Nemeth v. Nemeth

690 N.E.2d 1338, 117 Ohio App. 3d 554
CourtOhio Court of Appeals
DecidedJanuary 13, 1997
DocketNo. 96-JE-14.
StatusPublished
Cited by6 cases

This text of 690 N.E.2d 1338 (Nemeth v. Nemeth) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nemeth v. Nemeth, 690 N.E.2d 1338, 117 Ohio App. 3d 554 (Ohio Ct. App. 1997).

Opinion

*556 Cox, Judge.

This matter presents a timely appeal from a decision rendered by the Jefferson County Common Pleas Court, Domestic Relations Division, ordering that plaintiff-appellant/cross-appellee, John R. Nemeth, pay to defendant-appellee/crossappellant, Bonnie M. Nemeth, $675 per month as spousal support for eighteen months and specifically finding that appellee had been living in a state of cohabitation with another man during the parties’ marriage.

Appellant and appellee were married on June 28, 1969 and had one child, who is now emancipated. After twenty-six years of marriage, the parties began experiencing marital difficulties which culminated in appellant filing a complaint for divorce on November 15, 1995. Appellee filed a motion for temporary relief on November 27, 1995. Appellant likewise filed a motion for temporary relief on December 4,1995.

The trial court held a hearing on these motions on December 11, 1995. Upon due consideration, the trial court ordered that both parties continue to reside in the marital residence during the divorce action, that appellant pay all household expenses, and that appellant pay to appellee $300 per month as temporary spousal support. The order was never journalized by the trial court.

Appellee filed an answer and counterclaim for divorce on December 13, 1995. The matter proceeded to trial before the court on February 22, 1996. Immediately prior to trial, the parties entered into a separation agreement, which was' read into the record, approved by the trial court, and incorporated into the final judgment in this matter. The three issues which remained to be determined by the trial court were the grounds for divorce, spousal support, and possession of the family dog.

The testimony and evidence presented at trial revealed that appellant was gainfully employed by the Weirton Steel Corporation for most of the parties’ marriage, earning approximately $50,000 gross annually, while appellee was a homemaker and mother. Appellant acknowledged that although appellee had some vocational training and employment following high school, she had been employed more recently only by her brother, assisting him in his card store, for approximately four months. At the time of trial however, appellee was unemployed, and her sole source of income was the $300 per month that she received from appellant as temporary spousal support.

In late October 1994, appellee began engaging in a relationship with one Donald Barton, the exact nature of which was disputed by the parties. Appellee explained that following the hearing before the trial court on both parties’ temporary motions, appellant became verbally and physically abusive toward her and she began to spend extended amounts of time at Barton’s apartment, as it *557 was a safe haven for her. In April 1995 (prior to the hearing on the parties’ temporary motions), appellee began spending six days a week at Barton’s apartment. Appellant’s abusive conduct toward appellee was corroborated to some degree by the parties’ adult daughter.

Several seemingly provocative and romantic letters between Barton and appellee were submitted to the trial court, and appellee admitted that they attended social events together. Appellee' also began to receive her mail at Barton’s apartment, allegedly because appellant was opening her mail when it was delivered to the marital residence. There was no testimony that appellee and Barton shared living expenses.

Following trial, both parties submitted memoranda in support of their positions concerning spousal support. On March 18,1996, the trial court filed its judgment granting appellant a divorce on the grounds of appellee’s gross neglect of duty and ordering that appellant pay to appellee $675 per month as spousal support for eighteen months. In determining both the amount and duration of spousal support, the trial court applied the factors enumerated in R.C. 3105.18 and specifically found that appellee had been cohabiting with another man during the parties’ marriage.

Appellant filed his notice of appeal herein on March 29, 1996, which was followed by appellee’s notice of cross-appeal, filed on April 11, ■ 1996. Both appellant’s first and second issues for review and appellee’s first and second assignments of error on cross-appeal relate to spousal support and will therefore be discussed together. They state as follows:

“Whether the lower Court errored [sic] in awarding spousal support to the Appellee in light of the Court’s specific finding that the Appellee had been living in a state of cohabitation with another male during the course of her marriage.
“Whether the lower court abused its discretion in awarding spousal support to the Appellee in light of the Court’s specific finding that the Appellee had been living in a state of cohabitation with another male during the course of her marriage.
“The trial court abused its discretion in limiting the duration of spousal support to 18 months.
“The trial court’s finding that Cross-Appellant cohabitated with another man during the course of the parties’ marriage was against the manifest weight of the evidence.”

The abuse-of-discretion standard is applicable to appellate review of matters concerning spousal support. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140. The term “abuse of discretion” connotes *558 more than an error of law or judgment; it implies that the trial court’s attitude was arbitrary, unreasonable or unconscionable. Id.

R.C. 3105.18(C) provides a trial court with guidelines for determining whether spousal support is necessary, as well as the nature, amount and duration of spousal support payments. Furthermore, it is well established in Ohio that the question of cohabitation is to be determined by the trier of fact. Fuller v. Fuller (1983), 10 Ohio App.3d 253, 10 OBR 366, 461 N.E.2d 1348. If the judgment of the trial court is supported by some competent, credible evidence going to all the essential elements of the case, it will not be reversed by an appellate court as being against the manifest weight of the evidence. Bussey v. Bussey (1988), 55 Ohio App.3d 117, 563 N.E.2d 37.

In the case at bar, the trial court heard approximately seven to eight hours of testimony and reviewed supporting documentation prior to rendering its decision. The trial court also had the best'opportunity to observe the demeanor and assess the credibility of each witness. Both parties agree that the issue of whether a trial court has properly awarded spousal support when the recipient of support is specifically found to have been cohabiting with another during the marriage is one of first impression in Ohio.

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Bluebook (online)
690 N.E.2d 1338, 117 Ohio App. 3d 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nemeth-v-nemeth-ohioctapp-1997.