[Cite as Justice v. Smith, 2020-Ohio-1068.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




 TAWNIA JUSTICE,                                    :

        Appellant,                                  :     CASE NO. CA2019-07-069

                                                    :          OPINION
     - vs -                                                     3/23/2020
                                                    :

 STEVEN DAVID SMITH,                                :

        Appellee.                                   :




              APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                         DOMESTIC RELATIONS DIVISION
                             Case No. 17DR039957


Graydon Head & Ritchey LLP, Michael D. McNeil, 312 Walnut Street, Suite 1800,
Cincinnati, Ohio 45202, for appellant

Smith, Meier & Webb, LPA, Andrew P. Meier, 140 North Main Street, Suite B, Springboro,
Ohio 45066, for appellee



        PIPER, J.

        {¶ 1} Appellant, Tawnia Justice, appeals a decision of the Warren County Court of

Common Pleas, Domestic Relations Division, granting a motion to terminate spousal

support in favor of appellee, Steven David Smith.

        {¶ 2} Justice and Smith were married in 2010 and later divorced in 2017. As part
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of the parties' separation agreement, Smith agreed to pay Justice $5,300 per month for 18

months or until either party's death or Justice's remarriage or cohabitation. Approximately

six months after Smith began his spousal support payments, he moved to terminate spousal

support based on his assertion that Justice was cohabiting with her paramour, Paul

Darwish.

       {¶ 3} A magistrate held a hearing and issued a decision that Justice had in fact

cohabited with her paramour.         The magistrate terminated Smith's spousal support

retroactive to the date that Justice’s cohabitation. Justice filed objections to the magistrate's

decision, which were overruled by the trial court. Justice now appeals the trial court's

decision, raising the following assignment of error:

       {¶ 4} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING

THAT APPELLANT AND PAUL DARWISH LIVED TOGETHER IN SUCH A MANNER

THAT CONSTITUTES COHABITATION, WHICH IS A BASIS FOR TERMINATING

SPOUSAL SUPPORT.

       {¶ 5} Justice argues in her assignment of error that the trial court abused its

discretion in finding that she cohabited with Darwish.

       {¶ 6} A trial court has broad discretion in determining matters related to spousal

support based on the facts and circumstances of each case. Schuh v. Schuh, 12th Dist.

Butler No. CA2014-01-007, 2014-Ohio-4755, ¶ 10. More than an error of law or judgment,

an abuse of discretion connotes that the trial court's decision is arbitrary, unreasonable or

unconscionable. McFarland v. McFarland, 12th Dist. Butler No. CA2018-05-098, 2019-

Ohio-2673, ¶ 11.

       {¶ 7} In a domestic relations context, cohabitation contemplates a relationship that

is the functional equivalent of a marriage. Fox v. Fox, 12th Dist. Clermont No. CA2013-08-

066, 2014-Ohio-1887, ¶ 27. In determining whether cohabitation exists, courts consider

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three principal factors: "(1) an actual living together; (2) of a sustained duration; and (3) with

shared expenses [in] respect to financing and day-to-day incidental expenses." Keith v.

Keith, 12th Dist. Butler No. CA2010-12-335, 2011-Ohio-6532, ¶ 11. Thus, cohabitation

"requires not only a relationship, sexual or otherwise, of a permanent, continuing nature,

but also some sort of monetary support between the spouse and the paramour * * *."

Cravens v. Cravens, 12th Dist. Warren No. CA2008-02-033, 2009-Ohio-1733, ¶ 10.

       {¶ 8} Whether a particular relationship or living arrangement constitutes

cohabitation is a question of fact determined by the trial court on a case-by-case basis.

Burns v. Burns, 12th Dist. Warren No. CA2011-05-050, 2012-Ohio-2850, ¶ 10. Where there

is competent, credible evidence to support the trial court's decision, there is no abuse of

discretion. Renz v. Renz, 12th Dist. Clermont No. CA2010-05-034, 2011-Ohio-1634, ¶ 7.

Consequently, an appellate court will not overturn a trial court's finding regarding

cohabitation so long as it is supported by some competent, credible evidence. Fox, 2014-

Ohio-1887.

       {¶ 9} Proof of cohabitation does not have to be by direct evidence alone, but can

be established by circumstantial evidence. Hosler v. Hosler, 12th Dist. Clermont No.

CA2017-10-052, 2018-Ohio-4486. A trial court has the best opportunity to observe the

demeanor and assess the credibility of each witness. Cravens, 2009-Ohio-1733 at ¶ 11.

       {¶ 10} During the hearing, the magistrate heard evidence that established Justice

and Darwish engaged in an "actual living together" of a "sustained duration."                The

magistrate heard testimony from Justice that she and Darwish met in 2016 and began

dating a few weeks later. Justice moved into Darwish's home in March 2017 when she left

the marital home she shared with Smith, and continued to live there until September 2017.

       {¶ 11} During the first time Justice lived with Darwish, she claimed that she only did

so because she feared for her safety during the marriage and that Darwish was openly

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dating another woman in addition to her. During this time, Justice did not pay Darwish rent

or contribute to the utilities. Justice moved out of Darwish's home in October 2017 so that

he could explore his future with the other woman he was dating. Justice then moved into a

home owned by a friend where she also lived rent free.

        {¶ 12} In November 2017, Justice continued her relationship with Darwish. Justice

testified that she stayed with Darwish approximately three times a week and began staying

with him even more in 2018. In March 2018, Justice moved back into Darwish's home.1

She did not leave his residence until June 1, 2018 when she moved into a house she

purchased. Justice testified that she began an "exclusive" relationship with Darwish in

August 2018, but the magistrate questioned Justice's credibility as to the date when the

couple began an exclusive relationship. Instead, the magistrate found it "overly convenient"

that the two rekindled their relationship only after Justice moved out of Darwish's home.2

        {¶ 13} After reviewing the record, we find there was competent, credible evidence

demonstrating a shared living arrangement for a sustained period because Justice lived

with Darwish for three months when they resumed living together and renewed their

romantic relationship.

        {¶ 14} Regarding shared expenses, the magistrate heard competent, credible

evidence that Darwish supported Justice in a way that might occur in a marital relationship.

It is undisputed that Darwish made the initial purchase of Justice's gym where she maintains

a business as a personal trainer. Out of the $34,000 investment on her behalf, Justice has




1. The magistrate also heard from a private investigator hired by Smith. The investigator observed Justice's
vehicle parked near Darwish's residence every day of the surveillance period during late-evening and early-
morning hours.

2. In both a civil and criminal case, the credibility of the witnesses is primarily for the trial court. State v.
DeHaas, 10 Ohio St.2d 230 (1967). This court must accord due deference to creditability determinations of
the trial court, as it is not our role to substitute our determination of credibility in place of the trial court's
determination. McVean v. McVean, 12th Dist. Butler No. CA2018-03-054, 2018-Ohio-4062, ¶ 24.

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repaid only $10,000 and admitted there was a "handshake agreement" rather than any legal

documentation to repay Darwish the remaining $24,000. While the dissent gives little

weight to this questionable explanation of the financial arrangement supporting Justice's

income-producing enterprise due to when it occurred, it must be considered in context of

the trial court's credibility determination of Justice's testimony as to financial arrangements

and the support being provided by Darwish.

       {¶ 15} Justice also testified that when she lived with Darwish, she did not pay rent or

contribute to household expenses. The testimony clearly established Justice relied upon

Darwish paying the utilities and providing a residence while the two were in an established

relationship. Many marital relationships are comprised of one spouse passively partaking

of the benefits of cohabitation via the financial income and resources of the other spouse.

The absence of a paper trail may certainly be considered in context of the trial court's

assessment of credibility. Additionally, passively paying routine expenses for a paramour

may reasonably be considered by the trial court as "some sort of monetary support."

Cravens, 2009-Ohio-1733 at ¶ 10.

       {¶ 16} This is similar to our decision in Hosler where we found cohabitation based in

part on the existence of shared expenses and monetary support. 2018-Ohio-4486, ¶ 25.

Therein, we determined that the appellant was supported by her paramour where she lived

in his home rent free without "an agreement wherein [appellant] experienced any financial

detriment to live in the home." Id.

       {¶ 17} Justice admitted during her testimony that she did not pay rent or any

expenses when she lived with Darwish. Instead, Darwish paid all expenses for the home

where he and Justice lived so that Justice would not experience any financial detriment.

The notion of a paramour or spouse financially paying the bills for the support of their live-

in partner or spouse is not a particularly unique phenomenon. In the instant case, Justice

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was enabled to use her alimony payments and income towards other pursuits such as the

business endeavor she and her paramour had financed. Thus, we determine the trial court

was not unreasonable in finding Darwish and Justice shared living arrangement expenses

in a manner considered functionally equivalent to a marriage.

        {¶ 18} After reviewing the record, we find that the trial court did not err in determining

that Justice cohabitated with Darwish and we cannot join the dissent in finding the trial court

abused its discretion.3 To the contrary, we find the trial court did not abuse its discretion by

terminating spousal support and that Justice's single assignment of error is overruled.

        {¶ 19} Judgment affirmed.

        RINGLAND, J., concurs.

        HENDRICKSON, P.J., dissents.



        HENDRICKSON, P.J., dissenting.

        {¶ 20} I respectfully dissent from the majority's decision as Smith did not meet his

burden of establishing that Justice was cohabiting with Darwish. There was not competent

and credible evidence presented that Justice and Darwish had shared expenses with

respect to financing and day-to-day incidental expenses while living with one another.

        {¶ 21} As the majority opinion correctly identifies, cohabitation contemplates a

relationship that is the functional equivalent of marriage. Fox v. Fox, 12th Dist. Clermont

No. CA2013-08-066, 2014-Ohio-1887, ¶ 27. "In determining whether cohabitation exists,

courts consider whether there is '(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.'" Delgado v. Delgado, 12th Dist. Clermont No. CA2018-03-007, 2018-Ohio-



3. As noted above, where there is competent, credible evidence to support the trial court's decision, there is
no abuse of discretion. Renz v. Renz, 12th Dist. Clermont No. CA2010-05-034, 2011-Ohio-1634, ¶ 7.

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4938, ¶ 24, quoting Keith v. Keith, 12th Dist. Butler No. CA2010-12-335, 2011-Ohio-6532,

¶ 11. "Cohabitation 'requires not only a relationship, sexual or otherwise, of a permanent,

continuing nature, but also some sort of monetary support between the spouse and the

paramour so as to be functional equivalent of a marriage.'" Cravens v. Cravens, 12th Dist.

Warren No. CA2008-02-033, 2009-Ohio-1733, ¶ 10, quoting Barrett v. Barrett, 12th Dist.

Butler No. 95-06-110, 1996 Ohio App. LEXIS 2381, *27 (June 10, 1996).

        {¶ 22} While the determination of whether a particular relationship or living

arrangement constitutes cohabitation is a question of fact to be decided by the trial court on

a case-by-case basis, the party seeking to terminate spousal support has the burden of

establishing cohabitation.         Dickerson v. Dickerson, 87 Ohio App.3d 848, 851 (6th

Dist.1993); Morford v. Morford, 11th Dist. Ashtabula No. 2017-A-0044, 2018-Ohio-3439, ¶

21.

        {¶ 23} In the present case, Smith did not present competent, credible evidence of

financial support between Justice and Darwish during the three-month time period the two

lived together.4 No evidence was introduced indicating that during this three-month period,

Darwish or Justice comingled their funds or relied on one another for financial support and

for the purchase of day-to-day incidental expenses. Justice testified that she maintained a

personal bank account at JP Morgan Chase and that Darwish did not have access to that

account. Although Darwish and Justice attended the same conferences together, they each


4. As the trial court and majority opinion note, Justice lived with Darwish on two separate occasions. The
first time was from March 2017 until September 2017, while her divorce from Smith was being finalized. After
moving out of Darwish's residence in September 2017, Justice lived with a friend. Justice moved back in with
Darwish in March 2018. Three months later, in June 2018, she moved into her own residence. Smith's motion
to terminate spousal support was filed on April 16, 2018, about a month after Justice moved into Darwish's
home for the second time. By the time a hearing was held on Smith's motion to terminate spousal support in
January 2019, Justice was living in her own residence. The trial court found the three-month period that
Justice and Smith lived together from March 2018 to June 1, 2018 constituted as a "sustained duration" for
purposes of cohabitation. Though I have reservations about whether three months is of sufficient duration to
qualify as cohabitation; see Hartman v. Hartman, 9th Dist. Summit No. 22303, 2005-Ohio-4663, ¶ 19; I find it
unnecessary to discuss this issue as the evidence presented at the hearing failed to demonstrate that Justice's
and Darwish's finances were intertwined and that the two shared day-to-day expenses.

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paid their own expenses associated with the conference. Despite the fact that Justice was

employed as a personal trainer and received $5,300 in monthly spousal support from Smith,

Justice did not assist in paying Darwish's monthly expenses.

       {¶ 24} The trial court and the majority rely on the fact that Justice did not pay rent or

utilities as evidence that Darwish financially supported Justice, with the former equating the

situation to that of a marriage where one partner works while the other partner is a

homemaker. There are multiple problems with such a comparison. First, all evidence

presented at the hearing indicates that Justice was employed and working outside the home

during the three months she lived with Darwish. Second, no evidence was introduced that

Justice acted as a homemaker or caretaker for the home as a means of contributing to the

home. That Darwish continued to pay his reoccurring household bills during the three

months that Justice lived with him without contribution from Justice does not mean the two

were in a relationship that was the functional equivalent of a marriage. Moreover, there is

no evidence in the record that Darwish's reoccurring household bills increased during the

three months Justice lived with him.

       {¶ 25} In trying to establish the third prong, the financial prong, of cohabitation, the

majority includes the purchase of physical space for Justice's personal training business.

However, this transaction has no application here as (1) the acquisition occurred prior to

the three-month period of time (March 2018 to May 2018) where the trial court found there

was cohabitation, and (2) it was simply a business arrangement where Darwish paid all of

the expenses upfront in acquiring the space and Justice verbally agreed to pay him back,

as evidenced by the $10,000 payment she made in April 2018. Therefore, this financial

arrangement should not be considered when determining whether Justice and Darwish

comingled their funds or relied on one another for financial support and for the purchase of

day-to-day incidental expenses. However, even if consideration were given to Justice and

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Darwish's business arrangement, the arrangement is not indicative of a marital-like

relationship. In a marital relationship one does not normally see an exchange of finances

wherein one spouse pays for the business expenditures of the other spouse with the

expectation of being reimbursed by the other spouse.

      {¶ 26} The majority claims that "passively paying routine expenses for a paramour

may reasonably be considered by the trial court as 'some sort of monetary support'" and

cites to Cravens v. Cravens, 2009-Ohio-1733, in support of this contention. Cravens,

however, does not stand for such a proposition. In Cravens, this court upheld a trial court's

denial of a motion to terminate spousal support upon finding that "[t]here was no evidence

in the record of financial support flowing between [the ex-wife] and [her paramour] so as to

constitute the functional equivalent of marriage."    Id. at ¶ 17. There,     the trial court

determined that the ex-wife and the paramour were "merely boyfriend and girlfriend" and

were not cohabitating. Id. The facts presented in that case establish that although the

paramour frequently stayed with the ex-wife and helped out with ex-wife's household chores

by carrying in groceries and taking out the garbage, there was no financial support

exchanged between the two where the two did not have joint bank accounts, joint debts, or

joint bills and there was no evidence that the paramour paid any of ex-wife's expenses. Id.

at ¶ 13-17.

      {¶ 27} As this court has previously recognized, "'cohabitation, in the legal sense,

implies that some sort of monetary support is being provided by the new partner or for the

new partner. Without a showing of support, merely living together is insufficient to permit a

termination of [spousal support].'" Barrett, 1996 Ohio App. LEXIS 2381 at *23, quoting

Thomas v. Thomas, 76 Ohio App.3d 482, 485 (10th Dist.1991). Therefore, in cases where

cohabitation has typically been found, there has been some evidence in the record to

establish the sharing of expenses equivalent to that of a marriage. See Delgado, 2018-

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Ohio-4938 at ¶ 30 (cohabitation found there was a sharing of expenses relating to cell

phone bills, the purchase of household items, donations made to a child's school charity,

the purchase of child's clothing, hotel and travel expenses, and child support obligations).

Conversely, we have upheld a trial court's determination that there was no cohabitation in

cases where the requisite element of shared expenses was not established. See Binks v.

Binks, 12th Dist. Butler No. CA2018-02-023, 2019-Ohio-17, ¶ 32 (upholding the trial court's

determination that there was no cohabitation where there was no evidence the paramour

supported the ex-spouse or that the two had shared finances); Burns v. Burns, 12th Dist.

Warren No. CA2011-05-050, 2012-Ohio-2850, ¶ 11-13 (upholding the trial court's

determination that there was no cohabitation where the record did not contain any evidence

that the ex-wife and any of her paramours shared in their finances or that they held

themselves out to be a married couple). Here, the record before us is devoid of any

evidence that Justice's and Darwish's personal and incidental expenses were shared.

      {¶ 28} The present case differs significantly from Hosler v. Hosler, 12th Dist.

Clermont No. CA2017-10-052, 2018-Ohio-4486, the case cited by the majority and relied

on by the trial court. In Hosler, the ex-wife was found to be cohabiting with her paramour

where the evidence demonstrated that the ex-wife lived with her paramour rent free,

provided gratuitous childcare services for her paramour's child, and received money from

her paramour through cash transfers, checks, and direct deposits into her checking

account. Id. at ¶ 25, 29. Additional testimony in that case also established that the ex-wife

did not seek employment outside the home after ending her job with her paramour's mother

and instead relied on her paramour to assist in paying her day-to-day incidentals, such as

groceries and gas and repair bills for her vehicle. Id. at ¶ 30-31. The ex-wife further

entwined her finances with her paramour's by adding her paramour and his son to her

cellular plan, by purchasing a cell phone for her paramour's son, and by making payments

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for her paramour's son's overseas class trip. Id. at ¶ 32-33. Facts like those in Hosler,

which show financial entwinement and the sharing of personal expenses, are not present

in the record before us.

      {¶ 29} The mere fact that an ex-spouse and a paramour live with one another is not

sufficient to establish cohabitation. Two more additional prongs must be established in

order to make a finding of cohabitation: (1) a sustained duration and (2) shared expenses

with respect to financing and day-to-day incidental expenses. Delgado, 2018-Ohio-4938, ¶

24. Due to the lack of evidence that there was financial support flowing between Justice

and Darwish so as to constitute the functional equivalent of marriage, I would sustain

Justice's assignment of error, reverse the trial court's decision finding cohabitation, and

deny Smith's motion to terminate spousal support.




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