[Cite as Smith v. Smith, 2013-Ohio-1287.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
WENDI SUE SMITH, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-A-0017
- vs - :
JOHN VINCENT SMITH, JR., :
Defendant-Appellant. :
Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2010 DR
412.
Judgment: Affirmed.
Jane Timonere, Timonere Law Offices, L.L.C., 4 Lawyers Row, Jefferson, OH 44047-
1099 (For Plaintiff-Appellee).
Kenneth L. Piper, 185 Water Street, Geneva, OH 44041 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, John Vincent Smith, Jr., appeals the judgments of the
Ashtabula County Court of Common Pleas awarding monthly spousal support to
appellee, Wendi Sue Smith. At issue is whether the trial court’s finding that appellee did
not legally cohabit with a male paramour is against the weight of the evidence resulting
in an abuse of discretion. For the following reasons, the judgments are affirmed.
{¶2} The parties were married on May 25, 1996. On October 4, 2010, appellee
filed a complaint for divorce without children. Specifically relevant to this appeal, the
trial court ordered appellant to pay spousal support to appellee in the sum of $600 plus
2% processing charge on a monthly basis. The trial court held this spousal support
shall continue until November 1, 2014, and shall terminate upon death of either party,
upon the remarriage of appellee, or upon appellee cohabitating with a member of the
opposite sex. The trial court did not retain jurisdiction to otherwise modify the award of
spousal support.
{¶3} Appellant attached three judgment entries to his notice of appeal, two of
which this court has jurisdiction to entertain.
{¶4} First, appellant appeals from the trial court’s December 8, 2010 judgment
for support pendente lite, ordering $600 plus 2% monthly spousal support, retroactively
commencing on November 1, 2010. We note a “temporary pendente lite order is not a
final, appealable order. Rather, any claim of prejudicial error with respect to an
interlocutory order may be reviewed on appeal after a final judgment is entered in the
case in which the interlocutory order was entered.” DeChristefero v. DeChristefero,
11th Dist. No. 2001-T-0055, 2003-Ohio-3065, ¶36, citing Mekker v. Mekker, 11th Dist.
Nos. 98-P-0006, 98-P-0007, & 98-P-0100, 1999 Ohio App. LEXIS 6273 (Dec. 23, 1999).
{¶5} Second, appellant appeals from the trial court’s April 16, 2012 judgment
which purported to overrule appellant’s “objections” to a “docket entry.” This “docket
entry” is the capstone of a string of motions and entries which create something of a
procedural quagmire. On December 16, 2011, the trial court created a “docket entry”
that was, essentially, a review of what it intended to incorporate into the final divorce
decree. The “docket entry” stated that counsel for the plaintiff was to prepare the
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judgment entry of divorce in accordance with the “docket entry.” The trial court later
explained its rationale for employing this method:
{¶6} I call it a docket entry, and the reason I do that is in case I’ve made
a mistake in the facts, if I’ve overlooked some important fact, or if
I’ve misquoted, if the incomes are wrong or something of that
nature, it gives the attorneys a chance to call to the Court’s
attention a factual mistake that I’ve made. * * * There’s really
nothing in the law that permits a motion to reconsider a judgment
entry, although this isn’t a judgment entry yet.
{¶7} Appellant filed an “objection” to this “docket entry.” The court purported to
overrule this objection in its April 16, 2012 judgment entry. It appears the trial court
uses this method—which is not provided in any Civil Rule—as a courtesy to the parties
in the interest of judicial economy, possibly in an effort to eradicate subsequent filings of
Civ.R. 60(B) motions following the final order. It is, however, not a final order and
appears to merely advise the parties what the court intends to incorporate into the final
entry. Formal objections to this “docket entry” would be a nullity. Accordingly, when
objections were made, there was nothing for the trial court to rule on because its
“docket entry” was not intended as the final divorce decree. Thus, the court’s April 16,
2012 entry has no effect. This is ultimately inconsequential, however, as appellant has
also timely appealed from the final divorce decree, which essentially mirrors the initial
“docket entry” from which appellant objected in the first instance.
{¶8} Third, and material to the present appeal, appellant appeals from the trial
court’s April 17, 2012 judgment, which served as the final decree of divorce and ordered
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appellant to continue paying spousal support in the sum of $600 plus 2% until
November 1, 2014. This entry is a final, appealable order and has been timely and
properly appealed.
{¶9} The crux of appellant’s contentions throughout the pendency of this action
and on appeal is that the trial court’s spousal support award is inconsistent with its
decree that spousal support would terminate upon appellee cohabitating with a member
of the opposite sex. Appellant explains there is ample evidence which illustrates that
his former wife has been legally cohabitating with her paramour, Eric McCain. Thus,
appellant argues, pursuant to the court’s decree, the spousal support award must
terminate.
{¶10} Accordingly, appellant raises a sole assignment of error, which states:
{¶11} “The trial court abused its discretion in awarding spousal support of $600
monthly to Plaintiff-Appellee Wendi Sue Smith.”
{¶12} A trial court’s grant of spousal support is reviewed under an abuse of
discretion standard. Dilley v. Dilley, 11th Dist. No. 2010-G-2957, 2011-Ohio-2093, ¶59.
An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and
legal decision-making.’” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900,
¶62, quoting Black’s Law Dictionary (8 Ed.Rev. 2001) 11. Whether a trial court abused
its discretion in making factual findings, such as a finding of cohabitation, is reviewed
pursuant to a manifest-weight standard. See Harrison v. Harrison, 11th Dist. No. 2005-
A-0029, 2006-Ohio-4948, ¶12 (“[w]hether cohabitation exists is a question of fact for the
trial court, and is subject to a manifest weight of the evidence review”); see also Doody
v. Doody, 11th Dist. No. 2006-L-200, 2007-Ohio-2567, ¶51.
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{¶13} “Judgments supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed by a reviewing court as being
against the manifest weight of the evidence.” Harrison, supra, ¶12, citing C.E. Morris
Co. v. Foley Construction Co., 54 Ohio St.2d 279 (1978). Thus, “in determining whether
the trial court has abused its discretion, a reviewing court is not to weigh the evidence,
‘but must ascertain from the record whether there is some competent evidence to
sustain the findings of the trial court.’” Foxhall v. Lauderdale, 11th Dist. No. 2011-P-
0006, 2011-Ohio-6213, ¶28, quoting Clyborn v. Clyborn, 93 Ohio App.3d 192, 196 (3d
Dist.1994).
{¶14} Appellant argues the trial court’s spousal support award was improper
because appellee and her male paramour have legally cohabitated since September
2010; i.e., they have lived together for a period of time and have assumed various
obligations, including financial support. Appellant contends this is inconsistent with the
trial court’s decree that the spousal support award shall terminate upon appellee’s
cohabitation with a member of the opposite sex. Appellant argues that, logically,
cohabitation during the pendency of the divorce should preclude an original spousal
support award.
{¶15} R.C. 3105.18(C)(1) lists multiple factors a trial court is required to consider
when determining whether a spousal support award is “appropriate and reasonable.”
Hawley v. Hawley, 11th Dist. No. 2003-P-0096, 2004-Ohio-3189, ¶14; see also Dilley,
supra, ¶44-58. The list of factors is non-exhaustive, and the trial court is permitted to
consider any other factor it finds to be “relevant and equitable” in its spousal support
determination; therefore, the matter of cohabitation, though not an express statutory
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factor, may nonetheless be considered. Bernard v. Bernard, 7th Dist. No. 00 CO 25,
2002-Ohio-552, ¶14. Thus, a finding of cohabitation may influence a spousal support
award; however, as appellee points out, “[t]he fact that an ex-spouse cohabits with
another person does not automatically bar an award of spousal support.” Crissinger v.
Crissinger, 7th Dist. No. 05-HA-579, 2006-Ohio-754, ¶16 (emphasis added); see also
Eley v. Eley, 3d Dist. No. 8-83-18, 1994 Ohio App. LEXIS 1046, *3 (explaining there is
no authority requiring a trial court to provide for termination of spousal support when the
recipient cohabitates with a member of the opposite sex).
{¶16} Appellant takes exception to the above-framed law on two grounds. First,
relying on Dunaway v. Dunaway, 53 Ohio St.3d 227 (1990), appellant argues public
policy requires a trial court terminate an original award where there has been legal
cohabitation. The public policy argument is that one should not financially support a
former spouse who is living with a member of the opposite sex, as if married. However,
the Ohio Supreme Court rebuked the public policy considerations outlined in Dunaway
because such considerations conflicted with, and were superseded by, R.C. 3105.18.
Kimble v. Kimble, 97 Ohio St.3d 424, 2002-Ohio-6667, ¶8.
{¶17} Second, appellant contends the issue of cohabitation must be decided as
a matter of law. Stated differently, appellant argues this court, on review, can determine
whether appellee and Mr. McCain legally cohabited as a matter of law. However, in this
case, there were no admissions concerning cohabitation. In fact, the parties presented
disputed facts and conflicting inferences concerning the extent of the personal and
financial relationship between appellee and Mr. McCain. As a result, the trial court
made some factual determinations. This court is not in a position to disturb those
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factual conclusions and resolve the issue as a matter of law. See Harrison v. Harrison,
11th Dist. No. 2005-A-0029, 2006-Ohio-4948, ¶12 (“[w]hether cohabitation exists is a
question of fact for the trial court”); Farone v. Farone, 11th Dist. No. 94-L-058, 1995
Ohio App. LEXIS 4021, *7-8 (Sept. 15, 1995) (“[w]hether a certain living arrangement
should be classified as ‘cohabitation’ * * * is primarily a factual question to be
determined by the trial court”); see also McClain v. McClain, 11th Dist. No. 98-P-0002,
1999 Ohio App. LEXIS 4655 (Sept. 30, 1999).
{¶18} Based upon the record before this court, it cannot be concluded the trial
court abused its discretion in rendering its spousal support determination. The trial
court found that, due to the health condition of appellee (R.C. 3105.18(C)(1)(c)) and the
“substantial earning power” of appellant (R.C. 3105.18(C)(1)(a)), an award of spousal
support for a total four-year period would be consistent with the parties’ respective
needs, their earning ability, and the length of the marriage. The trial court also found
the evidence failed to demonstrate the requisite financial responsibilities and consortium
similar to marriage to support a finding of legal cohabitation between appellee and Mr.
McCain. Based upon a review of the record, we find these conclusions to be
substantiated by competent, credible evidence. There is nothing to suggest the court
failed to exercise sound, reasonable, and legal decision-making.
{¶19} As a final, outstanding procedural matter, before us is appellant’s appeal
from the December 8, 2010 judgment for support pendente lite. Appellant premises his
argument on the purported fact that appellee and Mr. McCain’s cohabitation began on
September 30, 2010, in a motel room in Norfolk, Ohio. Thus, appellant seems to
suggest he was immediately prejudiced by this interlocutory order.
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{¶20} On this record, there is nothing to suggest the trial court made any error
by issuing the temporary order. If proof with respect to the issue of cohabitation
becomes more evident, it is clear the trial court continues to retain jurisdiction to
terminate the award on this basis. It is also clear there is nothing in this record that
establishes error by the trial court in the initial award.
{¶21} Appellant’s sole assignment of error is without merit.
{¶22} Accordingly, the judgments of the Ashtabula County Court of Common
Pleas are affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
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