I respectfully dissent from the majority opinion in this case. *Page 140
It is undisputed that the plaintiff and defendant are wife and husband, respectively, who lived in a single family residence at 16562 Boston Road, Strongsville, Ohio. Title to the property is in the name of plaintiff wife, who moved out of the subject premises in October, 1967. The defendant husband continued to live in the house after the plaintiff moved out and the parties have lived separately since that time. Plaintiff filed a forcible entry and detainer action against the defendant in the Berea Municipal Court on October 3, 1971, and has complied with all of the procedural requirements of R. C. Chapter 1923.
There is no divorce or alimony action pending between the parties.
The defendant raised two principal defenses, and neither is valid.
(1) The husband has the right to choose the marital home and the wife is under a duty to live with him, pursuant to R. C.3103.02.
(2) The Berea Municipal Court has no jurisdiction to hear the forcible entry and detainer action because R. C. 3103.04 states that neither the husband nor wife can be excluded from the other's dwelling except upon a decree or order of injunction made by a court of competent jurisdiction.
It is noted that the defendant did not make a claim or enter a defense that he has an equitable interest in the property or that the plaintiff is holding the property in trust for him. Consequently, how title to the property was acquired by the plaintiff is not an issue in this case and need not be discussed.
At the conclusion of all the evidence the trial court properly held that the only issue before the court was the right of possession, and judgment was entered for the plaintiff and a writ of restitution issued.
It is noted that a municipal court has jurisdiction in a forcible entry and detainer action, provided for in R. C. Chapter 1923 (R. C. 1901.18(A) and (H)), and the only issue to be determined is the right of possession. Haas v. Gerski (1963),175 Ohio St. 327; Kuhn v. Griffin (1964), 3 Ohio App. 2d 195. *Page 141
The issues raised in this appeal require an answer to the question as to whether a wife, who owns property and is separated from her husband and has not lived with him for a period of four years, can maintain a forcible entry and detainer action against her husband who continues to live in her house.
I believe that under the facts in this case the plaintiff can prevail in a forcible entry and detainer action. There is no body of law which would require an opposite conclusion. There is no valid legal reason why a wife who owns property should be discriminated against and treated differently from any other property owner because it is her husband whom she proposes to evict from the premises, when they are not living together as husband and wife.
It is maintained that there is a body of law that precludes the plaintiff from prevailing in this action. I disagree with this conclusion.
R. C. Chapter 3103 concerns itself with the relationships between a husband and wife. It provides in substance that the husband is the head of the family, that he must support himself, his wife and his minor children, that he may choose any reasonable place or mode of living, and the wife must conform thereto. R. C. 3103.02 and 3103.03.
There is no question that the husband has the right to select the domicile and it is the duty of the wife to follow him, and if she does not he may be relieved from supporting her. However, this does not require that her separate property must be used for the domicile of the family, especially if she refuses to live there. He must have a legal right to live in the place which he calls the marital home.
There is nothing in these sections that requires a wife to live with her husband if she chooses to separate from him and live elsewhere. Her refusal to live in a reasonable place that he may choose could deprive her of obtaining support from him, or be grounds for a divorce. R. C. 3105.01(B). But this does not take away any of her rights as a property owner. Morse v.Lewis (1921), 15 Ohio App. 108; Hardy v. Smith (1920), 13 Ohio App. 399; Slusser v. Slusser (1952), 68 Ohio Law. Abs. 7.
The defense that the plaintiff cannot maintain this *Page 142 action because a husband has the right to choose the marital home and the wife is under a duty to live with him, pursuant to R. C.3103.02, is not well taken.
We will now turn our attention to the second defense raised by the defendant, and that is whether R. C. 3103.04 would preclude the plaintiff from prevailing in this action.
Many years ago married women's acts were adopted by Ohio and other states, which gave married women the right to own property independent of their husbands. These laws changed the common law rule that a husband and wife were one, and gave the wife her independence. The aim of the married women's act is the emancipation of the wife from her common law subordination in order to create equality of the spouses. Damm v. Lodge (1952),158 Ohio St. 107.
Ohio law provides that a married person may take, hold and dispose of property, real or personal, the same as if unmarried, and neither husband nor wife has an interest in the property of the other (except as provided for in R. C. 3103.03, and except the right to dower, the right to remain in the mansion house after death of either). R. C. 3103.04 and 3103.07.
Further, neither can be excluded from the other's dwelling except upon a decree or order of injunction made by a court of competent jurisdiction. R. C. 3103.04. Defendant claims that the foregoing language in R. C. 3103.04 precludes the plaintiff from excluding the defendant from the premises without a decree or order of injunction made by a court of competent jurisdiction because it is the plaintiff's dwelling.
The proposition that a home once used as a "dwelling" by the owner is always the owner's "dwelling" is not valid. What is meant by a "dwelling" under R. C. 3103.04 must be determined under the facts and circumstances in each case. In the present case the plaintiff moved out of her dwelling in October, 1967, and had not lived there for four years before instituting the forcible entry and detainer action. Clearly, the subject premises is not her dwelling as provided for in R. C. 3103.04. Further, we are not dealing *Page 143 with a case wherein the owner-wife moved out of her dwelling one day and brought a forcible entry and detainer action the next day. Fraud was not perpetrated on the court by the plaintiff bringing this action.
R. C. 3103.04 is not applicable because under the facts in this case plaintiff is not attempting to exclude the defendant from her dwelling, because the subject premises are not the dwelling of the plaintiff. A dwelling is a place of habitation, abode, residence, domicile. It is a place where one lives. Black's Law Dictionary, Fourth Edition, 1951; Webster's New International Dictionary, Second Edition, 1942.
There is no law to compel a wife to live with her husband on her land or on his. There is no legal prohibition upon her separating from him and living apart, and having separated from him and having left her home in his possession, she is entitled to recover it from him as if he were a stranger. To hold otherwise would be to give the husband rights and estates in the wife's lands which our statutes not only do not provide for but expressly provide against. See Owens v. Owens (1959), 38 Del. Ch. 220, 149 A.2d 320; Hall v. Hall (1951), 193 Tenn. 74,241 S.W.2d 919; Cook v. Cook (1900), 125 Ala. 583, 27 So. 918;Buckingham v. Buckingham (1890), 81 Mich. 89, 45 N.W. 504.
If a forcible entry and detainer action were not available to the plaintiff in this case, she would be required to file a divorce or alimony action in the Common Pleas Court in order to obtain an order or decree of injunction to exclude the defendant from the subject premises.
There is no support in Ohio law for the proposition that a spouse who owns property cannot maintain a forcible entry and detainer action against the other spouse if such property had once been used as the dwelling of the spouse who owns the property, and that the owner-spouse is required to file a divorce action or alimony action in order to remove the other spouse from the owner-spouse's property. The effect of such a holding would divest Municipal Courts of jurisdiction in all forcible entry and detainer actions by an owner-spouse against the other spouse. The *Page 144 Ohio Legislature did not state that Common Pleas Court jurisdiction over domestic affairs deprives Municipal Courts of jurisdiction in forcible entry and detainer actions between spouses.
It is recognized that marital harmony shall be promoted and courts not used to facilitate a breakup of the family. However, denying the plaintiff her legal right to maintain a forcible entry and detainer action would not contribute to that philosophy.
The trial court properly granted judgment for the plaintiff and issued a writ of restitution. The judgment of the trial court should be affirmed.