[Cite as Bickham v. Bickham, 2011-Ohio-4213.]


                                      COURT OF APPEALS
                                   FAIRFIELD COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



KATHY S. BICKHAM                                :      JUDGES:
                                                :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :      Hon. Sheila G. Farmer, J.
                                                :      Hon. Julie A. Edwards, J.
-vs-                                            :
                                                :
WILLIAM H. BICKHAM                              :      Case No. 11-CA-9
                                                :
        Defendant-Appellant                     :      OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common Pleas,
                                                    Domestic Relations Division, Case No.
                                                    2006DR00500


JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT ENTRY:                             August 22, 2011




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

RONALD L. SOLOVE                                    ANTHONY W. GRECO
KERRY L. MCCORMICK                                  KENNETH L. FINLEY
ELISABETH M. HOWARD                                 6810 Caine Road
79 Thurman Avenue                                   Columbus, OH 43235
Columbus, OH 43206
Fairfield County, Case No. 11-CA-9                                                       2

Farmer, J.

       {¶1}   On December 8, 2006, appellant, William Bickham, and appellee, Kathy

Bickham, entered into an agreed judgment entry decree of divorce, resolving all issues

related to their minor child and the termination of their marriage.       Pursuant to the

agreement, appellant was to pay appellee spousal support in the amount of $1,750.00

per month, to terminate upon the death of either party, appellee's remarriage or

cohabitation, or the expiration of 102 months.

       {¶2}   On February 18, 2009, appellant filed a motion to terminate spousal

support due to the fact that appellee was cohabitating with Robert Hahn. A hearing

before a magistrate was held on March 24, 2010. By decision filed November 9, 2010,

the magistrate found insufficient proof of appellee and Mr. Hahn cohabitating and

denied the motion. Appellant filed objections. By decision filed January 3, 2011, the

trial court overruled the objections and approved and adopted the magistrate's decision.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶4}   "THE COURT ERRED AND ABUSED ITS DISCRETION IN FINDING

THAT    APPELLEE      DOES     NOT     COHABITATE       WITH    ROBERT       HAHN     AND

CONTINUING        SPOUSAL        SUPPORT,        THE    COURT'S       DECISION       WAS

UNREASONABLE AND AGAINST THE MANIFEST WEIGHT OF EVIDENCE."

                                             I

       {¶5}   Appellant claims the trial court erred in denying his motion to terminate his

spousal support order. We agree.
Fairfield County, Case No. 11-CA-9                                                         3


       {¶6}     Appellant specifically challenges the trial court’s finding that appellee was

not cohabitating with Mr. Hahn. In reviewing a case involving domestic violence, the

Supreme Court of Ohio set forth two primary factors to consider in determining

cohabitation:

       {¶7}     "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." State v. Williams (1997), 79 Ohio St.3d 459, 465.

       {¶8}     In Shippy v. Shippy, Guernsey App. No. 10CA000016, 2010-Ohio-5332,

¶28, this court quoted the following from Moell v. Moell (1994), 98 Ohio App.3d 748,

752:

       {¶9}     " '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
Fairfield County, Case No. 11-CA-9                                                    4


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.' " See also, Waters v. Boney, Stark App. No.

2008-CA-00127, 2009-Ohio-574.

       {¶10} We note a judgment 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. (1978), 54 Ohio St.2d 279. 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, 1993-Ohio-9.

       {¶11} In denying appellant's motion, the magistrate's November 9, 2010

decision, approved and adopted by the trial court, cited the separate residences of Mr.

Hahn and appellee, as well as the lack of evidence regarding shared expenses:

       {¶12} "In applying the three factors enumerated in Dickerson, there is no doubt

that Ms. Bickham and Mr. Hahn have a committed exclusive relationship for about the

last three years, by their admission. He spends nearly every night with Ms. Bickham

and every vacation except one in the past three years. Therefore, there is no doubt as

to the relationship.

       {¶13} "While the parties spend a great deal of time together, they do have

separate residences. In a recent Fifth District case, Shippy v. Shippy (10/21/10) 10-CA-

16, Unreported, the parties had actually moved furniture and personal items into each

other's homes, however, this was not deemed cohabitation by the trial court and

supported by the Court of Appeals. Therefore, while these parties spend much of their
Fairfield County, Case No. 11-CA-9                                                          5


time together, they do maintain separate residences and do not necessarily live

together.

       {¶14} "However, even if their committed relationship, combined with their regular

use of Ms. Bickham's home is the functional equivalent of living together, there is still

the issue of sharing of expenses and finances on a day-to-day basis.

       {¶15} "***

       {¶16} "Ms. Bickham's explanation for the excess deposits compared with income

is that her parents give her money and that she regularly transfers funds from a savings

account (which started with $6,500) to her checking account and visa versa. Due to the

cost of producing the records, as Ms. Bickham and Mr. Hahn do no keep check

registries and rely exclusively on the bank's records, the Court is without direct evidence

as to Mr. Hahn paying a utility bill, a grocery bill, a car payment, or other day-to-day

expenses for Ms. Bickham (with the exception of her using his credit on a few

occasions). Thus, the Court is left with a rather dubious explanation for the deposits,

but no direct proof of payments.

       {¶17} "***

       {¶18} "The problem is that the standard of proof is providing 'day-to-day'

expenses. In other words, other than a few times over three years where she has used

his credit, there is a lack of proof that he has paid her fuel bill, rent/mortgage, insurance,

or other regular expenses, or visa-versa. There were no witnesses who testified that

the parties came-in and obtained a loan together, talked about a major purchase

together, or any other comingling of their expenses and income. The Court is mindful

that the proof may have been available in Mr. Hahn's records and that obtaining those
Fairfield County, Case No. 11-CA-9                                                       6


records and the cost of reviewing them was prohibitive. But, the Court can only decide

the matter based on the proof presented and that proof creates a suspicion of

commingling, but a suspicion does not meet the movant's burden of proof. Thus, the

Court overrules Mr. Bickham's Motion to Terminate Spousal Support."

       {¶19} We acknowledge the trial court did not find any evidence of shared living

expenses as a basis for the denial.       As cited supra, Ohio courts on the issue of

cohabitation have set out factors to be considered, but have not held that all of the

factors had to be resolved in the movant's favor.

       {¶20} Appellee and Mr. Hahn have virtually lived together since at least the

summer of 2007 (27 days out of 30 days a month). T. at 11, 124-125. Mr. Hahn

maintains some personal items at appellee's home, but has a home at Buckeye Lake

which is generally used in the good weather months only. T. at 11-12, 126, 163-164.

       {¶21} We therefore conclude the first two factors, an actual living together of a

sustained duration, are clearly resolved in favor of cohabitation.

       {¶22} 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
Fairfield County, Case No. 11-CA-9                                                   7


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.

       {¶23} 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.

       {¶24} 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.

       {¶25} 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.
Fairfield County, Case No. 11-CA-9                                               8


      {¶26} The sole assignment of error is granted.

      {¶27} The judgment of the Court of Common Pleas of Fairfield County, Ohio,

Domestic Relations Division is hereby reversed, and the matter is remanded to said

court to determine a cohabitation date for the termination of spousal support.

By Farmer, J.

Hoffman, P.J. and

Edwards, J. concur.




                                            _s/ Sheila G. Farmer__________________




                                            _s/ William B. Hoffman________________




                                            _s/ Julie A. Edwards__________________

                                                              JUDGES

SGF/sg 721
Fairfield County, Case No. 11-CA-9                                                  9


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



KATHY S. BICKHAM                            :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
WILLIAM H. BICKHAM                          :
                                            :
       Defendant-Appellant                  :         CASE NO. 11-CA-9




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio, Domestic Relations

Division is reversed, and the matter is remanded to said court to determine a

cohabitation date for the termination of spousal support. Costs to appellee.




                                            s/ Sheila G. Farmer__________________




                                            _s/ William B. Hoffman________________




                                            _s/ Julie A. Edwards__________________

                                                             JUDGES
Fairfield County, Case No. 11-CA-9   10
