Yolanda Fernandez Botello v. Saul Mendez Gonzalez

Springfield, Ohio family law divorce lawyers represented the Plaintiff and Defendant.

{¶ 2} On February 3, 2023, Botello filed a complaint for divorce. According to her complaint, Botello married Defendant-Appellee Saul Mendez Gonzalez in Springhill, Ohio, on August 16, 2004. Botello and Gonzalez separated in September 2006 after one child was born as issue of their marriage. When the complaint was filed, Botello lived with this child in Medway, Ohio. She also alleged in her complaint that she had been a resident of Ohio for at least six months and of Clark County for at least 90 days immediately prior to the filing of the complaint.



{¶ 3} The paperwork Botello submitted with her complaint for divorce included copies of birth certificates for Botello's other two children, who were born in 2010 and 2013. These two children were unrelated to Gonzalez. Both birth certificates noted that Botello was born in Mexico but that she lived in New Carlisle, Ohio, at the time of the births. When she filed her complaint for divorce, Botello requested a Spanish interpreter for all scheduled hearings.



{¶ 4} Botello requested service by publication on her husband, which the trial court approved. Botello's husband did not file any responsive pleading in the time provided by the Rules of Civil Procedure. The matter was scheduled for a final uncontested hearing on October 26, 2023. Immediately prior to the hearing, the trial court met with Botello's counsel off the record "and inquired as to whether the Plaintiff is, in fact, a lawfully documented immigrant." Entry of Dismissal (Mar. 12, 2024), p. 2. According to the trial court, Botello's counsel answered in the affirmative but was unable to provide the court with the proper documentation at that time. Id. As a result, the trial court decided to continue the hearing until it had determined that it had proper jurisdiction to proceed with the case.



{¶ 5} On January 18, 2024, Botello's attorney contacted the administrator of the trial court to request a final hearing date. Id. As a result, a hearing date was scheduled for March 7, 2024. However, on January 22, 2024, the trial court issued an order finding that it was "appropriate to obligate Plaintiffs counsel" to provide the court with documentation showing that Botello was "a properly documented immigrant which would then make her eligible to be a bona fide resident of the state of Ohio for at least six months, as required by O.R.C. 3105.03." (Emphasis in original.) Entry (Jan. 22, 2024), p. 1 -2. The trial court concluded that "[f]ailure to provide such documentation may result in a dismissal of the within matter, for lack of jurisdiction." Id. at 2.



{¶ 6} On March 7, 2024, a final evidentiary hearing was held. The trial court summarized the procedural posture of the matter and then inquired whether Botello was prepared to submit documentation showing that she was lawfully in the United States. Botello's counsel responded that he did not believe the trial court had the legal authority to inquire into that subject and that his client was prepared to present evidence that she had been a resident of Ohio for at least six months immediately prior to filing her complaint for divorce. Counsel cited the Ohio Supreme Court's decision in Barth v. Barth, 2007-Ohio-973, for the proposition that the residency requirement in R.C. 3105.03 focused

solely on whether Botello could prove that she was a resident of Ohio for the six-month period immediately preceding the date on which she filed her complaint for divorce. The trial court disagreed with counsel's interpretation of Barth and refused to accept any evidence regarding whether Botello had resided in Ohio for the six months prior to the filing of the complaint. Rather, the trial court stated:



I'm going to dismiss the case and you can take this matter wherever you want to take it, and we'll get a legal interpretation of where we are because I would need that documentation pursuant to my order, because I don't believe I have jurisdiction to proceed in this case if your client is not in this country lawfully, and you're not prepared to provide me, you're not willing to provide me with that information that I have requested to determine if I have jurisdiction.



{¶ 7} On March 12, 2024, the trial court dismissed the case. The trial court explained that Botello's request for a Spanish interpreter along with the documents that showed she was born in Mexico in 1982 made it "logical and necessary for this Court to inquire as to [Botello's] immigrant status." Entry of Dismissal, p. 1. The court then stated that "an undocumented immigrant who is presently in this country without proper legal authority is unable to satisfy the six month Ohio residency requirement." Id. at 3. The trial court concluded that "the Plaintiff herein has failed to provide this Court with sufficient evidence to enable the Court to determine if it does, in fact, have jurisdiction to proceed in the within matter." Id. at 4. Botello filed a timely notice of appeal from the

trial court's dismissal of her divorce action.

{¶ 17} Having sustained both assignments of error, the judgment of the trial court will be reversed. The cause will be remanded for the trial court to proceed with the final evidentiary hearing on Botello's complaint for divorce.