Laveer v. Laveer

2013 Ohio 3294

• Court: Ohio Court of Appeals
• Decided: July 25, 2013
• Docket: 12 CAF 12 0086
• Status: Published

Opinion

[Cite as Laveer v. Laveer, 2013-Ohio-3294.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

SUSAN L. LAVEER : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney : Hon. Craig R. Baldwin, J. : -vs- : : RICHARD L. LAVEER : Case No. 12 CAF 12 0086 : : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Domestic Relations Divison Case No. 09-DRA- 11-535

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 25, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

EDWARD F. WHIPPS CHRISTOPHER L. TROLINGER JESSICA M. WOOD CHELSEA L. BERGER Edward F. Whipps and Associates Farlow & Associates, LLC 500 South Front Street, Ste 860 270 Bradenton Ave., Ste 100 Columbus, OH 43215 Columbus, OH 43215 Delaware County, Case No. 12 CAF 12 0086 2

Baldwin, J.

{¶1} Defendant-appellant Richard LaVeer appeals from the November 6, 2012

Judgment Entry of the Delaware County Court of Common Pleas, Domestic Relations

Division.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant Richard LaVeer and appellee Susan LaVeer were married on

April 24, 1993. Two children were born as issue of such marriage, namely, Chase (DOB

9/20/95) and Brooke (DOB 10/9/98). Brooke is a Castle child and has significant

medical issues. She requires a gastronomy tube, is wheelchair bound and requires

cauterization and has seizures, among other medical issues.

{¶3} On November 6, 2009, appellee filed a complaint for divorce against

appellant. Appellant filed an answer and counterclaim on December 11, 2009. A trial

before a Magistrate was held in July of 2010 and a Magistrate’s Decision was issued on

August 2, 2010. The Magistrate, in his Decision, found that appellant had earned

$244,293.00 in 2005, $377,099.00 in 2006, $346,867.00 in 2007, $243,372.00 in 2008

and $293,561.00 in 2009 while he was employed by American Family Insurance and

that he was currently receiving unemployment compensation of $503.00 a week.

Neither party filed objections to the same.

{¶4} Pursuant to a Judgment Entry Decree of Divorce filed on September 14,

2010, the trial court found that there was no error of law or other defect on the face of

the Magistrate’s Decision. The trial court designated appellee residential parent and

legal custodian of the children and ordered appellant to pay the entire cost of Chase’s

extracurricular activities associated with school. In addition, the trial court ordered that Delaware County, Case No. 12 CAF 12 0086 3

the parties’ marital home be sold and that, effective, August 1, 2010, appellant pay the

following in lieu of spousal support: (1) first mortgage, taxes and insurance, (2) second

mortgage, (3) electric, (4) gas, (5) water, (6) lawn care, (7) home maintenance, (8) car

insurance/umbrella, (9) car maintenance and (10) telephone cable internet. These

items totaled $4,234.60. The trial court, in the Decree, ordered that upon the sale of the

residence, spousal support would be $2,000.00 a month subject to review upon

appellant’s “return to employment”. The trial court ordered, in part, that spousal support

would terminate if appellee cohabitated with a non-related adult male and retained

jurisdiction over spousal support. A Nunc Pro Tunc Judgment Entry Decree of Divorce

was filed on November 19, 2010 to correct the amount of child support that appellant

was ordered to pay. No appeal was taken.

{¶5} On March 25, 2011, appellant filed a Combined Motion Pursuant to Civil

Rule 60(B) for Relief from Judgment and Motion to Modify Spousal Support and Terms

as Related to Obligations of the Parties Regarding the Real Estate. Appellant, in his

motion, alleged that appellee was cohabitating with an unrelated male. Appellant

specifically alleged that appellee had been residing in the marital home with Marc Carr

since September of 2010 and that she had falsely testified at the time of the final

hearing that she was not in a relationship with anyone. Appellant also argued that the

second mortgage’s balloon payment of $57,133.93 became due and payable on April 1,

2011, that he did not have the financial ability to pay the same and that the only source

of funds was his retirement account, which was split equally with appellee. Appellant

also argued that he had been unemployed for a prolonged period of time, was

employed at a substantially lower salary and had become unemployed again. Delaware County, Case No. 12 CAF 12 0086 4

{¶6} Appellee, on June 7, 2011, filed a Motion for Order to Show Cause.

Appellee, in her motion, alleged that appellant had failed to reimburse her for amounts

she paid for car insurance, car maintenance and home repairs and that these added up

to $1,991.43. She further alleged that appellant failed to reimburse her $300.00 for

Chase’s football fees. Appellee argued that appellant owed her a total of $2,291.43 for

all of these expenses.

{¶7} A hearing before a Magistrate commenced on August 19, 2011. At the

hearing, appellant testified that he became employed on May 1, 2011 by Allstate

Insurance. Since May of 2011, he had earned $11,313.11 in commissions, but had to

pay a one time $8,000.00 training fee. Appellant was working as an independent

contractor on a 100% commission basis. Appellant previously had been employed from

November 15, 2010 through January 24, 2011 by Wells Fargo at a base salary of

$28.85 per hour, which amounts to $60,000.00 a year based on a 40 hour work week,

plus commissions. However, his pay stubs show an average of $51,345.00. During the

period of time from January 24, 2011 until May 1, 2011, he was unemployed. Appellant

also testified that the marital home was going to be sold for $427,500.00 and that he

paid off the second mortgage on the house by withdrawing money from his IRA. He

testified that he negotiated a payoff of $46,000.00.

{¶8} Appellant testified that his 2010 tax return showed that he made

$53,844.00 between his payment from Wells Fargo for November and December and

unemployment. In addition, he had a $40,000.00 withdrawal from his IRA. Appellant’s

adjusted gross income, as shown on his 2010 tax return, was $103,855.00. Appellant

testified that between the upkeep of his own residence and the martial residence, his Delaware County, Case No. 12 CAF 12 0086 5

total outflow every month was approximately $8,000.00 month and that he was about

$7,000.00 in the hole each month. He testified that he made up the difference by

withdrawing money from his IRA.

{¶9} Appellant was questioned about Marc Carr, who he alleged was

cohabitating with appellee. He testified that Carr was a friend of theirs and that he

became suspicious of the relationship between Carr and appellee in the fall of 2008.

Appellant indicated that he had discovered phone calls between the two in the spring of

2009. According to appellant, the relationship between Carr and appellee was going on

while the divorce was pending, but was not out in the open. When asked, he testified

that the relationship became in the open right after the divorce and that he saw Carr at

the house many times. Appellant testified that he heard the two having sex when he

went over to the former marital home to get a coat and that Carr was often present at

the house when appellant would come by to visit with the children.

{¶10} Appellant testified that he believed that Carr had moved into the house

and was staying overnight. He indicated that Carr kept personal belongings there

including shoes, clothing, a toothbrush, hair putty and a shaving kit. According to

appellant, Carr’s truck was constantly parked outside appellee's residence and was in

the driveway many days in a row. He further testified that while Carr was occupying the

former marital house, he was paying the utilities and the mortgage. Appellant further

testified that appellee would sometimes take Carr to work and that Chase told him that

Carr lived there. Appellant was unaware if Carr owned his own residence and testified

that he had seen Carr at the new residence that appellee had purchased and closed on

in May or June of 2011. Delaware County, Case No. 12 CAF 12 0086 6

{¶11} Appellant testified that Brooke received 54 hours a week of nursing care

and also went to school from 9:00 a.m. to 3:00 p.m. during the school year. She is

taken to school either on the school bus or by appellee. Appellant testified that appellee

never went to college and had only worked early on during their marriage. Since Brooke

was born, appellee has not worked, although appellant testified that he believed that

she had the time and ability to do so.

{¶12} On cross-examination, appellant testified that subsequent to the Divorce

Decree, appellee provided him with a bill for $300.00 so that their son could play

football. Appellant testified that appellee paid such bill prior to the Magistrate’s Decision,

that he knew that appellee paid such bill on August 3, 2010 and that the trial court’s

decision was made effective on August 1, 2010. Appellant claimed that appellee never

gave him the $300.00 bill until she filed her motion and that he was not going to give

appellee the money because she was cohabitating. He also admitted that appellee had

submitted to him $1,719.79 in car insurance and maintenance bills and that he had not

paid any of them. According to appellant, appellee took the vehicle to a shop owned by

a close friend of Carr’s. Appellant claimed that the van’s tires were replaced

unnecessarily, but agreed that he had never mentioned the tires until the time of the

hearing and did not investigate whether or not the tires were needed. Appellant agreed

that he refused to pay a $271.64 bill for repair to a refrigerator because it was not home

maintenance. Appellant further testified that it was his goal to make $120,000.00 a year

with Allstate and that he had been terminated from his previous job with American

Family Insurance, where he earned between $230,000.00 and over $300,000.00 a year,

for inappropriate business conduct. At the time of the hearing, appellant was looking for Delaware County, Case No. 12 CAF 12 0086 7

a new job. Appellant also testified that the week after he left Wells Fargo, he traveled to

Dallas, Texas to go to the Super Bowl, but did not attend the game.

{¶13} Appellant agreed that he had paid a private investigative firm to conduct

surveillance of appellee to determine if she was cohabitating with Marc Carr. He

testified that there were times when they found Carr’s vehicle at appellee's residence

and times when they did not. He admitted that there was one time when they found

Car’s vehicle at Carr’s home and times when he did not see Carr’s truck when he drove

by appellee’s home.

{¶14} Jeanne Kanable, the private investigator hired by appellant, testified. Her

affidavit, which was Exhibit 37, was a direct summary of what she testified that she had

witnessed. In her affidavit, she stated as follows:

1. The white 2006 Dodge Ram Extended Cab Pick-up Truck bearing Ohio License

plate [EOF 4960] registered to Marc A. Carr was observed at the former marital

residence of 10203 Sage Creek Drive, Galena, Ohio 43021 on the following

dates: Thursday, February 3, 2011 at 7:23 a.m.; Saturday, February 5, 2011 at

8:47 a.m.; Tuesday, February 15, 2011 at 8:00 a.m.; Wednesday, February 16,

2011 at 7:40 a.m.; Thursday February 17, 2011 at 6:18 a.m. & Sunday, February

20, 2011 at 6:12 p.m.

2. Susan LaVeer was observed returning to the former marital residence on

Sunday, February 6, 2011 in Marc Carr’s Dodge Ram Pick-up Truck at 7:36 a.m.;

Susan LaVeer was observed driving Marc Carr in his Dodge Ram to his place of

employment at JPMorgan Chase Bank at 1111 Polaris Parkway, Columbus, Ohio

43035 on Monday, February 14, 2011 at 6:53 p.m.; Susan Laveer was observed Delaware County, Case No. 12 CAF 12 0086 8

picking up Marc Carr at his place of employment on Tuesday, February 15, 2011

at (sic) returning to the former marital residence with Marc Carr at 7:34 a.m.;

Susan LaVeer was observed driving Marc Carr in his Dodge Ram to his place of

employment on Tuesday, February 15, 2011 at 6:38 p.m.; Susan LaVeer was

observed picking up Marc Carr at his place of employment in his Dodge Ram on

Wednesday, February 16, 2011 at 7:15 a.m. and driving back to the former marital

residence.

{¶15} She testified that she conducted her surveillance from January 18, 2011

through February 20th of 2011.

{¶16} On cross-examination, Kanable testified that she did not see Carr or his

truck anywhere in the area on January 18, 2011 and that there was no evidence that he

was living with appellee on such date. The next day, she located his truck at his address

and it appeared that the truck had been parked there all night. On February 3, 2011,

she also located his truck at his address on Talia Court and also found appellee alone

on such date. Kanable agreed that on February 3, 2011, she found no evidence that

they were living together. On February 4, 2011, Carr’s truck was at his address on Talia

Court most of the day and, on February 5, 2011, Kanable could not find his truck either

at the Talia Court address or at appellee’s house. She further testified that early on

February 6th, she did not find any evidence that Carr was at appellee's house, but saw

appellee returning to the former marital residence at 7:36 a.m. driving his truck. She did

not see Carr.

{¶17} On February 14, 2011, Kanable saw appellee driving Carr’s truck to

Chase Bank with Carr in the passenger seat. Kanable testified that appellee was driving Delaware County, Case No. 12 CAF 12 0086 9

him to work. On February 15, 2011, she saw appellee driving the truck alone and, at

6:16 p.m., saw that there was no truck at appellee’s house. Carr’s truck was at his

place of work. Later on February 15th, Kanable saw appellee and Carr at a gas station

near Chase Bank. Appellee then dropped Carr back off at Chase Bank and took the

truck home alone. Kanable testified that on February 16, 2011, she saw appellee drive

Carr to work and then leave alone at 7:34 a.m. and drive to her home. She testified that

on February 17, 2011, she saw Carr’s truck leaving Chase Bank. Both Carr and

appellee were in the truck and appellee was driving. According to Kanable, on February

19, 2011, she located Carr’s truck at his address and, on February 20, 2011, she did not

see either appellee or Carr.

{¶18} On redirect, Kanable testified that on February 3, 2011, appellant was at

appellee’s house visiting their children. She testified that she was told that appellee and

Carr left when appellant arrived to visit the children and that they often stayed at Carr’s

house together. She also testified that on February 19, 2011, she located Carr’s truck at

his own address because it was appellant’s weekend with the children and appellant

stayed in the former marital home. According to Kanable, on February 15, 2011, Carr’s

truck was not seen at appellee’s house because appellant was visiting with the children.

She testified that she saw the truck later and that appellee was driving and dropping

Carr off at work. She testified that she concluded that Carr stayed at appellee’s house

except for the days when appellant visited with the children and that when appellant

was visiting, appellee stayed with Carr at Carr’s residence.

{¶19} On recross, Kanable agreed that over a roughly one month period of time,

she only saw appellee and Carr together on two occasions and saw Carr at appellee’s Delaware County, Case No. 12 CAF 12 0086 10

residence one time. She testified that she saw Carr’s truck at his own address on the

weekends and that when she saw the truck at appellee’s house during the week,

appellee was driving.

{¶20} Appellee testified as if on cross-examination. She testified that Carr was

her boyfriend and that she had been seeing him since approximately the end of 2010

after the divorce. She denied seeing, dating or having sexual relations with Carr prior to

the divorce and testified that during that time, he was just a friend. She testified that

Carr’s shoes were in her garage and that his toothbrush, body spray, hair putty and

clothing were in her house. Appellee also testified that Carr’s son’s bikes were in her

garage and that Carr’s tool chest was also there because he was helping her fix up her

new house. Appellee indicated that she did not earn any money in 2010 and did not

receive any spousal support during 2010. She stated that she had cashed out her

retirement account.

{¶21} Appellee testified that she had moved into her new home three days

before the hearing and that Carr lived on Talia Court with a friend rent-free by helping

his friend out. She testified that Carr generally worked 12 hour nights from 7:00 p.m. to

7:00 a.m. and that when she was living in the marital home, Carr slept at her house

during the day and sometimes at night. When asked how many days he slept over

during a week, she indicated that there were weeks when he was not there at all and

times he was there at least three nights or sometimes four. Sometimes Carr was there

during the day and not at night. Appellee testified that he had been over more recently

because he was helping her with her new home. She indicated that he probably was

staying over five days a week, but just until she got the toilet and sink in her house. Delaware County, Case No. 12 CAF 12 0086 11

{¶22} Appellee testified that she occasionally drove Carr to work and that she

was not paying him to work on her new house or for any of the renovations. According

to appellee, Carr paid her cell phone bill because he got a discount through Chase and

did not buy groceries or eat over very often at her house. At times, Carr’s children had

stayed at the former marital home. Appellee further testified that Carr paid for food

when they were dining out about half the time and that she sometimes stayed at Carr’s

residence when appellant was with the children.

{¶23} Appellee also testified that appellant, after the divorce, had been paying

her household expenses in lieu of support. She stated that he was not responsible for

her health insurance and that she was paying for food for herself and the children and

gas for the van. Appellant, according to appellee, refused to pay for her car insurance

and van repairs and also for repairs to the refrigerator. She stated that Carr was not

living with her and had his own place and that chances were that he had never spent a

full week with her. She further testified that he had lost his ability to drive due to an OVI

and that she sometimes drove him to work. Appellee indicated that at the present time,

she drove Carr to work the majority of the time because he was helping her fix up her

house. She occasionally drove Carr’s truck. Appellee further testified that a lot of Carr’s

personal belongings, mainly clothing, were at her house because he had helped her

move and was helping her with the house. Carr and appellee do not have a joint

account and she testified that he had not paid her any money or transferred any money

to her.

{¶24} At the hearing, Carr testified that he had stayed overnight with appellee at

both her new and previous residences. He testified that he worked nights and usually Delaware County, Case No. 12 CAF 12 0086 12

slept during the day and that the number of days he slept over at appellee’s residence

varied. Carr indicated that he did not become romantically involved with appellee until

after her divorce and that prior to that time, he was friends with the parties and was

married himself. According to Carr, he spent a couple of days on average at appellee’s

residence and did not spend more than 50% of his time there. He stated that he paid

her cell phone bill and for dinners when they went out about half the time and that he

had stayed at a hotel with appellee a couple of times. Carr, when asked, stated that

appellee did not pay anything for him or pay him for working on her new residence and

that he had not purchased any items for her house. He testified that he stayed at his

apartment rent-free in exchange for helping his roommate with his general contracting

business. Carr stated that he did not have any bank or other accounts with appellee

and did not have any credit cards jointly with her. While he has clothing at appellee’s

house, he testified that he generally takes the clothing home with him when he leaves

and that he had not spent more than two or three days with appellee other than the last

week or so when he was helping her move. According to Carr, nurses who take care of

Brooke had called off and appellee had to handle the moving and taking care of Brooke

at the same time.

{¶25} On redirect, Carr admitted that he left his toothbrush and hair gel at

appellee’s house. He testified that he paid for airline tickets when appellee’s family

came from Arizona, but that he was paid back.

{¶26} Appellee also testified on direct examination, She testified that Brooke’s

nurse had called off and did not show up for a week and that she was either taking

Brooke to the doctor, having to fill her prescriptions, or talking about her surgeries with Delaware County, Case No. 12 CAF 12 0086 13

doctors. Appellee denied that Carr lived with her and agreed that, on average, he spent

two days a week with her but sometimes less. She testified that appellant had not paid

any of the bills to date, including the bill for new tires on her van. She stated that she did

not have any bank accounts or credit cards with Carr and, with the exception of her cell

phone bill, did not receive any financial assistance from him. She also testified that Carr

received his mail at either his Talia Court address or his new address and never at her

home. She stated that she was not in a relationship with anyone at the time of the

divorce.

{¶27} The Magistrate, pursuant to a Decision filed on October 26, 2011,

recommended that appellant’s Civil Rule 60(B) motion be dismissed, that the motion to

terminate spousal support be denied, and that appellant be found to owe appellee

$3,901.73 for non-payment of car insurance, auto maintenance, house repairs and

Chases’s extracurricular activities. Appellant filed objections to the same. Pursuant to

a Judgment Entry filed on November 6, 2012, the trial court, with the exception of an

objection relating to child support, overruled the objections. The trial court dismissed

appellant’s 60(B) motion, denied appellant’s motion to terminate spousal support and

held that appellant owed appellee $3,901.73 for non-payment of car insurance, auto

maintenance, house repairs and Chases’s extracurricular expenses.

{¶28} Appellant now raises the following assignments of error on appeal:

{¶29} THE TRIAL COURT ERRED IN DETERMINING THAT THERE WAS NO

FINANICIAL ASSISTANCE TO ESTABLISH COHABITATION.

{¶30} THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

TERMINATE SPOUSAL SUPPORT ON THE GROUNDS OF COHABITATION. Delaware County, Case No. 12 CAF 12 0086 14

{¶31} BASED ON THE TOTALITY OF THE CIRCUMSTANCES THE TRIAL

COURT’S FAILURE TO MODIFY SPOUSAL SUPPORT WAS AN ABUSE OF

DISCRETION.

{¶32} THE TRIAL COURT’S FAILURE TO MODIFY THE INTERIM

OBLIGATIONS OF THE PARTIES AS THEY RELATE TO THE REAL ESTATE WAS

AN ABUSE OF DISCRETION.

{¶33} THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING

DEFENDANT-APPELLANT TO PAY PLAINTIFF-APPELLEE $3,901.73.

{¶34} THE TRIAL COURT IN RULING ON OBJECTIONS ABUSED ITS

DISCRETION BY FAILING TO CONDUCT A HEARING PRIOR TO DENYING AND

DISMISSING DEFENDANT-APPELLANT’S MOTIONS.

I, II

{¶35} Appellant, in his first assignment of error, argues that the trial court erred

in determining that there was no financial assistance to establish cohabitation. In his

second assignment of error, appellant argues that the trial court abused its discretion in

failing to terminate spousal support on the grounds of cohabitation.

{¶36} 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, 2000 WL 431362, 1 (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): Delaware County, Case No. 12 CAF 12 0086 15

{¶37} “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 2391. 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. “

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

set forth two primary factors to consider in determining cohabitation:

{¶39} “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, 79 Ohio St.3d 459, 465, 683 N.E.2d 1126 (1997).

1 The complete citation is Dickerson v. Dickerson, 87 Ohio App.3d 848, 623 N.E.2d 237 (6th Dist. 1993). Delaware County, Case No. 12 CAF 12 0086 16

{¶40} 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. We stated that “cohabitation” is a factual question to be initially

determined by the trial court. Yarnell, supra, at paragraph 43, 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).

{¶41} In the case sub judice, we find that the trial court did not err in determining

that there was no financial assistance to establish cohabitation and did not abuse its

discretion in failing to terminate spousal support on the grounds of cohabitation. The

trial court, as trier of fact, was in the best position to assess the credibility of the

witnesses at the hearing. There was no definitive evidence that appellee and Carr were

living together for a sustained or other duration. As is stated above, Kanable, the private Delaware County, Case No. 12 CAF 12 0086 17

investigator, agreed that over a roughly one month period of time, she only saw

appellee and Carr together on two occasions and saw Carr at appellee’s residence one

time. Both appellee and Carr did not deny that Carr sometimes spent the night at

appellee’s house and that, during her recent move, had spent even more time there in

order to assist appellee with remodeling.

{¶42} Moreover, we concur with the trial curt that there was no evidence of

financial assistance to establish cohabitation. Carr testified that he did not purchase any

items for appellee’s new home. Both also testified that Carr maintained a separate

residence and that Carr did not receive mail at appellee’s home. Moreover, there is a

lack of evidence that appellee and Carr shared expenses with respect to financing and

day-to-day incidental expenses. Appellee testified that she did not pay any of Carr’s

bills. The only bill that Carr pays for appellee is her cell phone bill. He testified that he

did so because he was able to add appellee to his cell phone plan for $10.00 a month,

saving appellee considerable money. Both testified that they did not have any joint

bank accounts, credit accounts or other accounts, with the exception of the cell phone

account, and that they took turns paying for meals when dining out.

{¶43} Based on the foregoing, appellant’s first and second assignments of error

are overruled.

III

{¶44} Appellant, in his third assignment of error, argues that the trial court

abused its discretion in failing to modify spousal support. We disagree.

{¶45} The modification of spousal support lies in the trial court's sound

discretion. Booth v. Booth , 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). An abuse of Delaware County, Case No. 12 CAF 12 0086 18

discretion indicates that the court's decision was arbitrary, unconscionable, or

unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). “Consequently, when applying this standard, an appellate court is not free to

substitute its judgment for that of the trial judge.” Berk v. Matthews, 53 Ohio St.3d 161,

169, 559 N.E.2d 1301 (1990).

{¶46} “[A] trial court lacks jurisdiction to modify a prior order of spousal support

unless the decree of the court expressly reserved jurisdiction to make the modification

and unless the court finds (1) that a substantial change in circumstances has occurred

and (2) that the change was not contemplated at the time of the original decree.”

Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172, ¶

33.“[A] change in the circumstances of a party includes, but is not limited to, any

increase or involuntary decrease in the party's wages, salary, bonuses, living expenses,

or medical expenses.” R.C. 3105.18(F).

{¶47} R.C. 3105.18 governs spousal support. Subsection (C)(1) states the

following:

{¶48} “In determining whether spousal support is appropriate and reasonable,

and in determining the nature, amount, and terms of payment, and duration of spousal

support, which is payable either in gross or in installments, the court shall consider all of

the following factors:

“(a) The income of the parties, from all sources, including, but not limited

to, income derived from property divided, disbursed, or distributed under

section 3105.171 of the Revised Code;

“(b) The relative earning abilities of the parties; Delaware County, Case No. 12 CAF 12 0086 19

“(c) The ages and the physical, mental, and emotional conditions of the

parties;

“(d) The retirement benefits of the parties;

“(e) The duration of the marriage;

“(f) The extent to which it would be inappropriate for a party, because that

party will be custodian of a minor child of the marriage, to seek

employment outside the home;

“(g) The standard of living of the parties established during the marriage;

“(h) The relative extent of education of the parties;

“(i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties;

“(j) The contribution of each party to the education, training, or earning

ability of the other party, including, but not limited to, any party's

contribution to the acquisition of a professional degree of the other party;

“(k) The time and expense necessary for the spouse who is seeking

spousal support to acquire education, training, or job experience so that the

spouse will be qualified to obtain appropriate employment, provided the

education, training, or job experience, and employment is, in fact, sought;

“(l) The tax consequences, for each party, of an award of spousal support;

“(m) The lost income production capacity of either party that resulted from

that party's marital responsibilities;

“(n) Any other factor that the court expressly finds to be relevant and

equitable.” Delaware County, Case No. 12 CAF 12 0086 20

{¶49} Appellant, in support of his argument, argues that his return to work and

appellee’s cohabitation with Carr were substantial changes in circumstances warranting

a modification of spousal support. He further argues that the marital home was sold with

minor proceeds, forcing him to pay off the second mortgage with his retirement account.

Appellant also contends that the trial court found a substantial change in circumstances

warranting a modification of child support and that appellee had sufficient time to work.

{¶50} As is discussed above, we find that the trial court did not abuse its

discretion in finding no cohabitation. We further find that the trial court did not err in

declining to reduce appellant’s spousal support obligation under the totality of the

circumstances.

{¶51} At the time of the divorce decree, appellant was unemployed. Previously,

between 2005 and 2009, appellant’s salary had ranged from approximately $243,000.00

to over $300,000.00. In 2010, appellant’s employment was terminated for

inappropriate business conduct. In the Decree, the court imputed $150,000.00 in

income to appellant for purposes of computing child support.

{¶52} At the hearing on appellant’s request for modification of child support,

appellant testified that, in November of 2010, he was employed by Wells Fargo at a

base salary of $60,000.00 a year plus commissions. His employment with Wells Fargo

was terminated on January 25, 2011 and, on May 1, 2011, he became employed by

Allstate Life Insurance as an independent contractor. Appellant was paid on commission

and, at the hearing on his motions, testified that his goal was to earn $120,000.00 a

year. Based on such information, the trial court, in computing child support, imputed

income to appellant in the amount of $60,000.00 a year and reduced appellant’s child Delaware County, Case No. 12 CAF 12 0086 21

support obligation from $1,830.92 per month to $730.54 per month, effective May 1,

2011.

{¶53} While appellant argues that because the trial court found that appellant’s

income was now $60,000.00 and reduced child support accordingly, it should have

done so with respect to spousal support, we disagree. Appellant, in the Decree, in lieu

of spousal support, was ordered to pay the two mortgages, the utilities and household

expenses that totaled $4,234.60 a month. Once the marital home was sold, he was

ordered to pay $2,000.00 a month in spousal support. Thus, his obligation has already

been reduced. Moreover, appellant lost his high paying job with American Family

Insurance in 2009 due to inappropriate business conduct. In addition, his 2010 tax

return shows that his adjusted gross income was $103,855.00.

{¶54} Moreover, because of the multitude of problems with Brooke, appellee,

who does not have a college degree and has not worked since Brooke’s birth, is unable

to work. Appellee testified that while she had nursing assistance, the nurses were not

reliable. At the hearing, appellee testified that Brooke’s nurse called off and did not

show up for a week and that Brooke needed surgery to treat her scoliosis. The situation

with Brooke has not changed since the time of the Decree. As noted by appellee, “due

to Brooke’s long list of medical complications and upcoming surgeries,…even if nursing

were reliable and school year round, Brooke’s medical concerns would all too often

require [appellee] to keep Brook (sic) home from school to attend surgery or doctor’s

appointments with her.”

{¶55} Finally, while appellant argues that his spousal support should be modified

because the marital home was sold with minor proceeds remaining and he was forced Delaware County, Case No. 12 CAF 12 0086 22

to pay the home’s second mortgage out of his half of his retirement account, we note

that, in the Decree, appellant was ordered to be responsible for any deficiency after the

marital home was sold. Appellant did not appeal from the Decree.

{¶56} Appellant’s third assignment of error is, therefore, overruled.

IV

{¶57} Appellant, in his fourth assignment of error, argues that the trial court

erred in dismissing his motion from relief from judgment pursuant to Civ.R. 60(B).

{¶58} Civ.R. 60 states:

{¶59} (B) Mistakes; inadvertence; excusable neglect; newly discovered

evidence; fraud; etc.

{¶60} On motion and upon such terms as are just, the court may relieve a party

or his legal representative from a final judgment, order or proceeding for the following

reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered

evidence which by due diligence could not have been discovered in time to move for a

new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment

has been satisfied, released or discharged, or a prior judgment upon which it is based

has been reversed or otherwise vacated, or it is no longer equitable that the judgment

should have prospective application; or (5) any other reason justifying relief from the

judgment. The motion shall be made within a reasonable time, and for reasons (1), (2)

and (3) not more than one year after the judgment, order or proceeding was entered or

taken. A motion under this subdivision (B) does not affect the finality of a judgment or

suspend its operation. Delaware County, Case No. 12 CAF 12 0086 23

{¶61} In order to prevail on a motion for relief from judgment pursuant to Civ.R.

60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement

to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3)

timeliness of the motion. GTE Automatic Electric v. ARC Industries, 47 Ohio St.2d 146,

351 N.E.2d 113 (1976), paragraph two of the syllabus. If any of these three

requirements is not met, the motion must be overruled. Svoboda v. Brunswick, 6 Ohio

St.3d 348, 351, 406, 453 N.E.2d 648 (1983).

{¶62} The decision to grant or deny a Civ.R. 60(B) motion lies within the sound

discretion of the trial court and will not be reversed on appeal absent an abuse of

discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994). The term

“abuse of discretion” implies that the court's attitude was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶63} Appellant, in his motion, alleged that he was entitled to relief from

judgment because appellee committed fraud and misrepresentation on the trial court.

Appellant contends that appellee intended to move Marc Carr into the home at the time

of the parties’ divorce, but failed to disclose this to the trial court. Appellant, in his brief,

notes that at the hearing, he testified that he had phone records showing that there was

phone contact between the two and also that the two “would hang out just with each

other rather than with all of us as couples…” Transcript at 38.

{¶64} However, even if what appellant claims is true, it fails short of

demonstrating that appellee, prior to the divorce, intended to move Carr into the family

home and misled the court. There is no evidence supporting appellant’s assertion and, Delaware County, Case No. 12 CAF 12 0086 24

as is stated above, the trial court did not err in finding that there was no cohabitation. On

such basis, we find that the trial court did not err in dismissing appellant’s 60(B) motion.

The trial court’s decision was not arbitrary, unconscionable or unreasonable.

{¶65} Appellant’s fourth assignment of error is, therefore, overruled.

V

{¶66} Appellant, in his fifth assignment of error, argues that the trial court’s

failure to modify the interim obligations of the parties as they relate to the real estate

was an abuse of discretion.

{¶67} Appellant argues that the trial court should have modified its order

requiring him to pay both mortgages and the utilities in lieu of spousal support because

appellee allowed Marc Carr, her “paramour”, to live with her and thus benefit from

appellant’s payment of the same. Appellant also argues that Carr provided financial

support to appellee. Appellant also argues that he had to pay his responsibilities under

the interim order using his retirement income because of his low income.

{¶68} However, as is stated above, we find that the trial court did not err in

finding that there was no cohabitation between Carr and appellee. Moreover, as noted

by appellee, appellant provided no proof that he used his retirement income. Finally, as

noted by appellee, the Divorce Decree provided that any proceeds from the sale of the

marital residence, after the costs of the sale and the debts were paid, would be paid to

appellant, including any deficiency. Thus appellant directly benefitted financially from

the decrease in the mortgage balance and the maintenance and upkeep of the marital

home.

{¶69} Appellant’s fifth assignment of error is, therefore, overruled. Delaware County, Case No. 12 CAF 12 0086 25

VI

{¶70} Appellant, in his sixth assignment of error, argues that the trial court

abused its discretion in ordering him to pay appellee $3,901.73.

{¶71} Under the terms of the Divorce Decree, appellant was to pay the entire

cost of Chase’s extracurricular activities and, until the marital home was sold, was

ordered to pay all ordinary maintenance and repairs on the premises. Appellant also

was ordered to pay for car maintenance and insurance. On June 7, 2011, appellee filed

a motion for an order to show cause, alleging that appellant had failed to pay $1,719.79

for car insurance and repairs, $271.64 for home repairs, and $300.00 for Chases’

extracurricular fees, for a total of $2,291.43.

{¶72} With respect to the $300.00 extracurricular fees, appellant, at the hearing,

testified that he knew that appellee had paid such bill on August 3, 2010 and that he did

not pay the same because appellee paid the bill “prior to the Magistrate making the

divorce decision.” Transcript at 67. Appellant argues that, therefore, such fees are not

owed by him. Appellant, however, admitted that he knew that such decision was

adopted by the trial court and made effective August 1, 2010, which is prior to the date

such fees were paid. Appellant, therefore, clearly owes appellee the $300.00.

{¶73} Appellant also argues that the repair to the refrigerator is not “home

maintenance” as ordered by the Decree and that, therefore, he is not responsible for the

cost to repair the refrigerator. However, we find that the trial court was free to interpret

its own language in the Decree and that it was not unreasonable to find that the repair

of the refrigerator, which was sold with the house, fell within the definition of home

maintenance. Delaware County, Case No. 12 CAF 12 0086 26

{¶74} With respect to the cost for car repairs, appellant argues that the repair

was not done at a repair ship where the vehicle previously had been serviced and was

completed at a shop owned by a friend of Marc Carr. Appellant claims that the cost of

tires for appellee’s van was excessive and an unnecessary expense.

{¶75} At the hearing, appellant admitted that appellee had submitted $1,719.79

in car insurance and maintenance bills to him and that he had not paid any of them. He

further agreed that had never told appellee that he objected to the tire part of the repair

bill and testified that he believed that the invoice could have been doctored. Appellant,

however, presented no evidence of doctoring. Moreover, appellant indicated that he

had not paid the car insurance because he did not have an insurable interest in the van

even though the court ordered him to pay the same. Appellant also admitted that the

amount owed to appellee had “roughly now grown to about 3,000…” Transcript at 72.

{¶76} Based on the foregoing, appellant’s sixth assignment of error is overruled.

VII

{¶77} Appellant, in his seventh assignment of error, argues that the trial court, in

ruling on his objections to the Magistrate’s Decision, erred by failing to conduct a

hearing prior to denying and dismissing his objections and motions.

{¶78} Pursuant to Civ. R. 54(D)(4), when “ruling on objections, the court shall

undertake an independent review as to the objected matters to ascertain that the

magistrate has properly determined the factual issues and appropriately applied the

law.” There is no record demonstration that the trial court did not undertake such a

review. We presume that the trial court considered all the evidence. The record does

not affirmatively demonstrate that it failed to do so. In fact, in its November 6, 2012 Delaware County, Case No. 12 CAF 12 0086 27

Judgment Entry ruling on appellant’s objections, the trial court found that the Magistrate

had incorrectly calculated child support and modified that amount of child support that

the Magistrate recommended that appellant be ordered to pay.

{¶79} Appellant also maintains that the trial court erred in failing to conduct a

hearing on his objections at which additional evidence would be presented. Appellant,

on February 16, 2012, filed supplemental objections to the Magistrate’s Decision. In his

supplemental objections, he requested that he be permitted to present new evidence

that he asserted was unavailable at the time of the hearing. Appellant alleged, that

since the hearing and prior to the Magistrate’s Decision, Carr had been arrested and

listed appellee’s residence as his residence and that Carr’s ex-wife had come forward

with additional information that Carr and his kids were living with appellee. Appellant

also alleged that Carr’s child’s car had been parked at appellee’s residence constantly.

{¶80} Civ.R 53(D)(4)(d) permits a court to hear additional evidence when the

party objecting to a magistrate's decision could not, with reasonable diligence, have

produced that evidence for consideration by the magistrate. We find that the trial court

did not err in failing to hear additional evidence because appellant failed to show that he

could not, with reasonable diligence, have produced the evidence for consideration by

the Magistrate. Appellant himself, in his request for additional evidence to be

presented, stated that Carr was arrested prior to the Magistrate’s Decision. Moreover,

as noted by appellee, during the hearing in this matter, appellant indicated that he had

spoken with Carr’s ex-wife while the divorce was pending. Appellant could have

subpoenaed her to testify at the hearing.

{¶81} Appellant’s seventh assignment of error is, therefore, overruled. Delaware County, Case No. 12 CAF 12 0086 28

{¶82} Accordingly, the judgment of the Delaware County Court of Common

Pleas, Domestic Relations Division, is affirmed.

By: Baldwin, J.

Gwin, P. J. and

Delaney, J. concur.

HON. CRAIG R. BALDWIN

HON. W. SCOTT GWIN

HON. PATRICIA A. DELANEY

CRB/dr [Cite as Laveer v. Laveer, 2013-Ohio-3294.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

SUSAN L. LAVEER : : Plaintiff - Appellee : : -vs- : JUDGMENT ENTRY : RICHARD L. LAVEER : : Defendant - Appellant : CASE NO. 12 CAF 12 0086

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

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

Division, is affirmed. Costs to appellant.