AGO 1993-077.

• Case Date: December 30, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-077. December 30, 1993OPINION NO. 1993-077David E. Aldstadt, Director Governor's Office of Veterans Affairs Office of the GovernorColumbus, Ohio 43266-0601 Dear Director Aldstadt: You have requested an opinion regarding the legal residence of incarcerated persons for the specific purposes of R.C. 5901.08. Pursuant to R.C. 5901.08, an applicant for assistance from a county veterans service commission must be "a bona fide resident of the state for at least one year and of the county for at least six months." You wish to know whether a person incarcerated in a particular county can count the time spent as a prisoner toward the six months in the county required by R.C. 5901.08 or whether for these purposes the incarcerated person retains the residence he or she had prior to incarceration.(fn1)

I. Bona Fide Resident Is Person Who Has Established a Domicile

Previous opinions of the Attorney General have held that a "bona fide resident" for purposes of R.C. 5901.08 is a person whose domicile is in the state and the county where the application is made. See 1974 Op. Att'y Gen. No. 74-093 (syllabus, paragraph one); 1957 Op. Att'y Gen. No. 707, p. 263. Domicile is established by actual presence in a place coupled with the intent to make that place home and to return there whenever absent. Sturgeon v. Korte, 34 Ohio St. 525, 534 (1878); Hager v. Hager, 79 Ohio App. 3d 239, 607 N.E.2d 63 (Greene County 1992). The determination of a person's domicile thus is often quite fact-specific, though generally adults are free to change their domicile at will. When an adult is physically or legally incapable of forming the required intent toward a place, however, the law will assign that person a domicile. Sturgeon, 34 Ohio St. at 535.

II. Domicile of Prisoners

A. Generally

There are two different approaches to determining the domicile of prisoners. The strict traditional rule is reflected in the Restatement (Second) of Conflict of Laws §17 (1971), which stated that "[a] person does not acquire a domicile of choice by his presence in a place under physical or legal compulsion." Pursuant to this rule, prisoners are legally incapable of choosing a new domicile and, therefore, retain their pre-incarceration domicile as a matter of law. Id., comment c. Any evidence of a prisoner's...