clear intent that the new domicile
become his primary and permanent residence.”   Holtz, supra, at ¶18.   The acquisition of
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a new domicile requires two elements: the factum, or residence, and the animus, or an
intention to remain.   Landingham, supra, citing Anderson v. May (1951), 91 Ohio App.
557, reversed on separate grounds.   The Supreme Court of Ohio, quoting an eloquent
judgment  entry  from  the  Clermont  County  Probate  Court,  has  consequently
emphasized:
{¶26}                                                                                       “‘When a person’s legal residence is once fixed *** 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.’”   In re Estate of Hutson (1956),
165 Ohio St. 115, 119.
{¶27}  Pursuant to Hutson, therefore, the abandonment of a former domicile and
the acquisition of a new one happens only by the concurrence of both the fact of a new
residence and the intent to remain in that residence.
{¶28}  Under its second assignment of error, Warren asserts the trial court’s
ruling was unreasonable because the decedent did not intend to legally abandon his
original domicile at the Warren property.   We do not agree.
{¶29}  Initially,  Warren  conflates  the  abandonment  of  property  with  the
abandonment  of  one’s  domicile.    Warren  is  correct  that                              “abandoned  property”  is
9

“property over which the owner has relinquished all right, title, claim, and possession
with  the  intention  of  not  reclaiming  it  or  resuming  its  ownership,  possession  or
enjoyment.”   Doughman v. Long (1987), 42 Ohio App.3d 17, 21.   At issue in this case,
however, is not whether the decedent abandoned the Warren property.   Clearly, he did
not.    The relevant inquiry, rather, is whether the decedent intended to abandon his
domicile in the city of Warren in favor of acquiring a new domicile in Vienna Township.
{¶30}  As  discussed  above,  abandonment  of  one’s  domicile  requires  the
selection of a new actual domicile coupled with an intention for the new residence to be
one’s principal and permanent home.   See Landingham, supra, at 390.   Here, the trial
court found that the decedent abandoned his domicile at the Warren property in favor of
the Vienna property based upon the evidence of the decedent’s intention that could be
gleaned from his actions and the testimony of those closest to him.   Warren contends,
however, the trial court erred in drawing this conclusion.   In Warren’s view, the decedent
never abandoned the property because he visited it regularly and maintained it as his
“bachelor pad.”
{¶31}  We must initially emphasize that there was absolutely no testimony or
evidence to indicate the decedent treated the Warren property as a  “bachelor pad.”
While it was uncontroverted that the decedent frequently, if not daily, visited the Warren
property, the entirety of the evidence on this issue revealed that the nature of the
decedent’s activities at the Warren property related to his antique collecting business.
{¶32}  The  testimony was  clear that  the  interior of  the Warren  property  was
completely full of expensive and rare antiques.   Multiple witnesses, including Eric and
Regina,  the  decedent’s  ex-wife  Susan  Rebhan,  the  decedent’s  close  friend  John
10

Senoyuit, and his primary carpenter at the Vienna property, Brian Crain, stated the
Warren property was difficult to even walk through because of the volume of antiques
stored in every room of the house.   In particular, Eric and Regina testified the kitchen,
hallways, bedrooms, and even the basement were scattered, albeit systematically, with
the decedent’s vast collection.   According to Eric, Regina, and Susan, one could not
effectively walk through or even sit in a chair, let alone cook, sleep, or eat at the Warren
property.   Thus, the overwhelming weight of the evidence demonstrated that the Warren
property, while utilized and visited by the decedent on a near daily basis, was not his
principal  residence,  but  was  used  for  the  sole  purpose  of  his  antique  collecting
avocation.
{¶33}  Despite these points, Warren argues that the evidence demonstrated that
the decedent’s (1) receipt of his mail at the Warren property and (2) listing of the Warren
property as his address on various legal certifications and registrations render the trial
court’s decision unreasonable.  We do not agree.
{¶34}  Eric and Regina testified the decedent received his mail at the Warren
property for both personal and business reasons.   Each testified their father was an
intensely private individual and, as a result, preferred that strangers not know that he
actually  lived  in  Vienna  Township.    By  listing  the  Warren  property  as  his  mailing
address, he could avoid potentially bothersome attention he might otherwise receive by
having all of his mail delivered to the Vienna property.   Furthermore, Eric and Regina
also indicated that the decedent kept an office at the Warren property that he regularly
visited at the end of each work day.   By retaining the Warren property as his mailing
address, the decedent could attend to his mail at an office rather than having it clutter
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his home.   The decedent’s decision to receive mail at the Warren property, in light of the
foregoing evidence, is not inconsistent with the trial court’s determination.
{¶35}  Moreover,  even  though  the  decedent’s  driver’s  license,  various  motor
vehicle registrations, and his will included the city of Warren address, these documents
simply indicate that the Warren property was a residence of the decedent.   And, using
the city of Warren address would be consistent with Eric’s and Regina’s testimony that,
as much as possible, the decedent valued his personal privacy.   Regardless, appellees
submitted various exhibits demonstrating the decedent utilized the Vienna property’s
address on separate official documents, e.g., the decedent’s tax returns from  2002-
2008, the decedent’s W-2s from 2002-2008, the decedent’s death certificate, and the
decedent’s bank account.   In any event, the issue of domicile is not a “battle of forms.”
While the legal documents admitted into evidence are relevant to the inquiry, they
cannot be considered dispositive of whether the decedent had an intention to acquire a
new domicile.
{¶36}  With this in mind, we acknowledge that it is difficult to ascertain what a
person’s intentions are at any given time; this is particularly so when the individual in
question is not available to provide some insight into his or her thoughts and desires.   In
a case such as this, a court must therefore draw its conclusions from the facts and
circumstances surrounding the case as developed by testimony and other evidence.
{¶37}  With  respect  to  the  decedent’s  intent  to  change  his  domicile,  it  is
uncontested that the Vienna property was habitable around 2000 or 2001.   Eric testified
the decedent actually moved into the Vienna property in 2000, after his bedroom was
furnished.   After this date, the decedent continued to make improvements on the Vienna
12

property, pouring significant time and resources into the home.   While doing so, the
evidence  revealed  the  decedent  allowed  the  Warren  property  to  fall  into  relative
disrepair and turned it into a warehouse for his expansive collection of antiques.
{¶38}  The evidence demonstrated that the decedent’s grandchildren only visited
him at the Vienna property.   The evidence further demonstrated that the decedent ate,
slept,  and  held  family  functions  and  holiday  gatherings  at  the  Vienna  property.
Alternatively, there was no indication that the decedent met socially with friends or
family at the Warren property; to the contrary, Eric, Regina, and Susan all testified the
last social gathering held at the Warren property was in 1995 for Regina’s wedding.
{¶39}  The decedent’s family and friends testified that when they wished to reach
him, they would first try his cell phone, then try the Vienna property.   When Regina
prepared food for the decedent, she brought it to him at the Vienna property.   When he
went to dinner or functions with his friends, they would pick him up at the Vienna
property.    Finally,  the  decedent’s  family  and  friends  unanimously  testified  that  the
decedent lived at the Vienna property and, in their view, it was his true home.   Given the
evidence,  the  only  reasonable  conclusion  was  that  the  Vienna  property  was  the
decedent’s “preeminent headquarters” at which he made his home.
{¶40}  While Warren offered sufficient evidence to establish the Warren property
was the decedent’s first domicile, the evidence was uncontroverted that the decedent,
between  2000  and  2002,  selected  a  new  domicile  at  5000  Creekside  Boulevard,
Vienna, Ohio  44473.   And this selection was accompanied by a bona fide intention,
evidenced  by  the  decedent’s  actions,  that  the  Vienna  property  became  his  new
13

domicile.   We therefore hold the trial court’s judgment declaring the Vienna property the
decedent’s domicile was a sound and reasonable exercise of its discretion.
{¶41}  Warren’s second assignment of error is without merit.
{¶42}  For the reasons discussed in this opinion, the judgment of the Trumbull
County Court of Common Pleas, Probate Division, is hereby affirmed.
TIMOTHY P. CANNON, P.J.,
MARY JANE TRAPP, J.,
concur.
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