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.