Kemp v. Kemp

2021 Ohio 2419

• Court: Ohio Court of Appeals
• Decided: July 14, 2021
• Docket: 20 CAF 11 0050
• Status: Published

Opinion

[Cite as Kemp v. Kemp, 2021-Ohio-2419.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: ANGELA R. KEMP : Hon. W Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 20 CAF 11 0050 ALLEN DALE KEMP : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Delaware County Court of Common Pleas, Domestic Relations Division, Case No. 16 DRA 08 0387

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 14, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANGELA R. KEMP PRO SE ROBERT C. HETTERSCHEIDT 2469 Parklawn Drive 580 South High Street Lewis Center, OH 43935 Columbus, OH 43215 [Cite as Kemp v. Kemp, 2021-Ohio-2419.]

Gwin, P.J.,

{¶1} Appellant appeals the October 22, 2020 judgment entry of the Delaware

County Court of Common Pleas, Domestic Relations Division, denying his motion to

terminate spousal support.

Facts & Procedural History

{¶2} In 2016, appellee Angela Kemp filed a complaint for divorce against her

then husband, appellant Allen Kemp. Appellant and appellee share one adopted child,

B.K. The trial court issued a final judgment entry on August 7, 2018. The trial court

awarded appellee spousal support in the amount of $250.00 per month. The final

judgment entry provides the spousal support, “shall terminate sooner than the above-

stated date upon Plaintiff’s or the Defendant’s death or in the event of the following: the

cohabitation of the person receiving support in a relationship comparable to marriage.”

{¶3} Appellant filed a motion to terminate spousal support on April 29, 2019. The

trial court denied the motion on January 3, 2020.

{¶4} Appellant filed a second motion to terminate spousal support on April 13,

2020, arguing that spousal support should be terminated because appellee is residing

with Kenneth Chick (“Chick”) at his residence in a relationship comparable to marriage.

{¶5} The trial court held a hearing on appellant’s motion on September 2, 2020.

{¶6} Appellee testified that she broke her ankle on February 9 and is still

recovering from surgery she had in March. Appellee testified that she currently resides

at 2469 Parklawn, the former marital home, but she stayed at her son’s and her

boyfriend’s homes while she was recovering from surgery. Appellee stated she has spent

approximately fifty percent of her time at Chick’s home during the past three months Delaware County, Case No. 20 CAF 11 0050 3

because of her ankle surgery. Appellee stated she needed constant assistance because

she fell three times and had a blood clot.

{¶7} When counsel for appellant inquired about the post office holding mail for

appellee, she stated she has requested her mail be held at various times during the past

two years because appellant has gone into her mailbox at the Parklawn address and

taken items out of it. Appellee did not know why certified mail sent to the Parklawn

address was returned as unclaimed/vacant. Appellant stated he sent mail to Chick’s

address for appellee and it has not been returned.

{¶8} Appellee testified that she has been paying her bills for the past few months,

and her boyfriend has not contributed to her support. Appellee pays her bills from the

money she receives for spousal support and child support. Appellee stated that, despite

her surgery and ankle injury, she pays her own bills, including the bills for the Parklawn

property. While she is at Chick’s house, Chick pays his own bills. Appellee provides food

for herself and her daughter out of the child support money.

{¶9} After counsel for appellant inquired of appellee, the court asked appellee

several questions. The court asked if the utilities were still on at the Parklawn property

and whether the bills were up-to-date. Appellee testified the gas, electric, water, and

sewer at the Parklawn property are all still on and working. Appellee is on payment plans

for the electric, gas, and water bills. She is approximately one month behind on each bill.

After the court inquired of appellee, the trial judge asked counsel for appellant if he had

any further questions. Counsel responded, “no, your honor.”

{¶10} Tina Adams (“Adams”) is appellant’s older daughter. Adams placed an app

on B.K.’s phone so that Adams could see where B.K. was at all times. Appellant asked Delaware County, Case No. 20 CAF 11 0050 4

Adams to track B.K. for approximately two or three months. Adams would track B.K.

during the day, and would also set an alarm to wake her up every morning at 2:00 or 3:00

a.m. to check her location. In the months that Adams “pinged” B.K.’s location, she was

at Chick’s home.

{¶11} On cross-examination, Adams stated she no longer has the app to locate

B.K. on her phone. She took it off her phone after “we had a good three months’ worth”

of “pings.” Adams had “pings” from the end of April, all of May, and all of June.

{¶12} Appellant testified that he drives past the Parklawn house every three or

four weeks to see if the yard is being taken care of. He has never seen any notices on

the door for unpaid utilities. He has driven by the Parklawn property and seen no one,

but has driven by and has seen appellee, B.K., and appellee’s grandchildren.

{¶13} The trial court issued a judgment entry on October 22, 2020. The trial court

found as follows: the property at Parklawn used by appellee as her residence address is

in the foreclosure process, but there has been no notice of eviction at the time of the

hearing; appellant testified he has attempted to send mail and a process server to the

Parklawn address and mail has been returned as vacant, unable to forward, and the

process server has been unable to serve the address; appellant testified he sent mail to

appellee at the Red Bank Road address and it has not been returned; appellant testified

he has driven past the Parklawn property and saw no one but has driven by and seen

appellee, B.K., and appellee’s grandchildren at the property; appellant’s adult daughter

put a phone app on the parties’ minor child’s phone to track her location, and during a

two-month period of time, including the early morning hours, she did not get any pings at

the Parklawn property and did locate her at the Red Bank property; appellee testified she Delaware County, Case No. 20 CAF 11 0050 5

has been at the Red Bank Road property because she needed help due to breaking her

ankle; appellee testified she spends fifty percent of her time at the Red Bank Road

address, but she does not contribute to paying any bills at this address and she pays the

bills at the Parklawn address when she can pay them; and appellee testified that all

utilities at the Parklawn property are on and she still lives there.

{¶14} The trial court denied appellant’s motion, specifically noting no evidence

was presented that appellee shares any day-to-day incidental expenses, or any

expenses, with her boyfriend at the Red Bank Road property.

{¶15} Appellant appeals the October 22, 2020 judgment entry of the Delaware

County Court of Common Pleas, Domestic Relations Division, and assigns the following

as error:

{¶16} “I. THE TRIAL COURT ERRED WHEN IT OVERRULED THE

APPELLANT’S MOTION TO TERMINATE SPOUSAL SUPPORT.”

{¶17} Appellant argues the trial court abused its discretion in denying appellant’s

motion to terminate spousal support.

{¶18} A review of a trial court’s decision relative to spousal support is governed

by an abuse of discretion standard. Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d

1293 (1981). We cannot substitute our judgment for that of the trial court unless, when

considering the totality of the circumstances, the trial court abused its discretion.

Holcomb v. Holcomb, 44 Ohio St.3d 128, 541 N.E.2d 597 (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). Delaware County, Case No. 20 CAF 11 0050 6

{¶19} Furthermore, as an appellate court, we are not the trier of fact. Our role is

to determine whether there is 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). Issues relating to the credibility of witnesses and the weight to be given the

evidence are primarily for the trier of fact. “The underlying rationale of giving deference

to the findings of the trial court rests with the knowledge that the trial judge is best able to

view the witnesses and observe their demeanor, gestures, and voice inflections, and use

these observations in weighing the credibility of the proferred testimony.” Seasons Coal

Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). A trial court may believe

all, part, or none of the testimony of any witness who appears before it. Rogers v. Hill,

124 Ohio App.3d 468, 706 N.E.2d 438 (4th Dist. 1998).

{¶20} We have previously stated that “whether or not a particular living

arrangement rises to the level” of cohabitation is a factual question to be initially

determined by the trial court. Yarnell v. Yarnell, 5th Dist. Delaware No. 05CAF0064,

2006-Ohio-3929. A finding as to cohabitation that is supported by some competent and

credible evidence will not be reversed by a reviewing court as against the manifest weight

of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d

578 (1978).

{¶21} As the moving party seeking to terminate spousal support, appellant has

the burden of establishing cohabitation. Dickerson v. Dickerson, 87 Ohio App.3d 848,

623 N.E.2d 237 (6th Dist. Lucas 1993); Thurston v. Thurston, 10th Dist. Franklin No.

99AP-741, 2000 WL 423987. Delaware County, Case No. 20 CAF 11 0050 7

{¶22} In determining whether cohabitation exists, we note the holding in Moell v.

Moell, 98 Ohio App.3d 748, 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. 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 Brithelmer v. Birthelmer (July 15, 1983), Lucas App. No. L83-046,

1983 WL 6869.

{¶23} However, this Court has cautioned against a strict application of the Moell

test and found that “the overarching principle in such cases is that cohabitation

contemplates a relationship that approximates, or is the functional equivalent of, a

marriage.” Sage v. Gallagher, 5th Dist. Richland No. 13 CA 64, 2014-Ohio-1598.

{¶24} Appellant specifically contends that while the trial court utilized the correct

legal test to determine cohabitation, the trial court wrongly applied the facts to the test in

this case. We disagree and find there was competent and credible evidence to support

the trial court’s decision.

{¶25} Appellee testified she currently resides at the Parklawn address, and the

reason she was staying at Chick’s and her son’s house approximately fifty percent of the

time was because she was recovering from ankle surgery, as she had fallen, had a blood Delaware County, Case No. 20 CAF 11 0050 8

clot, and otherwise needed constant assistance during her recovery. Appellee stated she

has been paying her bills and Chick has not contributed to her support. Appellee testified

Chick pays all his own bills, and she pays for food for her and her daughter while they are

at his house from child support funds. Appellee testified the gas, electric, water, and

sewer at the Parklawn property are on and working, and she is on a payment plan for

most of the utilities. Appellant stated that he drove past the Parklawn house every three

or four weeks and has never seen any notices on the door for unpaid utilities.

{¶26} Adams testified about “pings” on B.K.’s phone for a period of approximately

two months. Her testimony focused only on these “pings,” and she offered no evidence

as to any sharing of expenses or other evidence about whether appellee’s relationship

with Chick was the functional equivalent of a marriage. Appellant has driven by the

Parklawn property and sometimes sees no one, but has driven by and seen appellee,

B.K, and appellee’s grandchildren.

{¶27} Appellee has presented unrebutted testimony that she and Chick are not

sharing expenses with regard to financing and day-to-day incidental expenses; and

unrebutted testimony that she is paying the utilities at the Parklawn property such that

she and Chick each take care of the expenses and utilities for each of their respective

residences. At most, appellant provided evidence that appellee lived with Chick for fewer

than three months, arguably not a sustained duration of time. See Hartman v. Hartman,

9th Dist. Summit No. 22303, 2005-Ohio-4663. Under these circumstances, there was

sufficient evidence to allow the trier of fact to conclude appellee was not cohabitating with

Chick in a marital-type relationship. As detailed above, the trial court, as the trier of fact,

is in the best position to assess the credibility of the witnesses. Delaware County, Case No. 20 CAF 11 0050 9

{¶28} Appellant contends the trial court’s questioning impermissibly assisted

appellee in proving her case with questions about appellee’s expenses at the Parklawn

home. However, as noted above, the burden of proof in a motion to modify or terminate

spousal support is on the movant; appellee did not have the burden to prove any of the

factors listed above.

{¶29} Evidence Rule 614(B) specifically provides that the trial court may

interrogate witnesses in an impartial manner. Because Evidence Rule 614(B) permits the

trial court discretion to decide whether or not to question a witness, appellate courts must

review the trial court’s questioning under an abuse of discretion standard. Brothers v.

Morrone-O’Keefe Dev. Co. LLC, 10th Dist. Franklin No. 05AP-161, 2006-Ohio-1160.

Further, a trial court enjoys even greater freedom in questioning witnesses during a bench

trial, because the court cannot prejudicially influence a jury with its questions or

demeanor. Id.

{¶30} Upon our review of the record, we find the lower court questioned appellee

in a fair and impartial manner and we find no evidence of bias, prejudice, or prodding on

the part of the trial court. At the point in the hearing when the trial court questioned

appellee, appellee had already testified that she and Chick were not sharing expenses,

Chick did not contribute to her financial support, and she was paying the bills for the

Parklawn property. The questions asked by the trial court merely asked for more specific

details on the bills regarding the Parklawn property.

{¶31} Additionally, after the trial court inquired of appellee, she gave counsel for

appellant an opportunity to ask any further questions; he declined to do so. Delaware County, Case No. 20 CAF 11 0050 10

{¶32} We find the trial court did not abuse its discretion in in denying appellant’s

motion to terminate spousal support. Accordingly, appellant’s assignment of error is

overruled.

{¶33} The October 22, 2020 judgment entry of the Delaware County Court of

Common Pleas, Domestic Relations Division, is affirmed.

By Gwin, P.J.,

Delaney, J., and

Wise, Earle, J., concur