[Cite as Mengel v. Mengel, 2021-Ohio-4166.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JEFFREY A. MENGEL : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JEANNINE L. MENGEL : Case No. 21 CAF 05 0022 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 16 DR A 11 0546
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 24, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANTHONY M. HEALD JOEL M. SPITZER 125 North Sandusky Street 285 South Liberty Street Delaware, OH 43015 Powell, OH 43065 Delaware County, Case No. 21 CAF 05 0022 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Jeannine L. Mengel, appeals the April 26, 2021
judgment entry of the Court of Common Pleas of Delaware County, Ohio, Domestic
Relations Division, terminating the spousal support obligation of Plaintiff-Appellee, Jeffrey
A. Mengel.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant and appellee were divorced on August 27, 2018. Appellee was
ordered to pay appellant spousal support in the amount of $500 per month for a period of
five years. The spousal support award was subject to termination upon the death of either
party, the marriage of appellant, or appellant's cohabitation with a non-related adult male.
{¶ 3} On May 6, 2020, appellee filed a motion to terminate spousal support,
claiming appellant was cohabitating with a non-related adult male.
{¶ 4} A hearing before a magistrate was held on October 2, 2020. By decision
filed March 2, 2021, the magistrate found based upon the evidence presented, appellant
was cohabitating with her boyfriend. The magistrate granted appellee's motion and
terminated his spousal support obligation effective June 1, 2020.
{¶ 5} Appellant filed objections. By judgment entry filed April 26, 2021, the trial
court overruled the objections, adopted the magistrate's decision, incorporated the
findings of fact and conclusions of law, and terminated appellee's spousal support
obligation.
{¶ 6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows: Delaware County, Case No. 21 CAF 05 0022 3
I
{¶ 7} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
RESULTING WHEN IT TERMINATED APPELLEE'S SPOUSAL SUPPORT
OBLIGATION, AS THE DECISION THAT THE APPELLANT AND HER BOYFRIEND
WERE COHABITATING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 8} In her sole assignment of error, appellant claims the trial court erred and
abused its discretion in terminating appellee's spousal support obligation. We disagree.
{¶ 9} Appellant filed objections to the magistrate's findings regarding her
cohabitation, but did not file a transcript of the magistrate's hearing for the trial court's
review. Civ.R. 53(D)(3)(b)(iii) states the following in pertinent part:
An objection to a factual finding, whether or not specifically
designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be
supported by a transcript of all the evidence submitted to the magistrate
relevant to that finding or an affidavit of that evidence if a transcript is not
available. * * * The objecting party shall file the transcript or affidavit with
the court within thirty days after filing objections unless the court extends
the time in writing for preparation of the transcript or other good cause. If a
party files timely objections prior to the date on which a transcript is
prepared, the party may seek leave of court to supplement the objections. Delaware County, Case No. 21 CAF 05 0022 4
{¶ 10} As this court stated in Doane v. Doane, 5th Dist. Guernsey No. 00CA21,
2001 WL 474267, *3 (May 2, 2001):
Because appellant did not file a transcript of the trial proceedings
with his objections to the magistrate's decision, the factual findings of the
magistrate are deemed established and may not be attacked on appeal.
Accordingly, we review appellant's assignments of error only to analyze
whether the trial court abused its discretion in reaching specific legal
conclusions based upon the established facts.
{¶ 11} When a party objecting to a magistrate's decision has failed to provide the
trial court with a transcript of the evidence by which the trial court could make a finding
independent of the decision, the appellate court is precluded from considering the
transcript of the magistrate's hearing submitted with the appellate record. State ex rel.
Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 654 N.E.2d 1254 (1995).
{¶ 12} Further, pursuant to Civ.R. 53(D)(3)(b)(ii), "[a]n objection to a magistrate's
decision shall be specific and state with particularity all grounds for objection." On March
15, 2021, appellant filed a general objection to the magistrate's decision without alleging
an error committed by the magistrate. Along with the broad objection, appellant
requested an extension to file more specific objections once the transcript was completed.
Pursuant to Civ.R. 53(D)(3)(b)(iii), appellant had until April 15, 2021, to file the transcript.
As noted by the trial court in its April 26, 2021 judgment entry, "[t]o date, neither the Delaware County, Case No. 21 CAF 05 0022 5
transcript, nor a request for additional time to file the transcript, have been filed with this
Court."
{¶ 13} Accordingly, we will review appellant's assignment of error to analyze
whether the trial court abused its discretion in reaching specific legal conclusions based
upon the established facts.
{¶ 14} In order to establish cohabitation, our colleagues from the Sixth District in
Moell v. Moell, 98 Ohio App.3d 748, 752, 649 N.E.2d 880 (6th Dist.1994), stated the
following:
Whether or not a particular living arrangement rises to the level of
lifestyle known as "cohabitation" is a factual question to be initially
determined by the trial court. Dickerson v. Dickerson (1993), 87 Ohio
App.3d 848, 851, 623 N.E.2d 237, 239; Piscione v. Piscione (1992), 85 Ohio
App.3d 273, 276, 619 N.E.2d 1030, 1032. 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 sustained duration; and (3) with shared expenses
with respect to financing and day-to-day incidental expenses." Id. at fn. 2, Delaware County, Case No. 21 CAF 05 0022 6
citing Birthelmer v. Birthelmer (July 15, 1983), Lucas App. No. L-83-046,
unreported, 1983 WL 6869.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Mengel v. Mengel, 2021-Ohio-4166.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JEFFREY A. MENGEL : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JEANNINE L. MENGEL : Case No. 21 CAF 05 0022 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 16 DR A 11 0546
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 24, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANTHONY M. HEALD JOEL M. SPITZER 125 North Sandusky Street 285 South Liberty Street Delaware, OH 43015 Powell, OH 43065 Delaware County, Case No. 21 CAF 05 0022 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Jeannine L. Mengel, appeals the April 26, 2021
judgment entry of the Court of Common Pleas of Delaware County, Ohio, Domestic
Relations Division, terminating the spousal support obligation of Plaintiff-Appellee, Jeffrey
A. Mengel.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant and appellee were divorced on August 27, 2018. Appellee was
ordered to pay appellant spousal support in the amount of $500 per month for a period of
five years. The spousal support award was subject to termination upon the death of either
party, the marriage of appellant, or appellant's cohabitation with a non-related adult male.
{¶ 3} On May 6, 2020, appellee filed a motion to terminate spousal support,
claiming appellant was cohabitating with a non-related adult male.
{¶ 4} A hearing before a magistrate was held on October 2, 2020. By decision
filed March 2, 2021, the magistrate found based upon the evidence presented, appellant
was cohabitating with her boyfriend. The magistrate granted appellee's motion and
terminated his spousal support obligation effective June 1, 2020.
{¶ 5} Appellant filed objections. By judgment entry filed April 26, 2021, the trial
court overruled the objections, adopted the magistrate's decision, incorporated the
findings of fact and conclusions of law, and terminated appellee's spousal support
obligation.
{¶ 6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows: Delaware County, Case No. 21 CAF 05 0022 3
I
{¶ 7} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
RESULTING WHEN IT TERMINATED APPELLEE'S SPOUSAL SUPPORT
OBLIGATION, AS THE DECISION THAT THE APPELLANT AND HER BOYFRIEND
WERE COHABITATING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 8} In her sole assignment of error, appellant claims the trial court erred and
abused its discretion in terminating appellee's spousal support obligation. We disagree.
{¶ 9} Appellant filed objections to the magistrate's findings regarding her
cohabitation, but did not file a transcript of the magistrate's hearing for the trial court's
review. Civ.R. 53(D)(3)(b)(iii) states the following in pertinent part:
An objection to a factual finding, whether or not specifically
designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be
supported by a transcript of all the evidence submitted to the magistrate
relevant to that finding or an affidavit of that evidence if a transcript is not
available. * * * The objecting party shall file the transcript or affidavit with
the court within thirty days after filing objections unless the court extends
the time in writing for preparation of the transcript or other good cause. If a
party files timely objections prior to the date on which a transcript is
prepared, the party may seek leave of court to supplement the objections. Delaware County, Case No. 21 CAF 05 0022 4
{¶ 10} As this court stated in Doane v. Doane, 5th Dist. Guernsey No. 00CA21,
2001 WL 474267, *3 (May 2, 2001):
Because appellant did not file a transcript of the trial proceedings
with his objections to the magistrate's decision, the factual findings of the
magistrate are deemed established and may not be attacked on appeal.
Accordingly, we review appellant's assignments of error only to analyze
whether the trial court abused its discretion in reaching specific legal
conclusions based upon the established facts.
{¶ 11} When a party objecting to a magistrate's decision has failed to provide the
trial court with a transcript of the evidence by which the trial court could make a finding
independent of the decision, the appellate court is precluded from considering the
transcript of the magistrate's hearing submitted with the appellate record. State ex rel.
Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 654 N.E.2d 1254 (1995).
{¶ 12} Further, pursuant to Civ.R. 53(D)(3)(b)(ii), "[a]n objection to a magistrate's
decision shall be specific and state with particularity all grounds for objection." On March
15, 2021, appellant filed a general objection to the magistrate's decision without alleging
an error committed by the magistrate. Along with the broad objection, appellant
requested an extension to file more specific objections once the transcript was completed.
Pursuant to Civ.R. 53(D)(3)(b)(iii), appellant had until April 15, 2021, to file the transcript.
As noted by the trial court in its April 26, 2021 judgment entry, "[t]o date, neither the Delaware County, Case No. 21 CAF 05 0022 5
transcript, nor a request for additional time to file the transcript, have been filed with this
Court."
{¶ 13} Accordingly, we will review appellant's assignment of error to analyze
whether the trial court abused its discretion in reaching specific legal conclusions based
upon the established facts.
{¶ 14} In order to establish cohabitation, our colleagues from the Sixth District in
Moell v. Moell, 98 Ohio App.3d 748, 752, 649 N.E.2d 880 (6th Dist.1994), stated the
following:
Whether or not a particular living arrangement rises to the level of
lifestyle known as "cohabitation" is a factual question to be initially
determined by the trial court. Dickerson v. Dickerson (1993), 87 Ohio
App.3d 848, 851, 623 N.E.2d 237, 239; Piscione v. Piscione (1992), 85 Ohio
App.3d 273, 276, 619 N.E.2d 1030, 1032. 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 sustained duration; and (3) with shared expenses
with respect to financing and day-to-day incidental expenses." Id. at fn. 2, Delaware County, Case No. 21 CAF 05 0022 6
citing Birthelmer v. Birthelmer (July 15, 1983), Lucas App. No. L-83-046,
unreported, 1983 WL 6869.
{¶ 15} " '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.' "
Bickham v. Bickham, 5th Dist. Fairfield No. 11-CA-9, 2011-Ohio-4213, ¶ 7, quoting State
v. Williams, 79 Ohio St.3d 459, 465, 683 N.E.2d 1126 (1997).
{¶ 16} In her decision filed March 2, 2021, the magistrate made extensive findings
of fact relative to appellant's cohabitation with her boyfriend. The magistrate heard
testimony from both appellant and appellee. The magistrate found appellant resided in a
home with her boyfriend since April 2020. They share the master bedroom. They have
been in a relationship since October 2018. They are in an exclusive committed
relationship and "have a romantic and sexual relationship." They have affection for one
another. They share day-to-day living expenses, travel together, and attend sporting
events together. They assist each other during hospitalizations. "They appear to be a
source of comfort to one another." Other people view appellant and her boyfriend as "a
couple." Based upon the evidence presented, the magistrate concluded appellant was
cohabitating with her boyfriend.
{¶ 17} We find the magistrate's conclusion to be fully supported by her findings of
fact. The trial court conducted a review and "found no error of law or defect on the face
of the Magistrate's Decision." Judgment Entry filed April 26, 2021. Delaware County, Case No. 21 CAF 05 0022 7
{¶ 18} Upon review, we find the trial court did not abuse its discretion in adopting
the magistrate's decision and terminating appellee's spousal support obligation.
{¶ 19} The sole assignment of error is denied.
{¶ 20} The judgment of the Court of Common Pleas of Delaware County, Ohio,
Domestic Relations Division, is hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
EEW/db