[Cite as Prokopchuk v. Prokopchuk, 2012-Ohio-4480.]


                                     COURT OF APPEALS
                                    STARK COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


DAWNA PROKOPCHUK                                      :      JUDGES:
                                                      :
                                                      :      Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellant                            :      Hon. W. Scott Gwin, J.
                                                      :      Hon. William B. Hoffman, J.
-vs-                                                  :
                                                      :      Case No. 2011CA00265
THOMAS PROKOPCHUK                                     :
                                                      :
                                                      :
       Defendant-Appellee                             :      OPINION


CHARACTER OF PROCEEDING:                                  Appeal from the Stark County Court of
                                                          Common Pleas, Domestic Relations
                                                          Division Case No. 2009 DR 01416



JUDGMENT:                                                 AFFIRMED




DATE OF JUDGMENT ENTRY:                                   September 24, 2012




APPEARANCES:

For Appellant:                                               For Appellee:

ARNOLD F. GLANTZ                                             JOHN A. BURNWORTH
4883 Dressler Rd. NW                                         4775 Munson St. NW
Canton, OH 44718                                             P.O. Box 36963
                                                             Canton, OH 44735-6963
Delaney, P.J.

       {¶1} Plaintiff-Appellant Dawna Prokopchuk appeals the November 7, 2011

judgment entry of the Stark County Court of Common Pleas, Domestic Relations

Division, to terminate spousal support. Defendant-Appellee is Thomas Prokopchuk.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Husband and Wife were married on September 27, 1980. Wife filed a

complaint for divorce and the parties stipulated incompatibility. On July 27, 2010, the

trial court issued a final divorce decree. The length of the marriage was twenty-nine

years and ten months.

       {¶3} Wife requested spousal support. The trial court considered the factors

under R.C. 3105.18(C)(1) to determine whether spousal support was both appropriate

and reasonable. Husband was employed at the time of the divorce and was on pace

to earn $128,000 in 2010. Wife was unemployed and worked as a homemaker during

the marriage. Relevant to this appeal, the trial court found Wife was in an ongoing

relationship with a third party. The trial court stated, “[h]owever, at this time there is

no way to know whether that relationship will result in cohabitation or marriage. At the

current time, Wife’s boyfriend has no statutory obligation to provide support for her,

but Husband does have that obligation.” Pursuant to the R.C. 3105.18(C)(1) factors,

the trial court found spousal support was appropriate and reasonable in the amount of

$3,300 a month from Husband to Wife.

       {¶4} Spousal support began on August 1, 2010 and was to continue for 120

months until Wife died, remarried, or cohabitated with an unrelated third party male.
(Judgment Entry, July 27, 2010). The trial court retained jurisdiction over both the

amount and length of spousal support.

      {¶5} In June 2011, Husband filed a Motion to Terminate Spousal Support.

Husband’s motion alleged Wife cohabitated with an unrelated third party male, Nathan

Yoder. The matter was assigned to the trial court judge whom previously presided

over the parties’ divorce proceedings. The trial court held an evidentiary hearing on

October 31, 2011. At the hearing, Wife, Nathan Yoder, and Husband testified. Wife

stipulated Nathan Yoder and she were living together for a sustained duration. She

disputed that she and Nathan Yoder were sharing living expenses.

      {¶6} On November 7, 2011, the trial court issued its ruling granting Husband’s

motion to terminate spousal support. The trial court found the evidence at the divorce

hearing did not establish Wife was cohabitating with Nathan Yoder. The testimony

presented at the October 31, 2011 hearing, however, caused the trial court to reach a

different conclusion that Wife and Nathan Yoder were cohabitating because they were

sharing expenses. The trial court terminated Husband’s spousal support obligation

effective November 15, 2011. The trial court did not retain jurisdiction over spousal

support in the November 7, 2011 judgment entry.

      {¶7} It is from this decision Wife now appeals.

                            ASSIGNMENTS OF ERROR

      {¶8} Wife raises four Assignments of Error:

      {¶9}   “I. THE TRIAL COURT’S DECISION TO TERMINATE SPOUSAL

SUPPORT BASED ON COHABITATION WAS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.
      {¶10} “II. THE TRIAL COURT ERRED IN RELYING ON EVIDENCE THAT

WAS NOT IN THE RECORD.

      {¶11} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT

RESERVING JURISDICTION TO MODIFY THE SPOUSAL SUPPORT AWARD.

      {¶12} “IV. THE TRIAL COURT ERRED IN ELIMINATING RATHER THAN

REDUCING THE SPOUSAL SUPPORT AWARD.”

                                     ANALYSIS

                                          I.


      {¶13} Wife argues in her first Assignment of Error that it was against the

manifest weight of the evidence for the trial court to terminate Husband’s spousal

support obligation based on Wife’s cohabitation. We disagree.

      {¶14} “Within the context of a divorce decree, ‘cohabitation’ contemplates a

relationship that approximates, or is the functional equivalent of, a marriage.” Keeley

v. Keeley, 12th Dist. Nos. CA1999-07-075, CA1999-08-080, at 3, 2000 WL 431362

(Apr. 17, 2000) citing Piscione v. Piscione, 85 Ohio App.3d 273, 275, 619 N.E.2d 1030

(9th Dist. 1992). In determining whether cohabitation exists, we note the holding in

Moell v. Moell, 98 Ohio App.3d 748, 752, 649 N.E.2d 880 (6th Dist. 1994):

             Many factors may be considered in deciding whether cohabitation

      exists in a particular set of facts. We previously addressed the issue of

      cohabitation in Dickerson v. Dickerson, supra. In that case, we noted

      that “cohabitation” describes an issue of lifestyle, not a housing

      arrangement. Dickerson, supra, 87 Ohio App.3d at 850, 623 N.E.2d at

      239. 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-to-day incidental expenses.”          Id. at fn. 2, citing

      Birthelmer v. Birthelmer (July 15, 1983), Lucas App. No. L83–046, 1983

      WL 6869.

Shippy v. Shippy, 5th Dist. No. 10CA000016, 2010–Ohio–5332, ¶ 28; See also,

Waters v. Boney, 5th Dist. No. 2008-CA-00127, 2009-Ohio-574.

      {¶15} In reviewing a case involving domestic violence, the Ohio Supreme Court

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.        Possible

      factors establishing shared familial or financial responsibilities might

      include provisions for shelter, food, clothing, utilities, and/or commingled

      assets. Factors that might establish consortium include mutual respect,

      fidelity, affection, society, cooperation, solace, comfort, aid of each other,

      friendship, and conjugal relations.     These factors are unique to each

      case and how much weight, if any, to give to each of these factors must

      be decided on a case-by-case basis by the trier of fact.

Bickham v. Bickham, 5th Dist. No. 11-CA-9, 2011-Ohio-4213, ¶ 6-7 quoting State v.

Williams, 79 Ohio St.3d 459, 465, 683 N.E.2d 1126 (1997).
      {¶16} This Court examined “whether or not a particular living arrangement rises

to the level of a * * * ‘cohabitation’” in Yarnell v. Yarnell, 5th Dist No. 05CAF0064,

2006-Ohio-3929, ¶ 42 citing Crissinger v. Crissinger, 7th Dist. No. 05-HA-579, 2006-

Ohio-754. We stated that “cohabitation” is a factual question to be initially determined

by the trial court. Yarnell, supra, citing Dickerson v. Dickerson, 87 Ohio App.3d 848,

851, 623 N.E.2d 237 (6th Dist. 1993). A finding as to cohabitation that is supported by

some competent, credible evidence will not be reversed by a reviewing court as

against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction

Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). A reviewing court must not substitute

its judgment for that of the trial court where there exists some competent and credible

evidence supporting the judgment rendered by the trial court. Myers v. Garson, 66

Ohio St.3d 610, 614 N.E.2d 742 (1993).         In determining whether competent and

credible evidence exists, “[a] reviewing court should be guided by a presumption that

the findings of a trial court are correct, since the trial judge is best able to view the

witnesses and observe their demeanor, gestures, and voice inflections, and use those

observations in weighing the credibility of the testimony.” Bey v. Bey, 3rd Dist. No.

10–08–12, 2009–Ohio–300, ¶ 15, quoting Barkley v. Barkley, 119 Ohio App.3d 155,

159, 694 N.E.2d 989 (4th Dist.1997).

      {¶17} In the present case, Wife does not dispute that she and Nathan Yoder

are living together and have lived together for a sustained duration. Wife disputes that

she and Nathan Yoder are cohabitating because they do not share expenses with

respect to financing and day-to-day incidental expenses.
       {¶18} The following testimony was elicited at the October 31, 2011 hearing.

Yoder testified he and Wife moved in together at his apartment at 1807 Fulton on

December 2, 2009. Yoder testified he was employed as a homebuilder and earned

approximately $30,000 per year.       Wife was unemployed and her only source of

income was spousal support. Yoder paid the rent and electric bill; Wife paid the cable

bill. Yoder and Wife then moved to 2540 Edison. Wife paid the rent and all utilities at

that residence. The parties testified they did not share expenses in any way. If Yoder

paid for utilities at any time, he testified he reimbursed Wife with cash.

       {¶19} Wife was given a 2009 Subaru pursuant to the divorce decree. Wife did

not make payments on the vehicle and Husband took the vehicle to prevent it from

being repossessed.      Yoder allowed Wife to drive his vehicle.             Yoder paid the

automobile insurance on this vehicle.

       {¶20} At the hearing, Wife’s bank records were admitted into evidence. As

stated above, Wife’s only income was $3,300 in monthly spousal support payments.

Wife had $5,894.60 in cash deposits into her bank account. Wife explained that she

used Pay Day Loans to make cash deposits into her bank account. The trial court

accounted for $2,050 of the $5,894.60 in cash deposits but could not explain the

remaining $3,844.60 in deposits.

       {¶21} In making its decision to grant Husband’s motion to terminate his spousal

support obligation, the trial court relied upon our decision in Bickham v. Bickham, 5th

Dist. No. 11-CA-9, 2011-Ohio-4213. The trial court first found Yoder and Wife lived

together for a sustained duration. The trial court next examined whether the evidence

showed Yoder and Wife shared expenses.
      {¶22} The trial court first found Wife and Yoder to not be credible, considering

the differences in their testimony given at the original divorce proceeding and their

testimony at the October 31, 2011 hearing. The trial court next reviewed the evidence

presented as to the sharing of expenses. The unexplained cash deposits in Wife’s

bank account and the Wife’s use of Yoder’s vehicle for free demonstrated to the court

that Yoder and Wife shared expenses with respect to financing and day-to-day

incidental expenses.

      {¶23} In Bickham, this Court reviewed a case where a former wife and her

paramour lived together for a sustained duration. The issue was whether there was

evidence of sharing of expenses and finances on a day-to-day basis to find

cohabitation. We stated:

             Both appellee and Mr. Hahn stated that Mr. Hahn provided no

      support for appellee or her residence. T. at 15, 125. Although Mr. Hahn

      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. T. at 205,

      217–218. At one point, Mr. Hahn took the absurd position that he did not

      even use toilet paper.      T. at 184.     Both appellee and Mr. Hahn

      maintained that funds to appellee via credit card purchases or the loan to

      her for a down payment on her condo were to be paid back. T. at 38,

      138–139, 160.        They attempted to support this argument with

      spreadsheets that were not drafted until after appellant's motion was

      filed. T. at 151. In fact, Mr. Hahn admitted the balance forward used to

      initiate the spreadsheet could not be documented. T. at 177. Mr. Hahn
permitted appellee to have access to his credit card accounts up to their

limits. T. at 155–156.

      Appellant presented evidence that although appellee's income

was limited to her employment ($20,000–$21,000), child support

($1,150.00 per month) and spousal support ($1,750.00 per month), her

expenses exceeded the total by $139.72 a month.             T. at 98–99.

Appellee could not explain the deficit nor could she explain how her

checking account deposits were some $30,000 in excess of her income.

T. at 55–56. Even if we accepted appellee's statement that her parents

gifted her possibly $5,000 a year (T. at 33), it does not account for the

unexplained funds.

      Proof of shared expenses does not have to be by direct evidence

alone, but can be established by circumstantial evidence. In this case,

the direct evidence of the unexplained funds leads to the logical

inference that appellee is receiving funds from Mr. Hahn.

      Either we accept Mr. Hahn's position that he is a visitor at

appellee'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 (Mr. Hahn

also pays spousal support) who are trying to delude the trial court.

Either Mr. Hahn 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. T. at 105, 109. We conclude 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.

Bickham, at ¶22-25.

      {¶24} We have reviewed the record in this case and find the trial court’s

reliance on our holding in Bickham as to the issue of cohabitation is supported by

competent and credible evidence. The evidence shows that Yoder and Wife shared

expenses with respect to financing and day-to-day incidental expenses.

      {¶25} Wife’s first Assignment of Error is overruled.

                                           II.

      {¶26} Wife argues in her second Assignment of Error that the trial court

erroneously relied upon the record in the divorce proceeding to reach its decision on

Husband’s motion to terminate spousal support. Wife states no transcript was made

of the divorce trial so there was no evidence before the trial court as to Wife’s prior

testimony as to cohabitation.

      {¶27} In this case, the trial court judge presiding over the motion to terminate

spousal support is the same judge that heard and ruled on the parties’ divorce

proceeding. A review of the November 7, 2011 judgment entry shows the trial court

refers to the testimony in the divorce proceeding, but does not rely solely on that

testimony to make its decision that Yoder and Wife are cohabitating. The trial court

states that while it believed Wife misrepresented in the original trial that she was not

sharing expenses with Yoder, he found the evidence presented at the October 31,

2011 hearing made the court believe they were currently sharing expenses. The trial
court also found there were unexplained cash deposits in Wife’s bank account and

Wife was driving Yoder’s van for free. (Judgment Entry, November 7, 2011). Based

on this evidence, the trial court concluded under Bickham that Yoder and Wife were

cohabitating.

       {¶28} Wife’s second Assignment of Error is overruled.

                                            III.

       {¶29} Wife contends in her third Assignment of Error the trial court abused its

discretion in failing to reserve jurisdiction to modify the spousal support award in the

November 7, 2011 judgment entry. Wife makes a policy argument that if we affirm the

trial court’s decision to terminate spousal support based on cohabitation, if that alleged

relationship were to end, Wife would have no future source of financial support if the

trial court does not retain jurisdiction over spousal support.

       {¶30} The decision of whether to retain jurisdiction over spousal support is a

matter within the domestic relations court's discretion. Smith v. Smith, 6th Dist. No. L–

98–1027, 1998 WL 904941 (Dec. 31, 1998), citing Johnson v. Johnson, 88 Ohio

App.3d 329, 331, 623 N.E.2d 1294 (5th Dist. 1993). An abuse of discretion implies a

trial court's decision is unreasonable, arbitrary, or unconscionable.      Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶31} We find no abuse of discretion in this instance. “When cohabitation is

established, the obligation to pay spousal support can be properly terminated even if

the relationship between the recipient spouse and the paramour comes to an end prior

to the end of the period within which the former spouse is required to pay spousal

support under the terms of the divorce decree. Perri v. Perri (1992), 79 Ohio App.3d
845, 852, 608 N.E.2d 790. Thus, termination of cohabitation neither revives a spousal

support obligation, nor results in the continuation of support.” Keeley v. Keeley, supra.

      {¶32} Wife’s third Assignment of Error is overruled.

                                           IV.

      {¶33} Wife argues in her fourth Assignment of Error the trial court erred in

terminating spousal support, rather than reducing the spousal support award.

      {¶34} Modifications of spousal support are reviewable under an abuse of

discretion standard. Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). In

order to find an abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 450 N.E.2d 1140 (1983).

      {¶35} The parties’ divorce decree stated spousal support began on August 1,

2010 and was to continue for 120 months until Wife died, remarried, or cohabitated

with an unrelated third party male. (Judgment Entry, July 27, 2010). The trial court

retained jurisdiction over both the amount and length of spousal support.

      {¶36} The divorce decree is explicit in its terms that Wife received spousal

support until Wife cohabitated with an unrelated third party male. As we have affirmed

above, there was competent, credible evidence for the trial court to determine Wife

cohabitated with Yoder. As such, there was no abuse of discretion for the trial court to

follow the dictates of the divorce decree and terminate spousal support as opposed to

a reduction in spousal support.

      {¶37} Wife’s fourth Assignment of Error is overruled.
                                    CONCLUSION

         {¶38} The four Assignments of Error of Plaintiff-Appellant Dawna Prokopchuk

are overruled.

         {¶39} The judgment of the Stark County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Delaney, P.J.

Gwin, J. and

Hoffman, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. W. SCOTT GWIN



                                       HON. WILLIAM B. HOFFMAN


PAD:kgb
                       IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                              FIFTH APPELLATE DISTRICT


DAWNA PROKOPCHUK                       :
                                       :
                                       :
                                       :      JUDGMENT ENTRY
       Plaintiff-Appellant             :
                                       :
                                       :
-vs-                                   :      Case No. 2011CA00265
                                       :
THOMAS PROKOPCHUK                      :
                                       :
                                       :
                                     :
   Defendant-Appellee                :


   For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas, Domestic Relations Division is affirmed. Costs

assessed to Appellant.




                                     HON. PATRICIA A. DELANEY



                                     HON. W. SCOTT GWIN



                                     HON. WILLIAM B. HOFFMAN
