COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60823 JUDY L. LEHMAN : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : DALE LEHMAN : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Domestic Relations Division, D-194701. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Herbert Palkovitz, Esq. 1300 Standard Building Cleveland, OH 44113 For Defendant-Appellee: A. P. Leary, Esq. Newman, Leary & Brice 214 East Park Street Chardon, OH 44024 -2- DAVID T. MATIA, C.J.: Plaintiff-appellant appeals the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, which dismissed her complaint for divorce. Appellant assigns two errors for review, which are not well taken. Therefore, the judgment of the trial court is affirmed. STATEMENT OF FACTS Plaintiff-appellant Judy L. Lehman and defendant-appellee Dale Lehman were married on November 21, 1972. This marriage was dissolved on January 11, 1983, pursuant to the terms of a separation agreement entered into by the parties. No children were born as issue of the marriage. After the dissolution of the marriage, appellant and appellee continued to both reside in the home in Solon, Ohio in which they had lived throughout their marriage. There was an arrangement for the maintenance of the Solon home. Appellee paid the mortgage, gas and water bills; appellant paid the electricity and heating oil bill. The couple ate together two to three times a week, but both bought food and prepared meals. Appellant did most of the housecleaning, although appellee did testify in his deposition that he kept the kitchen clean. Appellant ex-wife handled all of the gardening chores on the three-quarter acre of land. Appellant also bought furniture for the house as well as a stove and refrigerator. Deposition testimony taken from appellee ex-husband and appellant ex-wife indicated that the couple socialized together to a limited extent, mostly family gatherings. They received -3- some correspondence, specifically, Christmas cards and thank you notes addressed to "Mr. and Mrs. Lehman." The couple had traveled together since the marital dissolution, had some joint bank accounts, but deposition testimony indicated that only one, either appellant or appellee, used the account. Furthermore, appellee is the beneficiary of appellant's life insurance policy. Appellant and appellee testified in their respective depositions that appellant ex-wife had foregone the settlement sum which represented her equity in the Solon home granted by the trial court in their dissolution of marriage. Appellant ex-wife testified that she permitted appellee ex-husband to use this equity share to start up a new business. Appellant and appellee both testified that they have not had sexual relations since the dissolution of marriage. They sleep in separate bedrooms in the Solon home but share the bathroom. STATEMENT OF THE CASE Plaintiff-appellant Judy L. Lehman filed a complaint for divorce on June 5, 1989. The complaint included a count for unjust enrichment. An amended complaint was filed. Defendant-appellee moved for summary judgment relying exclusively on deposition testimony. On October 12, 1990, the trial court granted appellee's motion for summary judgment and dismissed appellant's complaint for divorce. The trial court found no common-law marriage; that no written or oral agreement -4- existed between the parties; and that no joint property or liability was acquired by the parties. Appellant timely appeals the court's judgment. ASSIGNMENT OF ERROR I WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISMISSED APPELLANT'S COMPLAINT FOR DIVORCE, FINDING THAT THERE WAS NO COMMON LAW MARRIAGE BETWEEN THE PARTIES AND THAT NO JOINT PROPERTY OR JOINT LIABILITIES HAVE BEEN ACQUIRED BY THE PARTIES SINCE THE DISSOLUTION OF THEIR MARRIAGE THUS PREVENTING APPELLANT FROM BEING AWARDED A REASONABLE SUM OF ALIMONY AND AN EQUITABLE DIVISION OF PROPERTY. Appellant argues in her first assignment of error that the trial court erred when it dismissed appellant's complaint for divorce. Specifically, appellant argues that the court improperly found no evidence of a common-law marriage between the parties. This assignment of error is not well taken. ISSUE: WHETHER THE EVIDENCE PRESENTED TO THE COURT PROVED A COMMON-LAW MARRIAGE BETWEEN THE PARTIES The trial court granted summary judgment to appellee ex- husband finding no common-law marriage nor written nor oral agreement existed between appellant ex-wife and appellee ex- husband. Each element of a common-law marriage must be established by "clear and convincing evidence." Makeever v. Makeever (1984), 20 Ohio Misc. 2d 13. The elements that have to be established by the proponent of the common-law marriage are: 1) an agreement to marry in praesenti; -5- 2) cohabitation as husband and wife; and 3) a holding out by the parties to those with whom they normally came into contact resulting in a reputation as a married couple in the community. State v. DePew (1988), 38 Ohio St. 3d 275, 279; Nestor v. Nestor (1984), 15 Ohio St. 3d 143, 145-146. The essential element of a common-law marriage is the agreement to marry in praesenti. Nestor, supra. This may be proven either by way of direct evidence which establishes an agreement to marry, or by proof of the other two elements - cohabitation and reputation - which raises an inference of marriage, the strength of which depends on the circumstances of the particular case. Nestor, supra. In the case sub judice,, appellant ex-wife's own deposition testimony established that the couple did not have an agreement to be married in praesenti. Mrs. Lehman testified that since the dissolution of marriage, neither party had asked the other to get married. She, however, never considered herself unmarried. Mr. Lehman testified in his deposition that he had told certain friends and relatives that he and Mrs. Lehman were no longer married after the dissolution. Therefore, there being no direct evidence of a common-law marriage before the court, the court must consider whether there was evidence of the other two elements - cohabitation and reputation - which could raise an inference of marriage. In the factual situation before the court, both Mr. and Mrs. Lehman testified that they had not shared the same bedroom for -6- four years before dissolution and not for the entire time since dissolution of marriage. They both testified that there had been no sexual relationship between them for all of that time. On the issue of cohabitation, the court in Nestor, supra, reasoned that cohabitation meant that the parties had sexual activity in the open manner of husband and wife in a marital state. Nestor at 146. The court in Bussey, v. Bussey (1988), 55 Ohio App. 3d 117, however, found that the question of cohabitation, as a general rule, is to be determined by the trier of fact. Fuller v. Fuller (1983), 10 Ohio App. 3d 253. The Bussey court stated: *** The question then becomes whether or not their living together constituted cohabitation. Black's Law Dictionary (5 Ed.) 236 defines "cohabitation" as "[t]o live together as husband and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations." (Citation omitted.) Bromberg v. Bromberg (Apr. 7, 1983), Cuyahoga App. No. 45263, unreported; Miller v. Miller (Sept. 5, 1983), Cuyahoga App. No. 49279, unreported. It has been held that a single night together during which the parties engage in sexual intercourse is not sufficient to constitute cohabitation. Prather v. Prather (1983), 9 Ohio App. 3d 199, 9 OBR 311, 459 N.E. 2d 234. * * * On the other hand, it has been held that where a man lives in the home of a female friend at various times during a period of more than two years, uses her address as his own, travels with her, and registers at hotels with her as his wife, is intimate with her on a number of occasions, does not -7- contribute to the living costs while in her home, and where she pays their travel expenses, buys him clothing and loans him money, the evidence is sufficient to justify a termination of sustenance alimony. Wolfe v. Wolfe (1976), 46 Ohio St. 2d 399, 75 O.O. 2d 474, 350 N.E. 2d 413. Nevertheless, a sexual relationship between unmarried persons who live together is not conclusive on the issue of cohabitation. Taylor v. Taylor (1983), 11 Ohio App. 3d 279, 11 OBR 459, 465 N.E. 2d 476. Finally, we note that it has been held that where the evidence, while conflicting, does not establish sexual relations between a woman and her male friend, but does indicate that the man lived in the woman's home, went to school from there, returned there, went to work from there and returned again at night, bought groceries and helped with household chores, then cohabitation is established. Brooks v. Brooks (Sept. 4, 1986), Cuyahoga App. No. 50845, unreported. Bussey, supra, at 118, 119. Applying the Bussey analysis to the within case, we find that the fact that Mr. and Mrs. Lehman did not have intercourse or share a bedroom is not dispositive of this issue. That conduct standing alone would not defeat the existence of the common-law marriage if the other two elements were in place. Indeed, the court takes judicial note of the fact that possibly many legally married couples do not share a bedroom or have sexual relations. The court turns its attention then to the third element needed to show common-law marriage - that of holding out to the community the appearance of being in the married state. Here, too, in the case sub judice, the evidence is conflicting. The -8- couple received a few holiday cards and thank you notes addressed to Mr. and Mrs. Lehman from friends and relatives. The couple visited a couple of friends together for dinner, attended family funerals together and a wedding and a graduation. Mr. Lehman's mother had visited their home as well as their visiting the mother together in Florida. Both Mr. and Mrs. Lehman, testified at deposition, however, that they did not keep tabs on one another's coming and going, that they were free to date others and that Mr. Lehman had dated other women. Other extrinsic evidence, such as whose name was on the bank accounts, who paid the bills, maintained the house and yard and prepared the meals was likewise as uncertain. We find, therefore, that the evidence on the issues of cohabitation and reputation within do not give a clear cut inference of the Lehman's intent to establish a common- law marriage between them. What we do see is evidence of a relationship in which there was not a meeting of the minds as to exactly what was happening. The facts indicate that the couple had been to court and legally dissolved their ten year marriage. The couple returned home and continued to live as they had before. Mr. Lehman believed that his marriage to Mrs. Lehman had been dissolved and he told certain people that he was no longer married to Mrs. Lehman. Mrs. Lehman continued operating as if they were still married and testified that she believed that they were. We find then that since there was no meeting of the minds between the couple on the issue of the status of their marriage, there could not have been -9- a common-law marriage since "the fundamental requirement to establish the existence of a common-law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife." Nestor, supra, at 146. Hence, in the within case there was no evidence of common-law marriage between Mr. and Mrs. Lehman as there was not a meeting of the minds, nor even an agreement to take each other as man and wife right then. We hold, therefore, that the trial court did not err in granting summary judgment to appellee ex-husband and in dismissing appellant ex-wife's complaint for divorce, as there was no evidence of a common-law marriage, or of an oral or written agreement between the ex-husband and ex-wife. Accordingly, Assignment of Error I is overruled. ASSIGNMENT OF ERROR II WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO IMPOSE A CONSTRUCTIVE TRUST ON THE PROPERTY ACCUMULATED BY THE PARTIES DURING THE PERIOD OF THEIR COHABITATION SO AS TO AVOID APPELLEE'S BEING UNJUSTLY ENRICHED. Appellant asserts in her second assignment of error that the trial court erred when it did not impose a constructive trust on the property accumulated by the parties after dissolution of the marriage. Specifically, appellant argues that appellee was unjustly enriched. This assignment of error is not well taken. ISSUE: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY NOT IMPOSING A CONSTRUCTIVE TRUST -10- Appellant Mrs. Lehman asserts that appellee Lehman was unjustly enriched because the court did not divide the property accumulated during the cohabitation between the couple. At the outset of our analysis, we reiterate that the trial court properly found that there was no common-law marriage between the couple. See Bussey v. Bussey, supra; State v. DePew, supra; Nestor v. Nestor, supra. The court further properly found that there was no oral or written agreement between the parties. Appellant ex-wife now petitions the court to find the existence of an implied contract. We are disinclined to find such an agreement. The law is very clear in Ohio that cohabitation without benefit of marriage, either statutory or common-law, does not create an implied contractual relationship which can be the basis of a claim for damages for amounts expended during the relationship based on a theory of constructive trust or unjust enrichment. Lauper v. Harold (1985), 23 Ohio App. 3d 168. The appellate court in Lauper was asked to determine whether or not the trial court had properly granted appellee a judgment based on unjust enrichment. In Lauper a claim of common-law marriage had been alleged but was abandoned and appellee subsequently sought to recover certain expenditures during the cohabitation on the basis of unjust enrichment. The trial court entered a judgment in favor of appellee for certain costs incurred in the relationship. The appellate court in Lauper affirmed in part and reversed in part, reasoning that: -11- There is no precedent in Ohio for dividing assets or property based on mere cohabitation without marriage and we think it advisable not to start or follow a trend to the contrary. *** Lauper, supra, at 170. The court continued to reason, however, that although it was unwilling to find restitution based on the cohabitation relationship, it was willing to evaluate whether one party was unjustly enriched at the expense of the other. "However, even as we are unwilling to recognize a separate status for unmarried persons who are living together, we acknowledge that in any type of relationship ... there exists the possibility that one party may become unjustly enriched at the expense of the other." Lauper, supra. In the case sub judice, applying the reasoning of the Lauper appellate court to the within facts, we do not find an implied contract within from which to create a constructive trust. Further, we affirm the judgment of the trial court in finding that there was no evidence before the court that joint property and liabilities had accumulated between the couple during the cohabitation period. Weighing, therefore, the alleged benefits conferred upon appellee ex-husband by Mrs. Lehman during that time, to determine whether one party was unjustly enriched at the expense of the other, we find in the negative. The facts indicate that appellant ex-wife benefited from her continued living in the ex-marital home. She was free to come and go as she pleased and to spend her money likewise. There was -12- no evidence by way of rent receipts or otherwise that she paid rent, although she did pay some household expenses. She purchased furniture for the house, which she is free to remove. Appellant, too, can still pursue her equity in the ex-marital home awarded to her at the time of dissolution of marriage. Appellee ex-husband did benefit from appellant's maintenance of the house and yard, but we are reluctant to put a value on the work because appellant ex-wife benefited also since she fully partook of the cleanliness of the house and the beauty of the yard. Accordingly, finding no unjust enrichment, Assignment of Error II is overruled. Accordingly, finding no error and for the foregoing reasons, the trial court is affirmed. -13- It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Domestic Relations Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. FRANCIS E. SWEENEY, J. and ANN McMANAMON, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .