Category Archives: Spousal Support

To Modify Spousal Support Change of Circumstances Defined

To Modify Spousal Support based upon receipt of inheritance.  Ex-Husband asked the Court to terminate or modify spousal support after wife received an inheritance. The Marion County Court of Common Pleas denied husband’s request to terminate because the Trial Court stated that the parties contemplated the inheritance at the time of the divorce and thus, it was not unforeseeable. The Court of Appeals affirmed the Trial Court’s decision and stated that, “A trial court will have jurisdiction to modify a prior order of spousal support only if the decree of the court expressly reserved jurisdiction to make the modification and if the court finds that a substantial change in circumstances has occurred and that the change had not been contemplated at the time of the original decree.

Inheritance and How It Can Modify Spousal Support

The court of Appeals opinion provided a very interesting and informative discussion addressing the is of an inheritance, and how that may effect spousal support a spousal support modification by referencing the ex-husband’s case cites in which Ohio courts have found that an inheritance constituted an unforeseen change of circumstances. See, e.g., Howell v. Howell, 167 Ohio App.3d 431, 2006-Ohio-3038, 855 N.E.2d 533. However, the Court of Appeals found that “the facts in Howell and the other case are very different from those in this case. For instance, in Howell, the appellant was only a contingent beneficiary of his grandfather’s trust fund at the time of the divorce. He had no rights to the trust fund until after the death of both his parents, and there was no information concerning the likelihood of their demise in the near future. We are cognizant of the fact that there certainly might be situations in which a party’s inheritance would constitute a substantial change of circumstances that was not contemplated at the time of the original decree. Every situation may have varying facts and circumstances that can affect the final determination. That is why the trial court is vested with the discretion to review and evaluate the individual merits of each case.”

To view the full case, January 10, 2011. Timberlake v. Timberlake. Marion County, Ohio. click .http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2011/2011-ohio-38.pdf.

Modify Spousal Support and Inheritance issue.

 

Cohabitation Results in Termination of Spousal Support

Termination of Spousal Support because of Ex-Wife’s Cohabitation.  August 22, 2011. Success on Appeal.

The Law Office of Anthony W. Greco successfully represented its Client in overturning a Fairfield County Trial Court’s ruling refusing to the termination of spousal support based upon Wife’s cohabitation. The ex-husband specifically challenged the Fairfield County Trial Court’s Order finding that Wife was not cohabiting with her boyfriend. The Court of Appeals referenced the Supreme Court of Ohio’s ruling which set forth two primary factors to consider in determining cohabitation: “Having considered the above definitions of ‘cohabitant’ and ‘family or household member,’ we conclude that the essential elements of ‘cohabitation’ are (1) sharing of familial or financial responsibilities and (2) consortium. R.C. 2919.25(E)(2) and related statutes. In addressing the termination of spousal support issue, the Court of Appeals stated that “Many factors may be considered in deciding whether cohabitation exists in a particular set of facts. We previously addressed the issue of “cohabitation” as an issue of lifestyle, not a housing arrangement. Further, when considering the evidence, the trial court should look to three principal factors. These factors are “(1) an actual living together; (2) of a sustained duration; and (3) with shared expenses with respect to financing and day-today incidental expenses.” The Court of Appeals, Fifth District, noted that both Ex-Wife and her boyfriend stated that boyfriend provided no support for Ex-Wife or her residence. Although boyfriend admitted to using appellee’s utilities and cable, he insisted that he did not pay for anything and was not an extra burden on the utilities. At one point, boyfriend took the absurd position that he did not even use toilet paper. Proof of shared expenses does not have to be by direct evidence alone, but can be established by circumstantial evidence.

The evidence for termination of spousal support

In this case, the direct evidence of the unexplained funds leads to the logical inference that Ex-Wife is receiving funds from her boyfriend. The Court went on to state, either we accept boyfriend’s position that he is a visitor at Ex-Wife’s residence, living off the income of a woman who makes substantially less than him, or we make the inference that these are two intelligent individuals who understand the cohabitation issue (boyfriend also pays spousal support) who are trying to delude the trial court. Either boyfriend is a “moocher” or he is paying his way. Both agree if they were married, the financial issues would be the same save health benefits. The Court of Appeals then concluded that the third factor in determining cohabitation, shared expenses with respect to financing and day-to-day incidental expenses, has been minimally satisfied and the trial court erred in not finding cohabitation. The Court of Appeals then Reversed Fairfield County Court’s ruling, terminated Husband’s spousal support, and Remanded the matter back to the trial court for a determination as to when cohabitation first started, so the termination of spousal support could be applied retroactively.

To see the full case, click the link http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2011/2011-ohio-4213.pdf.

Ex-husband Receives Retroactive Reimbursement for Spousal Support

Update (10/3/12): On remand, the trial court awarded ex-husband $90,360.00 in over payment of spousal support.  Child support that was to be paid by our Client via a previous order was ordered to be deducted and offset by the amount owed in reimbursement for spousal support until the parties’ minor child emancipated on November 10, 2014.  Upon the minor child’s emancipation, the Ex-Wife was ordered to pay our Client the full remainder of the $90, 360.00 still owed.

Termination of spousal support based upon cohabitation.