[Cite as Raska v. Raska, 2018-Ohio-3921.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

 KIMBERLEE R. RASKA                               :
                                                  :
        Plaintiff-Appellant/Cross                 :   Appellate Case No. 2018-CA-25
        Appellee                                  :
                                                  :   Trial Court Case No. 2011-DR-0391
 v.                                               :
                                                  :   (Domestic Relations Appeal from
 VINCENT M. RASKA                                 :   Common Pleas Court)
                                                  :
         Defendant-Appellee/Cross                 :
         Appellant

                                             ...........

                                            OPINION

                         Rendered on the 28th day of September, 2018.

                                             ...........

VALERIE JUERGENS WILT, Atty. Reg. No. 0040413, 333 N. Limestone Street, Suite
202A, Springfield, Ohio 45503
      Attorney for Plaintiff-Appellant/Cross Appellee

ANDREW H. JOHNSTON, Atty. Reg. No. 0088008, 215 W. Water Street, P.O. Box 310,
Troy, Ohio 45373
       Attorney for Defendant-Appellee/Cross Appellant

                                            .............



DONOVAN, J.
                                                                                        -2-




       {¶ 1} Plaintiff-appellant/cross-appellee Kimberlee R. Raska appeals a judgment of

the Clark County Court of Common Pleas, Domestic Relations Division, which overruled

her objections, as well as the objections of defendant-appellee/cross-appellant Vincent

M. Raska, to the magistrate’s decision, and terminated Vincent’s spousal support

obligation to Kimberlee effective as of June 10, 2016. Kimberlee filed a timely notice of

appeal with this Court on February 20, 2018. Thereafter on March 2, 2018, Vincent filed

a timely notice of cross-appeal of the trial court’s judgment. For the following reasons,

the judgment of the trial court is affirmed.

       {¶ 2} The record establishes that Kimberlee and Vincent were married on August

1, 1986. Three children were born during the parties’ marriage. All of the children were

emancipated at the time of these proceedings. A final judgment entry and decree of

divorce was issued on June 13, 2012, after approximately 26 years of marriage. See

Raska v. Raska, 2d Dist. Clark Nos. 2014 CA 29 and 2014 CA 35, 2014-Ohio-5449. In

the parties’ divorce decree, Kimberlee was awarded spousal support from Vincent in the

amount of $2,000 per month, effective as of May 29, 2012. The divorce decree also

stated that the spousal support would terminate seven years from the effective date or

upon the death of either party, or if Kimberlee remarried, cohabitated with, lived with, or

resided with an unrelated adult.

       {¶ 3} On June 10, 2016, Vincent filed a motion to terminate his spousal support

obligation. A series of hearings were held before the magistrate regarding Vincent’s

motion to terminate on October 19, 2016, January 27, 2017, and February 24, 2017. In

a decision issued on March 27, 2017, the magistrate recommended the termination of
                                                                                          -3-


Vincent’s spousal support obligation, effective as of June 17, 2016. Both parties filed

objections to the magistrate’s decision.

       {¶ 4} On June 15, 2017, the trial court issued a decision ordering “that the

Magistrate’s Findings and Recommended Orders filed March 27, 2017[,] shall be and are

herewith set aside and therefore are of no further legal effect.” Thereafter, the trial court

scheduled a supplemental evidentiary hearing to be held on October 10, 2017, with

respect to Vincent’s original motion to terminate spousal support filed on June 10, 2016.

Additional evidence was adduced by both parties at the supplemental hearings held on

October 10, 2017, and January 19, 2018. On February 2, 2018, the trial court issued a

decision overruling the objections of both parties and ordering the termination of Vincent’s

spousal support obligation, effective as of June 10, 2016.

       {¶ 5} It is from this decision that both parties appeal.

       {¶ 6} Because they are interrelated, Kimberlee’s first and second assignments of

error will be discussed together as follows:

       THE    TRIAL     COURT      INCORRECTLY         APPLIED     THE    LAW     OF

       COHABITATION TO THE FACTS OF THE CASE.

       THE TRIAL COURT ABUSED ITS DISCRETION FINDING THAT

       SPOUSAL [SUPPORT] SHOULD BE MODIFIED TO ZERO AND

       TERMINATING VINCENT’S SPOUSAL SUPPORT OBLIGATION.

       {¶ 7} In her first assignment, Kimberlee contends that the trial court erred when it

terminated Vincent’s spousal support obligation upon a finding that she had been

cohabitating with Bron K. Isaac. Specifically, Kimberlee argues that Vincent failed to

adduce sufficient evidence to establish that she was cohabiting with Isaac.
                                                                                            -4-


       {¶ 8} At issue in the instant case are the following provisions from the parties’

divorce decree:

       Rather, in light of the proposed property division and the equitable goal of

       spousal support, post-decree spousal support of $2,000 a month for seven

       years is reasonable and appropriate.

       It is recommended that the spousal support * * * obligation of Husband, the

       spousal support obligor, is $2,000, per month, plus a 2% processing fee, to

       be paid through Clark County Child Support Enforcement Agency.

       ***

       It is recommended that the spousal support obligation terminate seven

       years after May 29, 2012.

       It is recommended that the spousal support obligation will terminate before

       the term of the award expires if either party dies, or Wife remarries, or

       cohabitates with, or lives with, or resides with, an unrelated adult, or upon

       further order of the Court.

       It is recommended that the Court retains jurisdiction to modify the amount

       and term of this spousal support upon the change of circumstance of a

       party, which includes but is not limited to, any increase or involuntary

       decrease in the parties’ wages, salary, bonuses, living expenses or medical

       expenses in accordance to R.C. 3105.18.

       {¶ 9} This court has recognized that “[c]ohabitation is a question of fact for the trier

of facts, and if the trial court's decision is supported by some competent credible evidence

going to the essential elements of the issue, it should not be reversed by the reviewing
                                                                                        -5-

court as being against the manifest weight of the evidence.” Day v. Day, 2d Dist. Greene

No. 2002-CA-79, 2002-Ohio-6779, ¶ 4, citing Dingey v. Dingey, 2d Dist. Champaign No.

96-CA-14, 1997 WL 64036 (February 14, 1997).

       {¶ 10} Kimberlee argues that the trial court erred when it found that she and Isaac

were cohabitating. In support of her argument, she relies on our holding in Perri v. Perri,

79 Ohio App.3d 845, 608 N.E.2d 790 (2d Dist.1992). Therein, we recognized that a

primary purpose of a cohabitation provision is “ ‘to prevent a person from receiving

support from two sources, each of whom is obligated or voluntarily undertakes the duty

of total support.’ ” Id. at 850, quoting Taylor v. Taylor, 11 Ohio App.3d 279, 280, 465

N.E.2d 476 (1st Dist.1983). Accordingly, we reasoned that cohabitation is established,

and a spousal support obligation is subject to termination, when a paramour voluntarily

undertakes a duty of total support or otherwise assumes obligations equivalent to those

arising from a ceremonial marriage. Id. at 851-852. Notably, we also recognized in Perri

that, just as a former husband should not be required to pay spousal support when his

former wife is totally supported by a paramour, he likewise should not be obligated to pay

full spousal support when his former wife uses some of the money to support her

paramour rather than to provide for her own sustenance. Id.

       {¶ 11} The evidence in Perri failed to establish that the paramour, John Santy,

voluntarily had undertaken a duty of total support of the former wife or that he otherwise

had assumed obligations equivalent to those arising from a ceremonial marriage. Id. at

851. Indeed, we expressly found that the opposite was true. The former wife, Linda

Perri, was at least partially supporting Santy with spousal support obtained from her

former husband, Joseph Perri. Id. Given that Linda Perri had not obtained support from
                                                                                          -6-


Santy, we rejected the trial court's finding of cohabitation for purposes of terminating

Joseph Perri's support obligation. Id. Nevertheless, we held that Joseph Perri was not

without recourse. In particular, we reasoned that when “the evidence fails to establish

that the paramour has undertaken any obligation of support, much less an obligation of

total support,” a trial court should consider whether the relationship between the spousal

support obligee and the paramour resulted in a “change of circumstances” sufficient to

entitle the spousal support obligor to some relief. Id. at 852.

       {¶ 12} Simply put, the focus should be on whether an appreciable amount of the

spousal support paid by the obligor directly benefitted the paramour. Id. If so, the proper

remedy is not the termination of spousal support, but a reduction in the amount of support

to the extent that it directly benefitted the paramour. Id.; see also Day, 2d Dist. Greene

No. 2002-CA-79, 2002-Ohio-6779 (reversing trial court's decision terminating appellee

husband's spousal support obligation after finding that appellant wife was cohabitating

with her paramour; findings made by the magistrate and the trial court did not establish

that the paramour undertook any obligation to support appellant wife or that he assumed

any marriage-like obligations). However, we note that in neither Perri nor Day did the

court find evidence of cohabitation.

       {¶ 13} In the instant case, the trial court found that Kimberlee was cohabitating

with Isaac. The trial court made the following finding regarding cohabitation:

              The Court further finds, from the totality of the credible evidence, that

       Ms. Raska is cohabitating with Braun [sic] Isaac, despite her contentions to

       the contrary. By her own admissions, Mr. Isaac resides at her residence

       four to five nights per week and he would “contribute to the household
                                                                                         -7-


       expenses if she asked him to do so,” which she admittedly does not.

              In consideration of the foregoing, the Court finds that Mr. Raska’s

       current spousal support obligation is being utilized to subsidize the

       household maintained by Ms. Raska and Mr. Isaac to the extent that such

       an order is not appropriate or reasonable in any amount.

Decision and Final Judgment Entry, p. 8.

       {¶ 14} With respect to Kimberlee and Isaac, the record establishes that they began

dating in September 2012, shortly after the parties’ final divorce decree was filed in June

2012. Isaac testified that, in July 2015, he began living with Kimberlee at her residence

located on Wellington Drive in Springfield, Ohio. Isaac testified that he also lived with

his daughter at a residence located on Corvette Drive in New Carlisle, Ohio. However,

Isaac testified that he has never paid any rent or other household expenses related to the

residence on Corvette Avenue. Although he kept some personal property at the Corvette

Avenue residence, Isaac testified that he kept the majority of his clothes, toiletries, and

other day-to-day personal items at Kimberlee’s residence. Furthermore, Isaac testified

that he had never spent the night at his daughter’s residence where she lives with her

significant other, not Isaac. In fact, the record establishes that Isaac only received mail

at the Corvette Drive residence. The record also establishes that in June 2015, Isaac

purchased a residence in Mount Olivet, Kentucky, but only used the property as a

vacation home.

       {¶ 15} The record further establishes that Isaac was employed in Huber Heights,

Ohio, and resided in Clark County, Ohio. Isaac testified that he had an Ohio driver’s

license, voted in Ohio political elections, and filed his tax returns in Ohio. Additionally,
                                                                                        -8-


any mail associated with Isaac’s residence in Kentucky was sent to his daughter’s

residence in New Carlisle, Ohio. More importantly, the record establishes that he spent

every weeknight with Kimberlee at her residence. Isaac also testified that when he

visited his residence in Kentucky on the weekends, Kimberlee usually traveled and stayed

with him unless she had prior work commitments.

      {¶ 16} In the late spring/early summer of 2016, Kimberlee sold her residence on

Wellington Drive for approximately $166,500. Kimberlee then purchased a residence

located on W. Clark Street in North Hampton, Ohio, for approximately $70,000. Isaac

testified that he moved into the W. Clark Street house with Kimberlee. Isaac testified

that he helped Kimberlee shop for the new house. Additionally, once the house on W.

Clark Street had been purchased, Isaac personally helped Kimberlee make

improvements to the property, including building a fence. Kimberlee also had a pole barn

built on the property, and Isaac testified that he stored many of his own tools in the barn

on a permanent basis. Isaac testified that he did not pay Kimberlee any rent to live with

her at the Wellington Drive property, nor did he pay her any rent to live at the W. Clark

Street residence.

      {¶ 17} We also note that Isaac testified that he shared in the household chores

with Kimberlee, such as feeding the dogs, cleaning the house, mowing the lawn, taking

out the trash, and bringing in the trash receptacles from the curb. Both Kimberlee and

Isaac testified that they each purchased their own groceries, but they also each

acknowledged that they shared other household items at their common residence.

Furthermore, Isaac testified that when they went out to eat, they generally alternated who

paid the bill. Isaac testified that he used Kimberlee’s household utilities and did not pay
                                                                                            -9-


her for them, including internet, cable, water, sewer, electricity, and gas.

       {¶ 18} At an evidentiary hearing held on January 27, 2017, Isaac provided the

following testimony regarding the nature of his relationship with Kimberlee:

       Defense Counsel: Okay. So – getting down to a little bit more of the heart

       of it, you guys have been together for four and a half years?

       Isaac: Correct.

       Q: You love each other very, very much, right?

       A: Yes.

       Q: You are in an intimate relationship, correct?

       A: Yes.

       Q: You both have jobs?

       A: That’s correct.

       Q: Okay. And have you had any discussions about why you don’t just

       make it all official, just live together, split the bills, save some money, do all

       of these kinds of things; why don’t do [sic] you that?

       A: I’m not doing that because I had been married for 27 years and it didn’t

       work out and it was miserable. And things, the split-up was not, was not

       good. And I’m not doing it again. I don’t want anybody controlling my life

       to that extent ever again.

       Q: Okay, regardless of marriage, just splitting bills and sharing expenses,

       why don’t you guys do that?

       A: I have my own place. If things don’t work out here, I got my own place

       I can go.
                                                                                   -10-


Q: Did Ms. Raska ever make any statements that she doesn’t want anybody

to have that kind of control over her life?

A: Yes.

Q: And she doesn’t want to depend on anybody ever again?

A: Yes.

Q: Right. But in those same conversations, and you testified to this before,

that one of the most important reasons and, in fact, it was the first thing that

you guys discussed when you talked about living together with each other

is she gets spousal support and if you reside with her, she loses that?

A: That’s correct.

Q: All right. Now, is that the forefront seemingly of a thought process

between the two of you living together?

A: Yes.

Q: Okay. So, would it be fair to say that if there was not [spousal] support

going on with all of these issues, wouldn’t it make the most sense for your

mail to go to where you sleep every night. I mean, let’s be honest here.

A: Yes.

Q: All right. But, because of these concerns, you have your mail go to your

daughter’s house even though you don’t live there?

A: That’s correct.

Q: Okay. *** And that since all this has been going on, right, Ms. Raska

testified in her deposition she’s been putting the [spousal] support money

kind of away because she realized that she may lose it. Have you guys
                                                                                         -11-

      ever talked about that?

      A: I’m aware of that, yes.

      Q: So, you guys are attempting to do a trial run like, what is life like without

      this $2,000 dollars a month. Can we survive? Can we make it?

      A: I’m not sure what she is doing, but it’s not affecting me one way or the

      other.

      Q: I’m just asking what you guys talk about. You talked about putting this

      money aside, right?

      A: I know she has put it back thinking she may have to pay it back. Other

      than that, that’s all I can respond to.

      Q: Okay. And she is surviving, right?

      A: As far as I can tell.

(Emphasis added.) Tr. 55-58.

      {¶ 19} Thereafter, at a supplemental hearing held on October 10, 2017, Isaac

provided the following testimony:

      Defense Counsel: I don’t want to rehash this too much, Your Honor. – [B]ut

      prior to the hearing, you guys talked about, hey, I’m getting [spousal]

      support. You can’t live with me in order for me to keep getting spousal

      support – you and [Kimberlee] had these conversations, right?

      Isaac: We have talked about that, yes.

      Q: Absolutely. And things are set up in such a way that in theory in her

      mind and your mind, based on those conversations, allow her to continue

      receiving [spousal] support regardless of other reasons why, that is one off
                                                                                        -12-

      the things that you talked about?

      A: Yes.

(Emphasis added.)

      {¶ 20} Unlike the parties in Perri or Day, the trial court found that Kimberlee and

Isaac were cohabitating. Vincent and Kimberlee's divorce decree specifically stated that

if Kimberlee were found to be cohabitating, residing, or living with another person, who is

not a blood relative, then she will no longer be entitled to spousal support. Under these

circumstances, the rationale stated in Perri regarding modification of a spousal support

award where no cohabitation was found was inapplicable.               Rather, the record

establishes that Kimberlee and Isaac had been living together in a marriage-like state

since July 2015, first at the Wellington Drive residence, and then later at the house

Kimberlee purchased located on W. Clark Street in North Hampton Ohio.

      {¶ 21} The Ninth Appellate District has explained that when a condition

subsequent is listed in the divorce decree for termination of spousal support, a party does

not have to show a change in circumstance (the test for modification) to have the spousal

support terminated; rather, it only has to show the condition subsequent. Guggenbiller v.

Guggenbiller, 9th Dist. Lorain No. 10CA009871, 2011-Ohio-3622, ¶ 2-6. In that case,

the obligee argued the trial court incorrectly terminated spousal support based on her

cohabitation with her boyfriend. Id. at ¶ 2. The obligee contended the obligor failed to

show a substantial change in circumstance. Id. The Guggenbiller court explained that

the divorce decree indicated spousal support would terminate if she cohabitated with an

adult male. Id.   This was a condition subsequent for termination. Id. at ¶ 6.        The

Guggenbiller court then noted there is a distinction between modification and termination
                                                                                        -13-


based on a condition subsequent: “Modification is an increase or decrease in the amount

of alimony payable, or a change in the terms and conditions of payment. A condition

subsequent is a future occurrence such as remarriage, death, or cohabitation which upon

happening, accelerates the termination of the alimony award.” Id. at ¶ 4, citing Hibbard v.

Hibbard, 12th Dist. No. 88-06-078, 1988 WL 139129, *2 (Dec. 27, 1988). Accordingly,

the Guggenbiller court held that since the motion to terminate was based on cohabitation,

and cohabitation was listed as a condition subsequent for termination in the divorce

decree, the trial court had jurisdiction to terminate spousal support based on that

condition. Id. at ¶ 6.

       {¶ 22} In Hirtzinger v. Hirtzinger, 2d Dist. Clark No. 2014-Ohio-34, 2014-Ohio-

3752, we found that the parties’ divorce decree specifically stated that, if Ms. Hirtzinger

were found to be cohabitating with another person, who was not a blood relative, then

she would no longer be entitled to spousal support. Id. at ¶ 17. Essentially mirroring the

holding of the court in Guggenbiller, we held that upon finding that Ms. Hirtzinger was

cohabitating with another person, the trial court erred when it merely modified Mr.

Hirtzinger’s spousal support downward rather than terminating his obligation altogether.

Id. “Thus, we find that the trial court erred when it merely modified [Mr. Hirtzinger’s]

spousal support obligation downward to $500.00 per month. Since the trial court found

and the record supports a finding that [Ms. Hirtzinger] and [another man] were

cohabitating, the proper decision would have been to terminate [Mr. Hirtzinger’s] spousal

support obligation.” Id.

       {¶ 23} Similar to the divorce decrees at issue in Hirtzinger and Guggenbiller, the

parties’ decree contained a provision stating that Vincent’s spousal support obligation
                                                                                         -14-


would terminate before the term of the award expired if either party died, or Kimberlee

“remarries, or cohabitates with, or lives with, or resides with, an unrelated adult[.]” Upon

review, we conclude that the trial court did not err when it found that Kimberlee and Isaac

had been cohabitating since July 2015. The record establishes that Kimberlee and Isaac

shared day-to-day living expenses and lived together exclusively at Kimberlee’s house.

We find it especially significant that Isaac testified that he and Kimberlee had basically

formulated a plan whereby they would maintain the illusion that they lived separate and

apart so that Kimberlee could still receive her spousal support award from Vincent.

Notably, Isaac testified that he still received mail at his daughter’s residence because he

and Kimberlee were attempting to circumvent the cohabitation clause in the parties’

divorce decree.     Kimberlee had also been placing her unspent spousal support

payments in a separate bank account since Vincent filed his motion to terminate spousal

support, because she thought that she might potentially be required to pay them back to

Vincent.

       {¶ 24} In light of the foregoing, we conclude that the findings of fact made by the

trial court regarding cohabitation between Kimberlee and Isaac were not against the

manifest weight of the evidence. Therefore, since the parties’ divorce decree contained

a condition subsequent, i.e., cohabitation, for termination of the spousal support award,

we find that that the trial court did not err when it terminated Vincent’s spousal support

obligation. We note that the trial court additionally found that Kimberlee had experienced

a substantial change in circumstances since she and Isaac began cohabitating together,1



1Kimberlee also certainly resided and/or lived with an unrelated adult, Isaac, which
warranted termination of spousal support as well.
                                                                                          -15-


but the trial court’s findings in this regard were unnecessary. The trial court’s finding that

Kimberlee and Isaac were cohabitating forestalled any need for the trial court to address

whether Kimberlee had experienced a change of circumstance prior to termination of her

spousal support award.

       {¶ 25} Kimberlee’s first and second assignments of error are overruled.

                                 Vincent’s Cross-Appeal

       {¶ 26} Vincent’s sole assignment of error in his cross-appeal is as follows:

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED

       TO MAKE THE TERMINATION OF SPOUSAL SUPPORT RETROACTIVE

       TO THE DATE ON WHICH THE PLAINTIFF BEGAN COHABITATING

       WITH [ISAAC] IN JULY OF 2015.

       {¶ 27} As previously stated, although the trial court found that Kimberlee and Isaac

had been cohabitating since July 2015, the trial court ordered that Vincent’s spousal

support obligation be terminated retroactive to June 10, 2016, when he originally filed his

motion to terminate.    Vincent argues that Kimberlee and Isaac “discuss[ed] the need to

arrange their lives in such a way in which to prevent spousal support from terminating.”

Therefore, Vincent contends that this “scheming” on their parts created the special

circumstances whereby the trial court should have ordered the termination of spousal

support retroactive to July 31, 2015, the time when Kimberlee and Isaac first began

cohabitating.

       {¶ 28} Spousal support decisions are reviewed for abuse of discretion. Norbut v.

Norbut, 2d Dist. Greene No. 06-CA-112, 2007-Ohio 2966, ¶ 14. The trial court did not

abuse its discretion in terminating support as of the date the motion was filed, rather than
                                                                                            -16-


an earlier date. Parties may be entitled to orders terminating support retroactive to the

date their motions were filed, but they are not entitled to retroactive termination to a date

before the requests for termination were filed. See, e.g., Merkle v. Merkle, 115 Ohio

App.3d 748, 754, 686 N.E.2d 316 (7th Dist.1996).

       {¶ 29} Indeed, “[a]bsent some special circumstance,” an order of a trial court

terminating support should be retroactive to the date such modification was first

requested. Cummings v. Cummings, 2d Dist. Montgomery No. 26594, 2015-Ohio-3686,

¶ 36. Any other holding might produce an inequitable result in view of the substantial

time it frequently takes the trial court to dispose of motions to modify or terminate support

obligations. Id.

       {¶ 30} Although Isaac testified that he began “staying” with Kimberlee at the

Wellington Drive residence in July 2015, we cannot say that the trial court abused its

discretion when it ordered that Vincent’s spousal support obligation be terminated

retroactive to June 10, 2016, when he originally filed his motion to terminate. “The date

upon which cohabitation commences cannot be determined with any degree of certainty.

Cohabitation implies a course of conduct existing over a period of time. It is much more

difficult to pinpoint a specific date than it is for other events, such as marriage or divorce.”

Thomas v. Thomas, 76 Ohio App.3d 482, 487, 602 N.E.2d 385 (10th Dist.1991).

       {¶ 31} In the instant case, Kimberlee and Isaac’s alleged “scheming” regarding the

nature of their living arrangement did not present a sufficient basis upon which to find a

“special circumstance” necessary to reverse the order of the trial court and terminate

Vincent’s spousal support obligation retroactive to July 31, 2015.           Accordingly, the

termination of Vincent’s spousal support obligation will remain retroactive to June 10,
                                                                                   -17-


2016, the date on which he filed his motion to terminate.

       {¶ 32} Vincent’s cross-assignment of error is overruled.

       {¶ 33} Kimberlee’s assignments of error and Vincent’s cross-assignment of error

having been overruled, the judgment of the trial court is affirmed.

                                     .............



WELBAUM, P. J. and TUCKER, J., concur.



Copies sent to:

Valerie Juergens Wilt
Andrew H. Johnston
Hon. Thomas J. Capper
