The Law Office of Anthony W. Greco successfully represented our Client in overturning a Trial Court’s ruling refusing to the termination of spousal support based upon Wife’s cohabitation. Our Client challenged the Trial Court’s Order finding that Wife was not cohabiting with Boyfriend. The Court of Appeals referenced the Supreme Court of Ohio’s ruling which set forth two factors in determining cohabitation: (1) Sharing of familial or financial responsibilities and (2) Consortium. In addressing the termination of spousal support issue, the Court of Appeals ruled there are three factors to consider: (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 Ex-Wife and Boyfriend both stated that he provided no support for Ex-Wife or her residence. Although he admitted to using Ex-Wife’s utilities and cable, Boyfriend insisted that he did not pay for anything and did not increase the utility bill. At one point, Boyfriend claimed that he did not even use Ex-Wife’s 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
In this case, the direct evidence of the unexplained funds in Ex-Wife’s account leads to the logical inference that Ex-Wife is receiving funds from Boyfriend. The Court went on to state that they must accept one of two positions. Option one, that Boyfriend is merely a visitor at Ex-Wife’s home, living off Ex-Wife, who makes substantially less than him. Option two, that Ex-Wife and Boyfriend are two intelligent individuals who understand cohabitation, but are trying to delude the court. Either Boyfriend is a “moocher” or he is paying his way. However, both Ex-Wife and Boyfriend agree if that they were married, their financial situations would not change except for healthcare.
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. They reversed the Trial Court’s ruling, resulting in the termination of Husband’s spousal support. The Court then returned the case back to the Trial Court for a determination as to when cohabitation first started, so the termination of spousal support could be applied retroactively.
Husband Receives Retroactive Reimbursement for Spousal Support
Update (10/3/12): On remand, the trial court awarded Father $90,360.00 in overpayment of spousal support. Child support that was to be paid by our Client under a previous order was ordered to be subtracted by the amount owed by Ex-Wife to reimburse our Client for spousal support. Upon the child’s emancipation, our Client would receive the remainder of the $90,360.00 still owed.
To read the full Appeals Court ruling, click here.