COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78400 RACHELLE BRADLEY : : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : RICHARD BRADLEY : OPINION : Defendant-Appellant : Date of Announcement of Decision: JULY 5, 2001 Character of Proceeding: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-238058 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: MARGARET E. STANARD, ESQ. Stanard & Corsi Co., L.P.A. 1370 Ontario Street Suite 748 Cleveland, Ohio 44113 For Defendant-Appellant: ANDREA M. JULIAN, ESQ. THOMAS A. KELLY, ESQ. Foth, Kelly & Urban Co., L.P.A. 11221 Pearl Road Strongsville, Ohio 44136-3344 JAMES J. SWEENEY, J.: Richard Bradley appeals from a judgment of the Domestic Relations Court which granted him a divorce from his ex-wife, Rachelle Bradley, urging that the court improperly calculated the -2- existence and the duration of their marriage in connection with the division of their marital property. After examining the record and the law, we affirm the judgment of the trial court. The history of the case reveals the Bradleys became romantically involved in 1979, and on June 28, 1980, Mrs. Bradley gave birth to their son, Albert. Thereafter, on June 22, 1991, Father John A. Misenko performed a religious marriage ceremony at Saint Bridget's Roman Catholic Church for the Bradleys. However, the parties never obtained a marriage license. Albert and Sister Elizabeth Ann Brady attended the ceremony. On January 3, 1995, Mrs. Bradley filed a complaint for divorce. The court bifurcated the case for the purposes of trial and first heard evidence relating to the existence of a marriage. Numerous witnesses testified the Bradleys lived together and held themselves out to the public as husband and wife. Further, Mrs. Bradley remained at home with her son instead of pursuing gainful employment outside the home. After hearing the evidence, the Magistrate issued a decision, which the trial court later adopted. Mr. Bradley appealed that decision. However, this court dismissed it because it was not a final appealable order. On October 27, 1999, the Magistrate conducted a trial on the remaining issues, granted Mrs. Bradley a divorce, awarded her spousal support and divided the marital property. This time, both parties filed objections to the Magistrate's decision. The trial court adopted that decision and determined the parties were married at common law on June 22, 1991 and the duration of the marriage -3- spanned from October 1979 until July 1995 for the purposes of dividing the marital property. Further, the court ordered Mr. Bradley to pay $1,350.48 per month in spousal support, to provide a joint and survivor annuity for Mrs. Bradley, to give Mrs. Bradley a one-half interest in his New England Fund Account and his Zenith Annuity and to pay her a lump sum amount of $37,754. Additionally, the court ordered Mr. Bradley to pay $10,000 for Mrs. Bradley's attorney fees and to pay off any outstanding credit card and medical expenses. The court also awarded Mrs. Bradley a vehicle and some jewelry. Mr. Bradley appeals from that decision and raises three assignments of error for our review. I. THE TRIAL COURT'S FINDING THAT THE APPELLEE HAD ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT THE PARTIES WERE MARRIED AT COMMON LAW FROM JUNE 22, 1991 THROUGH 1995 IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Mr. Bradley contends he only participated in the wedding ceremony to appease Mrs. Bradley, and he did not agree to marry her in praesenti. Mrs. Bradley counters the court correctly determined a common law marriage existed because Mr. Bradley participated in the religious ceremony, and they held themselves out to the public as husband and wife. Thus, the issue on appeal concerns whether the court abused its discretion when it determined a common law marriage existed between the parties. We begin by noting that an appeal from the domestic relations courtis reviewed under an abuse of discretion standard. The term abuse of discretion connotes more than an error of law or judgment. It implies that the court's attitude is unreasonable, -4- arbitrary or unconscionable. Rock v. Cabral (1993), 67 Ohio St.3d 108, 112; Martin v. Martin (1985), 18 Ohio St.3d 292, 294-295; Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 219. When applying an abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161; Kunkle v. Kunkle(1990), 51 Ohio St.3d 64, 67; Holcomb. v. Holcomb (1989), 44 Ohio St.3d 128, 131. As it relates to common law marriage, in Brooks v. Brooks (April 30, 20001), Warren App. No. CA20000-08-079, unreported, the court stated: Although common-law marriages were prohibited in Ohio by statutory amendment after October 10, 1991, common-law marriages that occurred prior to that date continue to be recognized. R.C. 3105.12(B)(1)(2), Lyon v. Lyon(1993), 86 Ohio App. 3d 580 ***. A common-law marriage is established when the following elements are present: (1) an agreement of marriage in praesenti; (2) cohabitation as husband and wife; and (3) a holding out by the parties to those with whom they normally come into contact, resulting in a reputation as a married couple in the community. ***. Further, in Nestor v. Nestor (1984), 15 Ohio St.3d 143, the court stated: A common law marriage is the marital joinder of a man and a woman without the benefit of formal papers or procedures. Such marriages are not favored in Ohio, but have long been recognized as lawful if certain elements or circumstances are found to be present. (Citations omitted.) * * * The contract of marriage in praesenti may be proven either by way of direct evidence which establishes the agreement, or by way of proof -5- of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside. However, all of the essential elements to a common law marriage must be established by clear and convincing evidence. (Citations omitted.) Wherethere is no direct proof in reference to the formation of the contract of marriage in praesenti, testimony regarding cohabitation and community reputation tends to raise an inference of the marriage. This inference is given more or less strength according to the circumstances of the particular case. The inference is generally strengthened with the lapse of time during which the parties are living together and cohabitating as man and wife. In the instant case, we are faced with a situation where there is no direct evidence of Mr. Bradley's agreement in praesenti to marryMrs. Bradley because the parties failed to obtain a marriage license after the ceremony Father Misenko performed. Mr. Bradley's testimony reveals that he had no intention of marrying her and participated in the ceremony to appease her. The Magistrate heard evidence concerning the duration of their cohabitation, which included the birth of a child, the manner in which they held themselves out to the public and the traditional husband and wife roles that each party assumed rendering Mrs. Bradley financially dependant upon Mr. Bradley. From that evidence, the Magistrate determined a common law marriage existed from June 22, 1991 until July 1995. From that decision, the trial court is vested with the responsibility ofresolving the conflict in the evidence presented, and it decided to adopt the Magistrate's decision. Our review of the record reveals the trial court's determination that a common law -6- marriage existed between the two parties is supported by competent and credible evidence. Consequently, appellant's first assignment of error is overruled. We turn to the second and third assignments of error which both pertain to the division of marital property. They state: II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THAT THE PARTIES WERE INVOLVED IN A SIXTEEN (16) YEAR ECONOMIC PARTNERSHIP FROM 1979 UNTIL 1995 FOR PURPOSES OF DETERMINING DURING THE MARRIAGE. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT IGNORED THE MANDATORY PROVISIONS OF O.R.C. S3150.171(A)(2)(B) [STET] AND FOUND THAT PROPERTY ACQUIRED PRIOR TO THE PARTIES' COMMON LAW MARRIAGE ON JUNE 22, 1991 WAS NEVERTHELESS ACQUIRED DURING THE MARRIAGE AND THUS SUBJECT TO AN EQUITABLE DIVISION OF PROPERTY UNDER STATUTE. Mr. Bradley argues the court abused its discretion when it retroactively applied R.C. 3105.171 and determined the duration of the marriage to be from 1979 to 1995, thereby entitling Mrs. Bradley to substantially more assets than she would be otherwise. Mrs. Bradley counters the court did not abuse its discretion because the date of the divorce, not the marriage, determines when R.C. 3105.171 applies and because the court made an equitable property division. Thus, the issue here concerns whether the court erred when it divided the marital property. We begin by noting that R.C. 3105.171 provides in pertinent part: * * * (2) "During the marriage" means whichever of the following is applicable: (a) Except as provided in division (A)(2)(b) of -7- this section, the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation; (b) If the court determines that the use of either or both of the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, "during the marriage" means the period of time between those dates selected and specified by the court. * * * (C)(1) *** the division of marital property shall be equal. If an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in the manner the court determines equitable. The trial court has broad discretion to determine what is equitable upon the facts and circumstances of each case. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64. There are no set rules for determining the division of marital property. Cherry v. Cherry (1981), 66 Ohio St.2d 348. R.C. 3105.171(A)(2)(b) permits the court to choose an alternative date for during the marriage to effectuate an equitable division of the marital property. Taking into consideration thelength of time the two parties have been together and the fact that Mrs. Bradley was rendered financially dependent upon Mr. Bradley, we cannot conclude the trial court abused its discretion by determining that during the marriage spanned sixteen years or by requiring Mr. Bradley to pay spousal support and to -8- continue to provide for Mrs. Bradley's financial well being. Accordingly, these assignments of error are overruled and the judgment of the trial court is affirmed. Judgment affirmed. -9- It is ordered that appellee recover of appellant her 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 Court of Common Pleas 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. DIANE KARPINSKI, A.J., and KENNETH A. ROCCO, J., CONCUR. JAMES J. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1). .