I respectfully dissent. There is no question that the conclusion reached by the trial court and by the majority opinion is reasonable — one might readily find that appellant did not live primarily with his parents.
However, that conclusion is not the only conclusion which might be reached from the evidence in this case. The Civil Rule 56(D) standard is that "* * * reasonable minds can come to but one conclusion * * *."
The circumstances of people's various living habits are as different as people themselves, and the inferences to be drawn from the facts of any particular set of circumstances is usually a question of fact. The majority opinion relies on the "under one roof" test as given in Patrick, supra, and Petrie,supra, but both those cases were determined not on summary judgment but only after a trial.
I do not believe the trial court erred in denying appellant's motion for summary judgment because there is a genuine issue of fact, but for the same reason, I would find the grant of summary judgment to appellee just as unwarranted.
Hence, I dissent.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, J.: Concurs in Judgment Opinion, Grey,* J.: Dissents with Opinion
For the Court
BY: _______________________ Peter B. Abele, Judge
* Lawrence Grey, retired, sitting by assignment of the Ohio Supreme Court in the Fourth District.