COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68782 JOYCE E. JENNINGS, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION NELSON D. JENNINGS, : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 26, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Domestic Relations Division : Case No. D-157342 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Gary A. Kazdin 75 Public Square Suite 1020 Cleveland, Ohio 44113 For defendant-appellee: Barbara K. Roman 1375 East Ninth Street 20th Floor Cleveland, Ohio 44114 -2- NAHRA, J.: Appellant, Joyce E. Jennings, is appealing the trial court's order granting the motion of appellee, Nelson D. Jennings, to terminate spousal support. Appellant contends the trial court arbitrarily selected the date upon which the support order should terminate. She also asserts that termination of the support order before appellee filed his motion to terminate violated her right to due process. For the following reasons, we affirm. The parties' separation agreement stated that the payment of support alimony shall terminate and end absolutely upon the cohabitation of Joyce E. Jennings with a male person not related by consanguinity. Appellee first suspected appellant was cohabitating sometime after December, 1993, when he discovered appellant had a new address and observed her shopping with the cohabitor. On April 6, 1994, appellee filed his motion to terminate spousal support. In the motion, he stated he had overpaid support and requested that appellant re-pay him for the overpayments. On April 8, 1994, the court granted a temporary restraining order on the Child Support Enforcement Agency (CSEA) from disbursing any money withheld until the motion to terminate support was heard. The parties stipulated that appellee owed an arrearage in spousal support of $2,880.00. The parties agreed that the arrearage would be paid out of sums currently held by the CSEA not rightfully belonging to appellant as a result of the ruling on the appellee's motion to terminate. They further stipulated that appellant and David Hansbrough, a male not related by -3- consanguinity, resided at a condominium jointly titled to appellant and Hansbrough from October 1, 1992 until at least June 1, 1994. The referee found that the spousal support should terminate on the happening of cohabitation and "should end October 1992." The referee ordered the arrearage of $2,880.00 to be paid to appellant from the sums on hold with the CSEA. The rest of the money held by CSEA was to be released to appellee. The referee's recommendation stated, "This order shall take effect April 6, 1994." The trial court overruled the objections of both parties and approved the recommendation of the referee, subject to modifications. The modifications were as follows: The spousal support decree shall terminate October 1, 1992. All the money on hold with the CSEA shall be released to appellee. The $2,880.00 arrearage shall be set off against the appellee's overpayment of support paid from October 2, 1992 through payment disbursed April 11, 1994. The order stated, "This order shall take effect April 6, 1994." Before we reach appellant's assignments of error we must rule on appellant's motion to stay this appeal pending clarification of the lower court's order. Appellant asserts that the trial court's order contained two effective dates, October 1, 1992 and April 6, 1994, and clarification is needed as to which date is the effective date. According to appellant, if the trial court states that April 6, 1994 is the effective date, then the issues in this appeal would be moot. -4- The trial court specifically ordered that the arrearage of $2,880.00 owed by appellee was to be offset against appellee's overpayment of support from October 2, 1992 through April 11, 1994. The parties stipulated that the arrearage would be offset against monies held by CSEA, but did not agree that the offset would be against overpayments before April 6, 1994, the date appellee filed his motion to terminate support. Thus, the court intended its order to affect overpayments before April 6, 1994. No clarification is needed from the trial court. The issues of whether the court abused its discretion in adopting an effective date of October 1, 1992 for termination of the spousal support order, and whether the order violated appellant's due process rights are not moot. Appellant's motion to stay this appeal is overruled. I. Appellant's first assignment of error states: THE TRIAL COURT'S MODIFICATION OF THE EFFECTIVE DATE OF THE ORDER OF TERMINATION OF SPOUSAL SUPPORT WAS UTTERLY ARBITRARY AND CONSTITUTED AN ABUSE OF DISCRETION. Pursuant to the separation agreement, alimony was to terminate upon the happening of cohabitation. The trial court found that October 1, 1992 was the date cohabitation began. This finding is supported by the stipulated facts that the appellant and Hansbrough moved into the jointly owned condominium on October 1, 1992. Appellant testified that she and Hansbrough both contributed towards the purchase of the property. Appellant also stated that -5- when the parties lived together they shared living expenses. There was no testimony that the arrangements as to sharing expenses were different when the parties first moved in. There was sufficient, competent, credible evidence to find that as of October 1, 1992, the appellant and Hansbrough assumed obligations equivalent to marriage, including support. See Taylor v. Taylor (1983), 11 Ohio App.3d 279, Thomas v. Thomas (1991), 76 Ohio App.3d 482. The trial court did not arbitrarily select the date of cohabitation, but made its finding on sufficient evidence. Appellant contends a retroactive order to terminate support would be unfair. A retroactive order terminating support upon cohabitation is permissible when the separation agreement or divorce decree provides that support shall terminate upon cohabitation. See Thomas, supra, Charlton v. Charlton (Oct. 11, 1994), Noble App. No. 218, unreported, Perala v. Perala (Nov. 6, 1987), Lake App. No. 12-102, unreported, Pader v. Pader (Sept. 24, 1985), Franklin App. No. 85AP-347. A retroactive order was appropriate here because the parties agreed in the separation agreement that spousal support would terminate upon cohabitation. Appellant asserts that appellee waived his right to overpayments of support made before his motion to terminate support. A waiver results from acts and conduct manifesting a clear intent to relinquish a known right. Allenbaugh v. Canton (1940), 137 Ohio St. 128, Daugherty v. Central Trust Co. (1986), 28 Ohio St.3d 441, 442. Appellee's motion to terminate support requested reimbursement for overpayments and did not manifest an -6- intent to waive this right. The trial court did not abuse its discretion in finding that the spousal support should terminate October 1, 1992. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT'S HOLDING, THAT SPOUSAL SUPPORT SHOULD TERMINATE MORE THAN EIGHTEEN (18) MONTHS PRIOR TO THE FILING OF THE MOTION FOR TERMINATION OF SUCH SUPPORT, VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. Appellant contends that her due process rights were violated because she did not have notice that she would be exposed to a liability for any overpayments of spousal support made before the filing of the motion to terminate support. She asserts that appellee did not request that the court order terminating support be retroactive, prior to the date of filing, so she did not have notice. We find that appellee's request for overpayments in his motion to terminate support put appellant on notice of her potential liability. Appellant's due process rights were not violated. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -7- 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 Common Pleas Court -- Domestic Relations Division 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. PORTER, P.J., and McMONAGLE, TIMOTHY E., J., CONCUR. JOSEPH J. NAHRA JUDGE 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 .