164 Ohio App. 3d 740 | Ohio Ct. App. | 2005
{¶ 1} In November 2004, the people of Ohio resoundingly approved the Ohio constitutional amendment known as Issue 1. Issue 1 amends the Ohio Constitution by defining marriage as follows:
{¶ 2} "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships *742
of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." Section
{¶ 3} Approximately three and one-half months after Issue 1 went into effect, the trial court analyzed Ohio's domestic-violence statute, R.C.
{¶ 4} The state asserts three assignments of error, yet the gravamen of the appeal is that the trial court erred in finding Ohio's domestic-violence statute unconstitutional. In particular, the state argues that the trial court failed to give constitutional deference to Ohio's domestic-violence statute, that the trial court misapplied Issue 1 to Ohio's domestic-violence statute, and that the trial court erred in finding that Ohio's domestic-violence statute recognizes for unmarried people a legal status that intends to approximate the design, quality, significance, or effect of marriage. We hold that Ohio's domestic-violence statute is neither incompatible with, nor unconstitutional in light of, Issue 1. For the following reasons, we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.
{¶ 6} "(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
{¶ 7} "* * *
{¶ 8} "(F) As used in this section and sections
{¶ 9} "(1) `Family or household member' means any of the following:
{¶ 10} "(a) Any of the following who is residing or has resided with the offender: *743
{¶ 11} "(i) A spouse, a person living as a spouse, or a former spouse of the offender;
{¶ 12} "(ii) A parent or a child of the offender, or another person related by consanguinity or affinity to the offender;
{¶ 13} "(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
{¶ 14} "(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
{¶ 15} "(2) `Person living as a spouse' means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question."
{¶ 17} The trial court was required to give a reasonable construction to Issue 1, the subsequent constitutional amendment, and Ohio's domestic-violence statute "so that both may stand."State ex rel. Smead v. Union Twp. (1858),
{¶ 19} Erroneously, the trial court concluded that Ohio's domestic-violence statute confers upon cohabiting, unmarried individuals that approximates "the design, qualities, significance or effect of marriage" simply because the phrase "family or household member" as defined in that statute includes "a person living as a spouse." Ohio's domestic-violence statute, however, does not guarantee the right to be free from family violence that stems only from the legal status of marriage, nor is domestic violence a crime that is born out of marriage alone.
{¶ 20} As explained by the Cleveland Municipal Court inCleveland v. Knipp (Mar. 10, 2005), Cuyahoga Cty. M.C. No. 2004 CRB 039103,
{¶ 21} Knipp further reasoned that the legislature "merely acknowledged the reality that, with or without official approval, human beings in Ohio, as elsewhere, *745 will come together in a variety of loving relationships that will sometimes turn violent. Ohio's domestic violence laws assure that all of its citizens who require the special protections that the circumstances of domestic violence create will have access to the resources of their government to enhance their safety. This assurance can be, and has been, made, even to unmarried couples, without the extension of the status or benefits of marriage."
{¶ 22} In fact, Ohio's domestic-violence statute broadly encompasses many individuals, including the parent or child of the offender or another person related by blood to the offender, and the parent or child of a spouse, a person living as a spouse, or another person related by blood or affinity to a spouse or person living as a spouse. R.C.
{¶ 23} As the Franklin County Court of Common Pleas stated in State v. Rodgers,
{¶ 24} "[W]hile `cohabitation' defines a relationship between people, that status is factual not legal. `Cohabitant' is therefore not a legal status, let alone a legal status that `intends to approximate the design, qualities, significance or effect of marriage' within the meaning of [Issue 1]."
{¶ 25} Knipp further explained:
{¶ 26} "These definitions are not terms of art. They are descriptions designed to assist fact-finders in discovering whether the unique circumstances surrounding individual relationships can be categorized in such a way as to establish the existence of domestic violence. The courts are of accord that there need not be an actual assertion of marriage, for instance, and that cohabitation can be based entirely on acts of living together without sexual relations." (Citations omitted.) Cuyahoga Cty. M.C. No. 2004 CRB 039103.
{¶ 27} In considering what constitutes cohabitation, the Ohio Supreme Court held in State v. Williams (1997),
{¶ 28} "[T]he essential elements of `cohabitation' are (1) sharing of familial or financial responsibilities and (2) consortium. * * * Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, *746 comfort, aid of each other, friendship, and conjugal relations. These factors are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the trier of fact."
{¶ 29} For instance, in Williams,
{¶ 30} For instance, even though Ohio law abolished common-law marriage on October 10, 1991, de facto evidence of common-law marriage does not preclude a domestic-violence charge should violence occur between the two individuals. See R.C.
{¶ 31} Thus, for the purposes of this appeal, the threshold determination of whether any individuals fall within the definition of "family or household member" is whether they reside with or have resided with the offender. R.C.
{¶ 32} We hold that Ohio's domestic-violence statute, insofar as it defines "family or household member" to include unmarried individuals who live as spouses, is constitutional and coexists in harmony with Issue 1. As a result, the trial court's decision granting in part Burk's motion to dismiss is reversed, Burk's original indictment for domestic violence is reinstated, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
*747BLACKMON, A.J., and CALABRESE, J., concur.