Carr v. Carr

[Cite as Carr v. Carr, 2021-Ohio-2530.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
COLLEEN CARR (nka MCNAMARA) :
:
Plaintiff-Appellee : Appellate Case No. 28959
:
v. : Trial Court Case No. 2014-DR-1138
:
BRIAN P. CARR : (Domestic Relations Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 23rd day of July, 2021.
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KEITH R. KEARNEY, Atty. Reg. No. 0003191 & AMY L. BLAIR, Atty. Reg. No. 0073760,
2160 Kettering Tower, 40 North Main Street, Dayton, Ohio 45423
Attorneys for Plaintiff-Appellee
DEAN E. HINES, Atty. Reg. No. 0062990, 5335 Far Hills Avenue, Suite 313, Dayton,
Ohio 45429
Attorney for Defendant-Appellant
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EPLEY, J.
{¶ 1} Brian P. Carr appeals from a judgment of the Montgomery County Court of
Common Pleas, Domestic Relations Division, which denied his motion to
reduce/eliminate spousal support. For the following reasons, the trial court’s judgment
will be affirmed.
I. Facts and Procedural History
{¶ 2} The parties married in 1987. In December 2014, Colleen Carr (nka Colleen
McNamara) filed a complaint for divorce. A final judgment and decree of divorce was
issued on August 1, 2016. Under the terms of the divorce decree, Brian Carr (Carr) was
required to pay spousal support in the amount of $4,000 per month for a period of 112
consecutive months (Tier One spousal support). In addition, Carr was required to pay
McNamara a lump sum of $12,000 before December 31 of each calendar year in which
he was required to pay Tier One spousal support. During partial years, the $12,000
would be prorated in the amount of $1,000 for each month that Carr was required to pay
spousal support. In general, Carr’s aggregate annual spousal support obligation was
$60,000. The decree specified that Carr’s spousal support obligation was based on his
“average annual wage and bonus income of $269,000.00 and Wife’s average annual
income of $80,000.00.”
{¶ 3} The trial court retained jurisdiction over the amount of spousal support, but
not the duration. The decree provided that spousal support would terminate upon the
death of either party or McNamara’s remarriage. In addition, the decree ordered that
spousal support “shall further be subject to review upon Plaintiff’s [McNamara’s]
cohabitation with an unrelated adult male who contributes to the Plaintiff’s income in
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accordance with Ohio law.”
{¶ 4} In June 2018, Carr moved to modify or terminate spousal support based on
his belief that McNamara was cohabitating with her boyfriend, David Boch. In advance
of a hearing, Carr sent McNamara a request for admissions, to which McNamara did not
reply. In June 2019, Carr filed a motion to deem the requested matters admitted, which
the trial court granted. Three months later, in September 2019, Carr withdrew his
motion.
{¶ 5} On November 21, 2019, Carr again filed a motion to reduce/eliminate spousal
support. The trial court held a hearing on the motion on September 2, 2020, during which
both Carr and McNamara testified. On October 26, 2020, the trial court denied Carr’s
motion, finding that Carr had failed to demonstrate that McNamara was cohabitating with
an unrelated adult male who provided support or the existence of a change of
circumstances to warrant the modification or termination of spousal support.
{¶ 6} Carr appeals from the trial court’s judgment, raising two assignments of error.
II. Cohabitation
{¶ 7} Carr’s first assignment of error claims that the trial court “erred, abused its
discretion and ruled against the manifest weight of the evidence in finding that there was
no cohabitation of Plaintiff/Appellee with an unrelated adult male who provides support.”
{¶ 8} “[C]ohabitation is established, and a spousal support obligation is subject to
termination, when a paramour voluntarily undertakes a duty of total support or otherwise
assumes obligations equivalent to those arising from a ceremonial marriage.” Raska v.
Raska, 2018-Ohio-3921, 120 N.E.3d 469, ¶ 10 (2d Dist.), citing Perri v. Perri, 79 Ohio
App.3d 845, 851-852, 608 N.E.2d 790 (2d Dist.1992); Rihan v. Rihan, 2d Dist. Greene
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No. 2005-CA-103, 2006-Ohio-2671, ¶ 11. We have recognized that a primary purpose
of a cohabitation provision is “ ‘to prevent a person from receiving support from two
sources, each of whom is obligated or voluntarily undertakes the duty of total support.’ ”
Perri at 850, quoting Taylor v. Taylor, 11 Ohio App.3d 279, 280, 465 N.E.2d 476 (1st
Dist.1983). “Cohabitation is a question of fact for the trier of facts.” Raska at ¶ 10.
{¶ 9} On occasion, this appellate district has continued to state that a trial court’s
decision should not be reversed as against the manifest weight of the evidence if it is
supported by some competent credible evidence going to the essential elements of the
issue. See, e.g., Raska at ¶ 9, citing Day v. Day, 2d Dist. Greene No. 2002-CA-79, 2002-
Ohio-6779, ¶ 4. However, the manifest-weight standard requires us to weigh the
evidence and all reasonable inferences, to consider the credibility of witnesses and
determine whether in resolving conflicts in the evidence, the finder of fact clearly lost its
way and created a manifest miscarriage of justice. See Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19; Bass v. Bass, 2d Dist. Montgomery
No. 28217, 2019-Ohio-2746, ¶ 35; Winhoven v. Winhoven, 2d Dist. Clark No. 2014-CA-
137, 2015-Ohio-2793, ¶ 16.
{¶ 10} According to her testimony at the September 2, 2020 hearing, McNamara
began dating Boch in 2015, after the complaint for divorce was filed but prior to the filing
of the judgment and decree of divorce. She resided at the marital residence while the
divorce case was pending. The terms of the divorce decree, which was filed on August
1, 2016, required to her to vacate the marital residence by August 22, 2016. McNamara
looked for an apartment, and on August 2, she signed a one-year lease for an apartment
on Far Hills Avenue, located in the Georgetown of Kettering apartment complex in
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Kettering. McNamara moved into that apartment around August 22, 2016. After the
one-year written lease expired, McNamara rented the apartment on a month-to-month
basis. McNamara initially paid $675 per month in base rent. Beginning September
2018, the base rent increased to $750 per month. The resident ledger for her apartment
(Exhibit C) showed that McNamara paid additional fees for pest control, trash removal,
and water/sewer. McNamara testified that she also paid for electricity for the apartment.
{¶ 11} McNamara testified that she resided at the apartment until the weekend
before the hearing. She had purchased a house on Indian Hills Drive in Kettering on
Friday, August 28, 2020, and moved in the next day. McNamara explained that she had
not previously purchased a home, because she and Carr had a second home that was in
foreclosure and she needed to wait three years for credit purposes. McNamara paid a
20 percent down payment from her savings for the Indian Hills home, and all the expenses
for the residence (mortgage, utilities, cable, real estate taxes) were in her name. The
deed was in her name only, and she intended to live at the home alone.
{¶ 12} Carr presented numerous documents that listed McNamara’s home
address, beginning immediately after the filing of the divorce decree, as a residence on
West Woodbury Drive in Harrison Township, which McNamara agreed was the home of
David Boch, her boyfriend. These documents spanned nearly every important aspect of
McNamara’s life, including her passport, driver’s license, bank statements, credit union
membership card, credit card statements, Verizon bill, car loan documents, tax returns
(federal, state, and local), checks, vehicle registrations with the Ohio Bureau of Motor
Vehicles, Ohio voter registration, realtor license, and court cases in Springboro. Carr
also presented evidence that McNamara had 76 Amazon purchases delivered to the
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Woodbury address. McNamara acknowledged that she had no Amazon purchases
delivered to her Far Hills apartment. In addition, McNamara’s PayPal account listed the
Woodbury address as her address.
{¶ 13} McNamara provided three reasons why she listed the Woodbury address,
rather than her Far Hills apartment, as her address. She first stated that, prior to the
filing of the divorce decree, Carr was “taking things and hiding them on me,” and she had
concerns about not receiving her passport for a destination wedding in August 2016.
McNamara stated that she had her passport sent to the Woodbury address and that she
“had to match my [driver’s] license to my passport.” Second, she repeatedly expressed
that, as a realtor, she had concerns about clients’ researching her on the internet and
discovering that she lived at an apartment. Third, McNamara stated that she had
problems with mail delivery at the Far Hills apartment. Specifically, packages were
incorrectly delivered to a different apartment, and mail would get soaked when it rained.
McNamara testified at the hearing that she planned to change her address to the Indian
Hills address.
{¶ 14} When questioned about whether her and Carr’s three adult children had
been to the Far Hills apartment, McNamara indicated that only one child, who lived in
Columbus, had been to the apartment. She stated that all three of her children had been
to Boch’s home for Christmas holidays, explaining that his home was larger and the
gathering included his children, as well. Boch had been to McNamara’s apartment, but
she testified that he never stayed there before Covid and had only stayed there “maybe
once a week” since.
{¶ 15} McNamara repeatedly denied that she lived at the Woodbury address and
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cohabitated with Boch. She asserted that, from August 2016 until she closed on the
Indian Hills home, she resided alone at the Far Hills apartment. McNamara testified that
she stayed overnight at Boch’s home two or three times a week, at most, and no more
than two consecutive nights. McNamara asserted that she received no financial
assistance from Boch, and she paid his cable bill in exchange for his storage of her
vehicle, treadmill, and elliptical machine. McNamara stated that the divorce decree
precluded her from receiving any financial assistance from Boch, and it “requires me to
have my own residence so at this point I was renting.” She did not have any joint bank,
credit, or investment accounts with Boch, and she testified that she received no money
from Boch and that he paid no debts on her behalf. McNamara further stated that she
did not contribute to Boch’s mortgage, heating bill, water and sewage bills, or other
expenses.
{¶ 16} Carr testified that he sought a reduction in his spousal support obligation
based on statements from his children about the amount of time that McNamara was
spending at Boch’s residence. Carr knew that McNamara had been dating Boch before
the divorce, and an email exchange between McNamara and Carr suggested to Carr that
she was maintaining her apartment solely for the purpose of maintaining her spousal
support, not to live there. Carr stated that he thought “it’s a sham that she’s spent
thousands of dollars a year to cheat me out of money.”
{¶ 17} Carr, an accountant, testified that he reviewed “all of the records in this
case.” He did not see any income from Boch to McNamara’s bank account, although he
indicated that he did not expect to find any evidence there. Carr acknowledged that he
did not see any joint credit card statements for Boch and McNamara, nor any indication
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that Boch helped sign or pay for her leased apartment or paid living expenses or debts
on McNamara’s behalf. Carr stated that he had no evidence that anyone other than
McNamara paid her bills. Carr hired a private investigator to watch the house and the
apartment, but he did not offer any witnesses regarding that investigation.
{¶ 18} Upon consideration of the evidence, the trial court found that Carr had failed
to demonstrate that McNamara was cohabitating with Boch. It reasoned:
Although the court finds [McNamara’s] testimony to be somewhat testing
the limits of credibility when explaining why she lists [Boch’s] residence on
virtually every document, including, but not limited to cell phone bills,
passport, driver’s license, bank statements, etc. [sic] However, there was
no evidence submitted that actually demonstrated that [Boch] and
[McNamara] are residing together. Even more, there was no
demonstration that the parties have engaged in a relationship that is
tantamount to a ceremonial marriage. In fact, there was no evidence
submitted that the parties are sharing living expenses.
There was no evidence that either [McNamara] was supporting
[Boch], nor [sic] that [Boch] was supporting [McNamara].
{¶ 19} Upon review of the record, we cannot conclude that the trial court’s
determination that McNamara and Boch were not cohabitating was against the manifest
weight of the evidence. In reaching its determination, the trial court, as the trier of fact,
was free to believe all, part, or none of the testimony of each witness and to draw
reasonable inferences from the evidence presented. See State v. Hemming, 2d Dist.
Montgomery No. 28738, 2021-Ohio-971, ¶ 37. Moreover, it was the province of the trier
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of fact to weigh the evidence and determine whether Carr had met his burden to
demonstrate cohabitation.
{¶ 20} Here, McNamara testified that she rented and resided at an apartment on
Far Hills Avenue from August 2016 until late August 2020. The resident ledger
substantiated her claim that she maintained that apartment. McNamara repeatedly
denied that she resided with Boch at his Woodbury home. She indicated that she stayed
overnight at Boch’s residence two or three nights per week, at most, and Boch
infrequently stayed with her at her apartment. Carr did not present any evidence to
refute her testimony in that regard.
{¶ 21} There was no evidence that Boch paid any of McNamara’s debts, had any
joint finances with her, or provided any financial support for McNamara. McNamara’s
testimony reasonably reflected that she was scrupulous in her efforts to ensure that Boch
did not provide her with any financial support. For example, she indicated that, because
she was not permitted to receive any support from Boch, she paid his cable bill to
compensate him for storing her vehicle and workout equipment. In light of this evidence,
the trial court reasonably concluded that Carr failed to establish that McNamara
cohabitated with an unrelated adult male who provided support.
{¶ 22} Carr focuses on the numerous documents showing that McNamara
identified Boch’s residence as her home address, beginning from the time of the divorce.
The trial court questioned McNamara’s credibility as to her explanations for doing so, and
it would not have been unreasonable for the trial court to reject McNamara’s explanations
and conclude that she used Boch’s address because she, in fact, resided with him.
However, Carr did not present evidence to refute McNamara’s testimony regarding the
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amount of time that she stayed at Boch’s home, and he provided no evidence that Boch
provided any support for McNamara. Accordingly, we cannot conclude that the court lost
its way in finding that Carr’s evidence did not establish cohabitation with an unrelated
adult male who provides support.
{¶ 23} Carr’s first assignment of error is overruled.
III. Change of Circumstances
{¶ 24} In his second assignment of error, Carr claims that the trial court “erred,
abused its discretion and ruled against the manifest weight of the evidence” by failing to
consider (1) a change of circumstances not contemplated at the time that the decree of
divorce was filed and (2) the factors for modifying spousal support as detailed in R.C.
3105.18(C) and R.C. 3105.18(F).
{¶ 25} Before a trial court may modify a spousal support award, the trial court must
determine that the divorce decree contained a provision specifically authorizing the court
to modify the amount or terms of spousal support and that the circumstances of either
party have changed. Ford v. Ford, 2d Dist. Montgomery No. 28358, 2019-Ohio-3920,
¶ 11, citing Strain v. Strain, 12th Dist. Warren No. CA2005-01-008, 2005-Ohio-6035,
¶ 11; R.C. 3105.18(E).
{¶ 26} A change of circumstances “includes, but is not limited to, any increase or
involuntary decrease in the party’s wages, salary, bonuses, living expenses, or medical
expenses, or other changed circumstances so long as * * * (a) [t]he change in
circumstances is substantial and makes the existing award no longer reasonable and
appropriate [and] (b) [t]he change in circumstances was not taken into account by the
parties or the court as a basis for the existing award when it was established or last
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modified * * *.” R.C. 3105.18(F)(1); Stevens v. Stevens, 2d Dist. Montgomery No. 27761,
2018-Ohio-2662, ¶ 7.
{¶ 27} Even when the evidence does not establish a finding of cohabitation, a trial
court may consider whether the relationship between the spousal support obligee and the
paramour resulted in a change of circumstances sufficient to entitle the spousal support
obligor to some relief. Perri at 852. “Simply put, the focus should be on whether an
appreciable amount of the spousal support paid by the obligor directly benefitted the
paramour. If so, the proper remedy is not the termination of spousal support, but a
reduction in the amount of support to the extent that it directly benefitted the paramour.”
(Citations omitted.) Raska at ¶ 12.
{¶ 28} If the trial court finds that a change of circumstances exists, it must then
determine whether the change of circumstances merits a termination or modification of
the existing spousal support order. McNutt v. McNutt, 2d Dist. Montgomery No. 20752,
2005-Ohio-3752, ¶ 10. “In order to make that determination, a trial court must consider
all relevant factors, including those listed in R.C. 3105.18.” Norbut v. Norbut, 2d Dist.
Greene 2004-CA-87, 2006-Ohio-2130, ¶ 30; Ford, 2d Dist. Montgomery No. 28358, 2019-
Ohio-3920, at ¶ 12. R.C. 3105.18(C)(1) enumerates the following factors that the trial
court must consider in determining whether spousal support is “appropriate and
reasonable” and “the nature, amount, and terms of payment, and duration of spousal
support”:
(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;
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(b) The relative earning abilities of the parties;
(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
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equitable.
“The burden of showing that a reduction of spousal support is warranted is on the party
who seeks the reduction.” Bohme v. Bohme, 2d Dist. Montgomery No. 27258, 2017-
Ohio-1190, ¶ 9, quoting Reveal v. Reveal, 154 Ohio App.3d 758, 2003-Ohio-5335, 798
N.E.2d 1132, ¶ 14 (2d Dist.).
{¶ 29} We review a trial court’s decision regarding modification of spousal support
for an abuse of discretion. Ford at ¶ 11. An abuse of discretion occurs when a court's
attitude is unreasonable, arbitrary, or unconscionable. AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597(1990).
{¶ 30} The parties’ divorce decree stated that the amount of spousal support was
based on Carr’s average annual wage and bonus income of $269,000 and McNamara’s
average annual income of $80,000. Carr testified that the $269,000 amount was based
on a three-year average.
{¶ 31} At the beginning of the September 2, 2020 hearing, the parties stipulated
that Carr’s current average income from his employment was $405,000 and that
McNamara’s average income from her realty business remained $80,000. The record
reflects that neither party had a change of employment. Carr continued to work at his
accounting and financial services firm and McNamara continued to work as a realtor for
Coldwell Banker.
{¶ 32} Carr did not demonstrate that McNamara had a significant change to her
expenses or that Boch was contributing, in any way, to the payment of her expenses.
Nor did Carr provide any evidence that McNamara was supporting Boch in any way.
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Other than his assertion that McNamara was maintaining her Far Hills apartment as a
“sham” and that she was living with Boch, Carr did not offer any basis for a change of
circumstances.
{¶ 33} The trial court expressly found that Carr had “failed to demonstrate a
change of circumstances that warrant a modification and/or termination of the spousal
support[.]” On this record, the trial court did not abuse its discretion in finding that Carr
failed to demonstrate the existence of a change of circumstances. There was no
evidence that an “appreciable amount of the spousal support paid by the obligor directly
benefitted the paramour.”
{¶ 34} Carr further claims that the trial court erred in failing to consider the statutory
factors in R.C. 3105.18. However, given that the trial court concluded that there had not
been a change of circumstances, the trial court was not required to consider whether the
statutory factors supported a modification in spousal support. See Ford at ¶ 16 (“Norbut
stands for the proposition that, when there has been a change in circumstances that could
support a spousal support modification, the court, before ordering such modification, must
consider the R.C. 3105.18(C) factors.).
{¶ 35} Carr’s second assignment of error is overruled.
IV. Conclusion
{¶ 36} The trial court’s judgment will be affirmed.
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TUCKER, P. J. and WELBAUM, J., concur.
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Copies sent to:
Keith R. Kearney
Amy L. Blair
Dean E. Hines
Hon. Timothy D. Wood