[Cite as Sieverding v. Sieverding, 2012-Ohio-1238.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
Barbara J. Sieverding
Plaintiff-Appellee : C.A. CASE NO. 24549
vs. : T.C. CASE NO. 98-DM-772
: (Civil Appeal from
Michael J. Sieverding Common Pleas Court,
Defendant-Appellant : Domestic Relations Division)
. . . . . . . . .
O P I N I O N
Rendered on the 23rd day of March, 2012.
. . . . . . . . .
Anne C. Harvey, Atty. Reg. No. 0054585, 2310 Far Hills Avenue,
Dayton, OH 45419
Attorney for Plaintiff-Appellee
Joseph W. Stadnicar, Atty. Reg. No. 0046851, 3836 Dayton-Xenia
Road, Beavercreek, OH 45432
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} This is an appeal from a final order of the domestic
relations court that modified provisions concerning spousal
support in a separation agreement incorporated into a decree of
dissolution.
{¶ 2} On September 18, 1998, Michael and Barbara Sieverding
filed their petition for a decree dissolving their marriage of
thirty years. A separation agreement was submitted in support
of the petition. The separation agreement provides:
{¶ 3} “Petitioner-Husband shall pay spousal support to Wife
in the amount of one thousand dollars ($1,000.00) per month
commencing the month that the final decree is filed and continuing
for a period of twelve (12) years or until the death of either
party or Wife’s remarriage whichever may first occur. The Court
shall retain jurisdiction over the matter of spousal support.”
(Emphasis added.)
{¶ 4} The domestic relations court granted the parties’
petition for dissolution on December 10, 1998. The decree of
dissolution expressly incorporates their separation agreement,
including its spousal support provisions.
{¶ 5} On March 4, 2010, Barbara filed a motion requesting an
increase in both the amount and duration of spousal support Michael
was ordered to pay. Barbara alleged “a change in the financial
circumstances of the parties, as well as due to the conduct of
the Defendant during the dissolution as to disclosure of retirement
accounts, which has only recently become known to Plaintiff.”
(Dkt. 14).
{¶ 6} On February 23, 2011, an Agreed Order, signed by Michael
and Barbara and the magistrate, was filed. The Agreed Order was
approved by the court on that same date. The Agreed Order provides,
in pertinent part:
[Cite as Sieverding v. Sieverding, 2012-Ohio-1238.]
(1) by agreement of the parties, it is hereby
ordered as follows: the Respondent/Husband (Michael)
shall pay $9,000.00 to Movant/Wife (Barbara) as and for
spousal support, payable by March 14, 2011. This
spousal support payment shall be paid directly.
(2) The obligation for spousal support shall
terminate and the court does not retain jurisdiction.
{¶ 7} On March 25, 2011, Michael filed a notice of appeal from
the February 25 Agreed Order. Barbara has not filed a brief as
Appellee.
ASSIGNMENT OF ERROR
{¶ 8} “THE TRIAL COURT, EVEN BY AGREEMENT OF THE PARTIES DOES
NOT HAVE THE AUTHORITY TO TERMINATE THE TRIAL COURT’S CONTINUING
JURISDICTION PREVIOUSLY INVOKED PURSUANT TO REVISED CODE §
3105.18(E).”
{¶ 9} R.C. 3105.18(E) provides, in pertinent part:
If * * * a continuing order for periodic payments
of money as spousal support is entered in a divorce or
dissolution of marriage action that is determined on
or after January 1, 1991, the court that enters the decree
of divorce or dissolution of marriage does not have
jurisdiction to modify the amount or terms of the alimony
or spousal support unless the court determines that the
circumstances of either party have changed and unless
one of the following applies:
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(1) In the case of a divorce, the decree or a
separation agreement of the parties to the divorce that
is incorporated into the decree contains a provision
specifically authorizing the court to modify the amount
or terms of alimony or spousal support.
(2) In the case of a dissolution of marriage, the
separation agreement that is approved by the court and
incorporated into the decree contains a provision
specifically authorizing the court to modify the amount
or terms of alimony or spousal support.
{¶ 10} Michael relies on our holding in Apt v. Apt, 192 Ohio
App.3d 102, 2011-Ohio-380, 947 N.E.2d 1317. Apt involved a decree
of divorce in which monthly payments of spousal support was ordered,
“subject to further jurisdiction of the Court.” Subsequently,
by an agreed order, the court modified the decree to substitute
a lump-sum payment for the periodic payments for which the decree
had provided. The agreed order also provided: “The continuing
jurisdiction of this court over the spousal support is vacated.”
{¶ 11} Several years later, the obligee in Apt filed charges
in contempt concerning the obligor’s failure to maintain a life
insurance policy the obligor had also been ordered to maintain
to secure his support obligation. The domestic relations court
found that termination of the support obligation and revocation
of any continuing jurisdiction on that matter prohibited the court
5
from exercising its jurisdiction to consider the matter of
insurance the obligor had a duty to maintain.
{¶ 12} On review, we held in Apt that the court’s earlier order
vacating its continuing jurisdiction in the matter of spousal
support was ineffective. We wrote:
R.C. 3105.18(E)(2)1 does not operate to allow the
court to create its jurisdiction. That section
functions instead to prevent a loss of jurisdiction that
would otherwise result with journalization of the final
judgment and decree of divorce. While the court’s
stated “reservation” is necessary for that outcome to
occur, the jurisdiction preserved is the product of R.C.
3105.18(E)(2), which represents an exercise of the power
conferred on the General Assembly by Section 4(B),
Article IV, to determine the jurisdiction of the court
of common pleas and its divisions. Just as it cannot
create its own jurisdiction, a court cannot “vacate”
the continuing jurisdiction that R.C. 3105.18(E)(2)
confers. Neither can that power be conferred on the
court by agreement of the parties.
{¶ 13} In Apt, we wrote that the domestic relations court’s
order vacating an order in a prior decree of divorce authorizing
1
The correct reference should have been to R.C.
3105.18(E)(1), Apt being a divorce case.
6
the court to modify the periodic payments of spousal support awarded
in the decree was a “nullity.” Id., at ¶ 16. Our rationale was
that the order was necessarily void because it modified the final
decree itself, as opposed to the “nature, amount, and terms of
payment, and duration of spousal support,” R.C. 3105.18(B), ordered
in the decree.
{¶ 14} We agree that the prohibition against modification of
final orders we discussed in Apt likewise prohibits orders vacating
a provision in a separation agreement incorporated into a decree
of dissolution that authorizes the court to modify an award for
periodic payments of spousal support. Michael contends that the
domestic relations court’s statement in the agreed order that the
court “does not reserve jurisdiction” concerning the lump sum
support its modification ordered could be construed to be such
a prohibited modification. However, while such an order is a
“nullity,” any such error was harmless.
{¶ 15} The authorization which the separation agreement confers
permitted the court to modify Michael’s obligation to make periodic
payments of spousal support and substitute a lump sum spousal
support obligation instead. The practical effect of that
modification was to exclude the possibility of any so-called
reservation of jurisdiction, because R.C. 3105.18(E) applies to
an order for “periodic payments of money as spousal support,” and
therefore does not apply to lump sum awards. R.C. 3105.18(E)(2)
7
could not extend the court’s jurisdiction to modify the lump-sum
award in any event. The court’s apparent intention to reject any
continuing jurisdiction pursuant to R.C. 3105.18(E)(2) to modify
its lump sum award therefore had no force or effect, and while
it was an error, the error was harmless.
{¶ 16} The assignment of error is overruled. The judgment of
the domestic relations court will be affirmed.
FROELICH, J., concurring:
{ 17} The parties were divorced and a final decree of
dissolution was filed in 1998. That final appealable order
provided that the court shall retain jurisdiction over the matter
of spousal support. I understand the surface logic of being
permitted to amend an order which itself gives the court continuing
jurisdiction. However, perhaps excluding Civ.R. 60 relief (which
is not at issue here), neither a court nor the parties ten years
later can change that final appealable order since that would,
almost by definition, retroactively make it something other than
“final.”
{ 18} Therefore, to the extent the 2011 Order purported to
amend the 1998 Order by no longer retaining jurisdiction to modify
spousal support, it was in error; and the court still “retain[s]
jurisdiction over the matter of spousal support.” But, since that
retained jurisdiction was exercised by permitting the spousal
8
support obligation to be satisfied by a lump-sum payment, there
is no further spousal support obligation to which the continuing
jurisdiction applies. Thus, as the majority concludes, the error
is harmless.
HALL, J., concurring,
{ 19} My colleagues conclude that the Domestic Relations
Court could not truncate its previously reserved continuing
jurisdiction over the issue of spousal support, but that the error
was harmless. I agree with that conclusion, although my reasoning
is somewhat different. I write to insure that we do not create
uncertainty about the enforcement of voluntary agreements between
parties.
{ 20} Both husband and wife desired to reduce future periodic
spousal support to a lump sum. Wife’s expectation was that she
would receive a substantial cash payment. Husband’s expectation
was that he would no longer be subject to the potential of future
spousal support. Their agreement should be enforceable. In my view,
inclusion of the language in their Agreed Order that upon payment
of the lump sum “The obligation for spousal support shall terminate
and the court does not retain jurisdiction” may not be sufficient
to alter the once-reserved continuing jurisdiction of the court,
but it does operate as an irrevocable waiver of the wife’s future
ability to later move the court for future spousal support. Thereby,
9
the agreement of the parties is enforceable because, even though
the court may still have jurisdiction, wife cannot successfully
approach the court for an increase.
. . . . . . . . .
Copies mailed to:
Anne C. Harvey, Esq.
Joseph W. Stadnicar, Esq.
Hon. Denise L. Cross