Morris v. Morris (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Morris v. Morris, Slip Opinion No. 2016-Ohio-5002.]

NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.

SLIP OPINION NO. 2016-OHIO-5002
MORRIS, APPELLEE, v. MORRIS, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Morris v. Morris, Slip Opinion No. 2016-Ohio-5002.]
Divorce—Modification of spousal support—Continuing jurisdiction—R.C.
3105.18(E)—A trial court does not have jurisdiction under Civ.R. 60(B) to
vacate or modify an award of spousal support in a decree of divorce or
dissolution when decree does not contain reservation of jurisdiction to
modify award—If parties’ separation agreement, incorporated into a
decree of dissolution, reserves jurisdiction to modify, a party is limited to
seeking relief from judgment under Civ.R. 60(B)(1), (2), or (3) and may
not seek relief under Civ.R. 60(B)(4) or (5)—Court of appeals’ judgment
affirmed.
(No. 2014-0688—Submitted March 24, 2015—Decided July 19, 2016.)
CERTIFIED by the Court of Appeals for Greene County,
No. 2013-CA-29, 2014-Ohio-734.
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KENNEDY, J.
{¶ 1} This case was accepted as a certified conflict between judgments of
the Second District Court of Appeals and the Tenth District Court of Appeals.
The Second District certified the issue in conflict as follows:

“Does a trial court have jurisdiction under Civ.R. 60(B) to vacate
or modify an award of spousal support in a decree of divorce or
dissolution where the decree does not contain a reservation of
jurisdiction to modify the award of spousal support pursuant to
R.C. 3105.18(E)?”

139 Ohio St.3d 1427, 2014-Ohio-2725, 11 N.E.3d 283, quoting 2d Dist. Greene
No. 2013-CA-29 (Apr. 3, 2014).
{¶ 2} The conclusion of the Second District that relief under Civ.R.
60(B)(4) is unavailable is consistent with the Ohio Constitution, the mandates of
the General Assembly, and our precedents. Accordingly, we hold that a trial court
does not have jurisdiction under Civ.R. 60(B) to vacate or modify an award of
spousal support in a decree of divorce or dissolution when the decree does not
contain a reservation of jurisdiction to modify the award of spousal support
pursuant to R.C. 3105.18(E). Moreover, based on our precedents, if the parties’
separation agreement, incorporated into a decree of dissolution, reserves the
jurisdiction of the court to modify, a party is limited to seeking relief from
judgment under Civ.R. 60(B)(1), (2), or (3); a litigant may not seek relief from the
decree under Civ.R. 60(B)(4) or (5). See Knapp v. Knapp, 24 Ohio St.3d 141, 493
N.E.2d 1353 (1986), paragraph two of the syllabus; In re Whitman, 81 Ohio St.3d
239, 245, 690 N.E.2d 535 (1998).
{¶ 3} We therefore answer the certified question in the negative and affirm
the judgment of the Second District Court of Appeals.

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Facts and Procedural History
{¶ 4} On July 25, 2000, appellee, Jill Morris, and appellant, Michael
Morris, jointly filed a petition for dissolution of marriage in the Greene County
Court of Common Pleas. The petition alleged that the parties had been married
since 1985 and had three children born of the marriage. A separation agreement
entered into by the parties was attached and incorporated into the petition. The
separation agreement included the following provision:

The parties agree that the Husband shall pay as and for
spousal support the sum of $1,300.00 a month for [the Wife’s]
lifetime. Said spousal support shall commence with the month a
final decree is rendered herein and continue for until [sic] the Wife
dies or the Husband dies, whichever event occurs first. The Court
shall not have continuing jurisdiction on this subject. For income
tax purposes, the Husband shall NOT claim this spousal support as
support but treat it as property settlement and the Husband shall
pay all the income taxes on same.

{¶ 5} On October 10, 2000, the trial court entered a decree of dissolution
approving and incorporating the separation agreement that the parties had
attached to their petition.
{¶ 6} Less than a year after the dissolution was finalized, appellant filed a
motion for relief from judgment pursuant to Civ.R. 60(B)(1), (3), (4), and/or (5).
Among other matters, the motion requested that the spousal-support order be
vacated. The trial court denied appellant’s motion and stated with respect to
spousal support that “jurisdiction was not retained, as to the amount or the
duration.”

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{¶ 7} On March 22, 2012, almost 11 and a half years after the dissolution
was finalized, the prosecutor’s office filed in the trial court a motion for contempt
of court based in part on appellant’s failure to abide by the spousal-support
provision of the separation agreement. In response, appellant filed a motion for
relief from judgment pursuant to “Civ.R. 60(B)(4) and/or (5),” requesting that the
trial court vacate the award of spousal support in the parties’ separation
agreement.
{¶ 8} Appellant’s motion was based on a series of employment-related
events in his life that caused his annual income to become increasingly lower than
it had been at the time of the dissolution. During the 11 and a half years, his
annual income decreased from about $100,000 to less than $4,000.
{¶ 9} Following a hearing held on the contempt motion, a magistrate
issued two separate decisions and orders, granting the contempt motion and
dismissing appellant’s motion for relief from judgment. In dismissing appellant’s
motion, the magistrate determined that Civ.R. 60(B) relief was not available
because the trial court had not retained jurisdiction to modify the spousal-support
award.
{¶ 10} Overruling appellant’s objections, the trial court adopted the
decision of the magistrate. From that decision, appellant timely appealed to the
Second District Court of Appeals. The court of appeals affirmed the trial court’s
decision as to this issue.
{¶ 11} Thereafter, the Second District granted appellant’s motion to
certify conflict, concluding that its holding in this case was in direct conflict with
the holding of the Tenth District in Noble v. Noble, 10th Dist. Franklin No. 07AP-
1045, 2008-Ohio-4685. We agreed and ordered the parties to brief the issue as
framed by the Second District.

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Analysis
I. Divorce and Dissolution Generally
A. Divorce
{¶ 12} The 1802 Ohio Constitution included no provision for divorce or
spousal support. Dillingham v. Dillingham, 9 Ohio App. 248, 259 (1st
Dist.1917). Instead, the legislature would pass a special act providing for the
divorce of a married couple. Id.
{¶ 13} In 1824, legislation was first enacted vesting this court with
exclusive jurisdiction to grant a divorce when one of the enumerated causes for
divorce was demonstrated. 22 Ohio Laws 341. The act also provided for
custody, child support, and spousal support. Id. Eventually, in 1853, jurisdiction
to grant a divorce was vested in the courts of common pleas. See 51 Ohio Laws
377.
{¶ 14} The divorce statutes have gone through countless iterations since
1824. Today, there are 11 grounds on which divorce may be granted for cause.
See R.C. 3105.01. In resolving a complaint for divorce, a trial court is required to
make a determination of separate property and marital property, a property-
division award, a determination of the allocation of parental rights and
responsibilities and child support, and—after the property is divided—an award
of spousal support, if any. See R.C. 3105.171, 3109.04, 3105.21, and 3105.18.
{¶ 15} The parties may also enter into a separation agreement that fully
resolves all issues or that leaves certain issues for the trial court to determine.
See, e.g., Eddington v. Eddington, 10th Dist. Franklin No. 14AP-572, 2015-Ohio-
1233, ¶ 3. Even if the parties partially or fully settle their divorce, the trial court
can

“find the separation agreement fair, just, and reasonable or
equitable, and incorporate it by reference so that it becomes a part

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of the decree. * * * [It can] reject some of the terms of the
separation agreement, make an independent ruling on those issues,
and incorporate the independent rulings and partial separation
agreement into the decree. * * * [It can] reject the entire
separation agreement and make its own findings regarding the
issues set forth in the complaint. Lastly, the trial court may
acknowledge the existence of a separation agreement, identify it
and attach it to the decree, without incorporating it by reference.
Under these circumstances, the trial court has not repudiated or
rejected the separation agreement, nor has it found the agreement
fair, just, and equitable and incorporated it into the decree. It has
merely acknowledged the separation agreement and attached it as
an exhibit.”

(Ellipses and brackets sic.) (Emphasis deleted.) Welly v. Welly, 55 Ohio App.3d
111, 112-113, 562 N.E.2d 914 (6th Dist.1988), quoting Greiner v. Greiner, 61
Ohio App.2d 88, 99, 399 N.E.2d 571 (8th Dist.1979).
B. Dissolution
{¶ 16} In 1974, the General Assembly enacted provisions making
dissolution of marriage permissible through a no-fault divorce proceeding.
Am.Sub.H.B. No. 233, 135 Ohio Laws, Part II, 603, 615-616. An “[a]greement
between the spouses [was] the linchpin of the procedure.” In re Adams, 45 Ohio
St.3d 219, 220, 543 N.E.2d 797 (1989).
{¶ 17} A petition for dissolution must be signed by both spouses and
incorporate a separation agreement agreed to by both spouses. R.C.
3105.63(A)(1). The separation agreement must provide for the division of all
property, spousal support, and—if there are minor children of the marriage—a

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resolution of all issues pertaining to the allocation of parental rights and
responsibilities and child support. Id.
{¶ 18} The trial court has limited authority at the dissolution hearing. See
R.C. 3105.65. The court has no unilateral authority to modify any provision of
the separation agreement. See R.C. 3105.65(A); Adams at 219. If the parties are
“satisfied with the separation agreement” and “wish a dissolution of the marriage”
and the court approves the agreement, then the court must grant “a decree of
dissolution * * * that incorporates the separation agreement.” See R.C.
3105.65(A) and (B). The separation agreement then becomes “a binding contract
between the parties.” Adams at 220.
II. Spousal Support Generally
A. Divorce versus Dissolution—The Trial Court’s Authority to Award
Spousal Support
{¶ 19} The distinctions between divorce and dissolution in the context of
spousal support were succinctly stated by the Tenth District Court of Appeals in
Alban v. Alban, 1 Ohio App.3d 146, 147-148, 439 N.E.2d 963 (10th Dist.1981):

In a divorce case, where a divorce is granted, not only may the trial
court reject, predicated upon sufficient evidence, a separation
agreement entered into by the parties as being unfair, but the court
may make its own determination predicated upon sufficient
evidence as to the need for and amount of periodic alimony
payments to be made by one spouse to the other. In other words,
in a divorce case, the matter of periodic alimony payments is one
for determination by the court.
In a dissolution of marriage proceeding, however, the court
has no jurisdiction to grant a dissolution unless the parties have
entered into a separation agreement either providing for alimony or

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providing that none shall be paid, which shall be incorporated into
the dissolution agreement if approved by the trial court. There can
be no decree of dissolution unless there is a separation agreement
voluntarily agreed to by the parties and approved by the trial court.
The trial court has no power to determine the amount of periodic
alimony payments as the court would have in a divorce case, but,
instead, this is a matter for a voluntary agreement between the
parties.

B. Divorce versus Dissolution—The Trial Court’s Authority to Modify a
Spousal-Support Award
1. Divorce
{¶ 20} Prior to legislative enactments, a trial court’s authority to modify
an award of spousal support was controlled by common law. In Olney v. Watts,
this court examined the authority of a trial court to modify a divorce decree
awarding spousal support when the decree was silent as to that issue. 43 Ohio St.
499, 507, 3 N.E. 354 (1885). The Olney court concluded that whether a trial court
had the authority to modify depended on whether the decree was in the nature of
spousal support or part of the parties’ agreement dividing property. Id. at 508.
We remanded for the trial court to make that determination but held that if the
spousal-support award was for ongoing support, then the obligation was subject to
modification upon a change in the circumstances of the parties. Id. at 508-509.
{¶ 21} In considering a spousal-support agreement 16 years later in Law v.
Law, this court held that absent “fraud or mistake,” the parties’ agreement was not
subject to modification. 64 Ohio St. 369, 60 N.E. 560 (1901), syllabus.
Reaffirming Law, this court in Newman v. Newman held that absent “mistake,
misrepresentation or fraud,” a spousal-support decree based on an agreement

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between the parties was not subject to modification by the court. 161 Ohio St.
247, 118 N.E.2d 649 (1954), syllabus, citing Law.
{¶ 22} In 1959, this court held that the equitable power of the trial court
may be invoked to modify a spousal-support award when a wife remarries, even
though the parties had agreed to a nonterminable award of spousal support that
was not part of a division of property and did not reserve jurisdiction in the trial
court to modify. Hunt v. Hunt, 169 Ohio St. 276, 159 N.E.2d 430 (1959),
paragraphs one and two of the syllabus.
{¶ 23} In Wolfe v. Wolfe, this court traced the foregoing historical
development of the common law granting trial courts authority to modify an
award of spousal support on certain conditions when the parties’ agreement was
silent. 46 Ohio St.2d 399, 415-416, 350 N.E.2d 413 (1976). Relying on that
common law, the Wolfe court held that when a spousal-support award based on an
agreement between the parties is not part of the property division and the decree
provides that the remarriage or death of the spouse to whom support is awarded
will terminate the support, there is an “implied” reservation of jurisdiction in the
trial court to modify the award. Id.
{¶ 24} In response to Wolfe, the General Assembly enacted former R.C.
3105.18(D), Am.Sub.H.B. No. 358, 141 Ohio Laws, Part II, 3388, 3389, as
explained in Part D below. Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433,
2009-Ohio-1222, 905 N.E.2d 172, ¶ 24.
2. Dissolution
{¶ 25} As noted above, the ability of the parties to dissolve their marriage
was statutorily created in 1974. Am.Sub.H.B. No. 233, 135 Ohio Laws, Part II,
603, 615-616. In that same act, the General Assembly authorized the trial court to
“enforce its decree” and provided that the court “retains jurisdiction to modify all
matters of custody, child support, visitation, and periodic alimony payments.”
(Emphasis added.) Id. at 616. One year later, in 1975, the General Assembly

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restricted the court’s ability to modify an award of spousal support when it
amended the 1974 statute and removed the words “and periodic alimony
payments.” Am.H.B. No. 370, 136 Ohio Laws, Part II, 2451, 2452.
{¶ 26} In 1986, the General Assembly amended R.C. 3105.65(B),
reinstating the trial court’s authority to modify an award of spousal support but
“only in accordance with [former R.C. 3105.18(D)(2)],” which is quoted below.
Am.H.B. No. 358, 141 Ohio Laws, Part II, 3388, 3390.
C. Death of the Common Law—Former R.C. 3105.18(D)
{¶ 27} In the same 1986 act, the General Assembly enacted former R.C.
3105.18(D)—the predecessor to R.C. 3105.18(E)—a single provision addressing
modification of a spousal-support award, whether contained in a decree of divorce
or of dissolution. 141 Ohio Laws, Part II, at 3389. In doing so, the General
Assembly “manifested its intent to eliminate any distinction between the two
types of * * * decrees” that operate to terminate a marriage. Crouser v. Crouser,
39 Ohio St.3d 177, 181, 529 N.E.2d 1251 (1988). Former R.C. 3105.18(D)
provided:

If a continuing order for periodic payments of money as
alimony is entered in a divorce or dissolution of marriage action
that is determined on or after the effective date of this amendment,
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 unless the court determines that the circumstances
of either party have changed and unless one of the following
applies:
(1) In the case of a divorce, the decree or a separation
agreement of the parties to the divorce that is incorporated into the

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decree contains a provision specifically authorizing the court to
modify the amount or terms of alimony.
(2) In the case of a dissolution of a 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.

141 Ohio Laws, Part II, at 3389. In 1991, when the General Assembly
redesignated former R.C. 3105.18(D) as R.C. 3105.18(E), it merely clarified that
the statute applied to awards of spousal support as well as awards of alimony. See
Am.Sub.H.B. No. 514, 143 Ohio Laws, Part III, 5426, 5457.
{¶ 28} In Mandelbaum, we acknowledged that the General Assembly had
enacted former R.C. 3105.18(D), the predecessor to R.C. 3105.18(E), in response
to Wolfe:

[w]hile [former R.C. 3105.18(D)] codified the common-law
requirement of a change in circumstances, its foremost purpose
was to declare that a trial court lacks jurisdiction to modify the
amount or terms of an order of spousal support unless a provision
in either the divorce decree or the separation agreement
incorporated into the decree of divorce or dissolution specifically
authorizes modification.

121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172, at ¶ 24. Therefore, the
General Assembly swept away all the common law enunciated in Wolfe, including
this court’s holding in Law that a trial court had the authority to modify a spousal-
support award if there was fraud or mistake even though the decree did not
reserve jurisdiction, 64 Ohio St. 369, 60 N.E. 560, and this court’s holding in

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Newman that a trial court had the authority to modify a spousal-support award if
there was “mistake, misrepresentation or fraud” even though the decree did not
reserve jurisdiction. 161 Ohio St. 247, 118 N.E.2d 649, at syllabus.
D. Substantive Law versus Procedural Rule
{¶ 29} Adopted by this court in 1970, Civ.R. 60 is a rule of procedure that
allows a party to seek relief from a judgment on a number of grounds. Civ.R.
60(B)(1) permits relief from a judgment for, among other reasons, “mistake,” and
Civ.R. 60(B)(3) permits relief from a judgment for, among other reasons, “fraud
[and] * * * misrepresentation.” Civ.R. 60(B)(4) permits relief if “it is no longer
equitable” to enforce the judgment, and Civ.R. 60(B)(5) permits relief for “any
other reason justifying relief.”
{¶ 30} While the 1968 Modern Courts Amendment, which added Article
IV, Section 5(B) to the Ohio Constitution, conferred authority on this court “to
promulgate rules relating to matters of procedure in courts of Ohio * * * the right
to establish the substantive law in Ohio remained with the legislative branch.”
Havel v. Villa St. Joseph, 131 Ohio St.3d 235, 2012-Ohio-552, 963 N.E.2d 1270,
¶ 2. “Procedural rules promulgated pursuant to the Modern Courts Amendment
supersede conflicting statutes that affect procedural matters but ‘cannot abridge,
enlarge, or modify any substantive right.’ ” Id., quoting Ohio Constitution,
Article IV, Section 5(B).
{¶ 31} In Crouser, this court held that R.C. 3105.18 is the substantive law
that controls whether a trial court has authority to modify an award of spousal
support. 39 Ohio St.3d at 178, 529 N.E.2d 1251. R.C. 3105.18(E) permits a trial
court to modify a periodic payment of spousal support only if the decree of
divorce or dissolution specifically provides for that authority.
{¶ 32} In contrast, Civ.R. 60(B) permits relief from a judgment under the
circumstances enumerated in the rule. The requirements of the rule are not the
same as the requirements of R.C. 3105.18(E). Therefore, the application of

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Civ.R. 60(B) to modify an award of spousal support enlarges the substantive right
conferred in R.C. 3105.18(E). The Modern Courts Amendment does not confer
upon this court the authority to resurrect through a procedural rule a common-law
remedy that was expressly superseded by the General Assembly in a statutory
enactment. The General Assembly is the sole body responsible for the
establishment of substantive law, and we cannot “ ‘abridge, enlarge, or modify
any substantive right.’ ” Havel at ¶ 2, quoting Ohio Constitution, Article IV,
Section 5(B).
III. Case Law Regarding Modification of a Spousal-Support Award
{¶ 33} It is impossible to correctly answer the certified question without
examining four decisions of this court. These precedents support the conclusion
that Civ.R. 60(B) cannot be used to contravene the substantive law enacted by the
General Assembly.
A. McClain v. McClain
{¶ 34} In 1984, in a certified-conflict case, this court considered whether a
trial court may modify a provision for periodic spousal support contained within a
dissolution-of-marriage decree. McClain v. McClain, 15 Ohio St.3d 289, 290,
473 N.E.2d 811 (1984). The McClain court held that the trial court lacked
jurisdiction to modify the award of spousal support. Id. at 291. “Just as a court
lacks authority to set the original amount of alimony payments in a dissolution
case, a court also lacks authority to modify the amount of alimony payments
originally agreed to by the parties.” Id. at 290.
{¶ 35} Tracing the history of R.C. 3105.65(B) and the General
Assembly’s amendment deleting the phrase “and periodic alimony payments”
from the modification statute, the McClain court reasoned “from this deletion that
the legislature specifically intended that a court would not retain jurisdiction to
modify periodic alimony payments provided for in a separation agreement
incorporated in a decree of dissolution of marriage.” Id. at 290-291.

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B. Knapp v. Knapp
{¶ 36} Two years later, this court considered Knapp, 24 Ohio St.3d 141,
493 N.E.2d 1353. The Knapps were granted a dissolution, and the trial court
ordered their separation agreement incorporated into the decree of dissolution.
The separation agreement provided for the payment of spousal support and
contained a specific provision acknowledging that the parties had “freely and
voluntarily” entered into the agreement with the intention to be bound and that
“[n]o modification or waiver of any of the terms” would be valid absent a written
agreement signed by both parties. Id. at 42.
{¶ 37} Almost five years later, Mr. Knapp’s obligation of spousal support
had lapsed into arrears, and Ms. Knapp filed a motion in contempt. In response to
the motion for contempt, Mr. Knapp sought relief from judgment pursuant to
Civ.R. 60(B)(4).
{¶ 38} The issue presented was whether this court’s decision in McClain
that a trial court does not have jurisdiction to modify a provision for spousal
support in a decree of dissolution may be “circumvented by a motion filed
pursuant to Civ.R. 60(B)(4).” Knapp at 142. The lead opinion in Knapp noted
that resolution of the issue required consideration of the “two competing
principles” of “finality” and “perfection”: “Finality requires that there be some
end to every lawsuit, thus producing certainty in the law and public confidence in
the system[ ] * * *. Perfection requires that every case be litigated until a perfect
result is achieved.” Id. at 144-145. Typically, the lead opinion in Knapp noted,
finality is placed above perfection in the “hierarchy of values.” Id. at 145, citing
Kane, Relief from Federal Judgments: A Morass Unrelieved by a Rule, 30
Hastings L.J. 41 (1978). Recognizing that Civ.R. 60(B) strikes a balance between
these two principles, the lead opinion observed that “courts [have] broad, but not
unlimited authority to set aside judgments.” Id. at 145.

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{¶ 39} The lead opinion in Knapp rejected Mr. Knapp’s argument that he
was entitled to relief pursuant to Civ.R. 60(B)(4) because it was “ ‘no longer
equitable that the judgment should have prospective application’ ” due to his
diminished financial condition and lack of understanding of the settlement
agreement. Knapp, 24 Ohio St.3d at 145, 493 N.E.2d 1353, quoting Civ.R.
60(B)(4). “It would be inequitable not to give the alimony provision prospective
enforcement,” the lead opinion reasoned: “As the United States Supreme Court
has stated, ‘* * * [t]here must be an end to litigation someday, and free,
calculated, deliberate choices are not to be relieved from.’ ” (Emphasis and
ellipsis sic.) Id. at 145, quoting Ackerman v. United States, 340 U.S. 193, 198, 71
S.Ct. 209, 95 L.Ed. 207 (1950). Additionally, the lead opinion noted that “any
modification of the * * * separation agreement, other than one permitted by the
Revised Code, would be inequitable because it would require the court to set aside
the dissolution, and restore the marriage.” Id., citing Ashley v. Ashley, 1 Ohio
App.3d 80, 83, 439 N.E.2d 911 (8th Dist.1981).
{¶ 40} The lead opinion in Knapp also recognized the perils of permitting
Civ.R. 60(B) relief:

A decision, contrary to the one we make today, would open
a veritable Pandora’s box of problems. For instance, litigants,
armed with the knowledge that Civ.R. 60(B)(4) would relieve them
of the consequences of their voluntary, deliberate choices, would
be encouraged to litigate carelessly. Judgment winners would be
unable to rely on their victories. Those financially able to do so
could crush their less affluent adversaries under a pile of Civ.R.
60(B)(4) motions. All of this would be a subversion of judicial
economy and an opening of the proverbial floodgates, causing

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Ohio’s courts to drown in a sea of duplicative, never-ending
litigation.

Knapp at 145-146.
{¶ 41} Accordingly, a majority of the Knapp court foreclosed Civ.R.
60(B)(4) as a vehicle to modify an award of spousal support that is contained in a
decree of dissolution: “The ‘* * * it is no longer equitable * * *’ clause of Civ.R.
60(B)(4) will not relieve a litigant from the consequences of his voluntary,
deliberate choice to enter into a separation agreement in a dissolution of marriage
proceeding.” (Ellipsis sic.) Knapp at paragraph two of the syllabus.1
C. Crouser v. Crouser
{¶ 42} In Crouser, we considered whether a trial court had jurisdiction
pursuant to Civ.R. 60(B)(4) or (5) to vacate a spousal-support award that had been
incorporated into a divorce decree. 39 Ohio St.3d 177, 529 N.E.2d 1251.
Importantly, the Crouser court characterized the issue before it as a “choice
between use of substantive law adopted by the General Assembly through R.C.
3105.18 and 3105.65, and use of a procedural mechanism provided by this court
under Civ.R. 60(B)(4) and (5).” Id. at 178. Quoting Article IV, Section 5(B) of
the Ohio Constitution, the court stated, “[W]hen the General Assembly expresses
its intent, procedural rules may ‘not abridge, enlarge, or modify any substantive
right.’ ” Id., citing State v. Slatter, 66 Ohio St.2d 452, 454, 423 N.E.2d 100
(1981). As the Crouser court correctly held:

The issue before us—modification of a periodic alimony award—
falls within that body of law traditionally denominated as
substantive, since the authority to grant or modify an alimony
award in a divorce proceeding is provided under R.C. 3105.18.
1
Justice Locher, who did not join the lead opinion in Knapp, did join the syllabus.

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The standards or requirements established by the General
Assembly under this substantive law will control since the
legislature has specifically provided, by statute, mechanisms for
review and modification of periodic sustenance alimony awards.
In contrast, Civ.R. 60(B)(4) is a procedural mechanism which
allows parties to seek relief from judgments that are unmodifiable
through substantive law.

Id. at 178-179.
{¶ 43} While Crouser involved the modification of a spousal-support
award contained in a decree of divorce, the court found the situation in Knapp
“analogous.” Crouser at 179. Accordingly, the court concluded that substantive
law controlled the modification of a spousal-support award contained in a divorce
decree: “The mechanism for review and modification of an alimony award is
properly under the substantive law of R.C. 3105.18.” Id. at 181. The court
therefore ordered that the spousal-support award be reinstated. Id.
D. In re Whitman
{¶ 44} The final case that it is necessary to examine for a proper resolution
of the issue before us today is Whitman, 81 Ohio St.3d 239, 690 N.E.2d 535. In
Whitman, this court considered whether a trial court may modify a property
division pursuant to Civ.R. 60(B) when the parties’ separation agreement, which
contained the property division and which was incorporated into the decree of
dissolution, expressly provided that the agreement may be modified by the court.
{¶ 45} In Whitman, the separation agreement provided that “ ‘[t]his
Agreement shall not be altered, modified, or amended unless it is done so in
writing, signed by both parties, or by Court Order.’ ” Id. at 239, quoting the
separation agreement. Five months later, Mrs. Whitman filed a motion for relief
from judgment under Civ.R. 60(B)(1), (3), and (5), seeking to vacate the entire

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dissolution on the basis that “there were substantial omissions, mistakes, and
misstatements in the separation agreement.” Id. at 240. During the pendency of
the motion for relief from judgment, Mr. Whitman remarried.
{¶ 46} Relying on the language “or by Court Order” of the separation
agreement, we held that when “the parties have incorporated into the separation
agreement a clause that allows the court to modify the agreement * * * the court
has continuing jurisdiction to enforce this clause.” Id. at 244. Because the parties
had specifically reserved to the court jurisdiction to modify, “Civ.R. 60(B) is an
appropriate procedural vehicle for requesting relief from a judgment * * * [and]
the trial court may, in its discretion, elect to modify the property division rather
than vacate the entire decree.” Id. at 245. However, the Whitman court stressed
that

[i]n order to further promote finality in dissolution proceedings,
today’s holding is limited to motions brought under Civ.R.
60(B)(1), (2), and (3). This limitation, in effect, provides
permanency to any dissolution that has remained unchallenged for
one year. Civ.R. 60(B). Further, it preserves the rights of the
moving party to [seek] Civ.R. 60(B) relief without sacrificing the
general finality of a dissolution decree and without creating any
undue hardship for the opposing party. By limiting our holding in
this way, we also remain consistent with our holding in Knapp * *
*, which precluded a party from using the “it is no longer
equitable” clause of Civ.R. 60(B)(4) to modify a decree of
dissolution that was entered into voluntarily.

Id.

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IV. The Holding in Noble v. Noble Lacks Support in Our Precedents
{¶ 47} A thorough examination of the conflict case Noble, 2008-Ohio-
4685, reveals that the Tenth District Court of Appeals did not consider Crouser
and that the law underpinning the Tenth District’s holding—namely, a decision of
the Eleventh District Court of Appeals—resurrected the common law as it existed
in 1983.
{¶ 48} In both Crouser and Noble, the movant attempted to vacate a
spousal-support award contained in a decree of divorce relying on a provision of
Civ.R. 60(B) when there was no provision granting the court authority to modify.
Crouser, 39 Ohio St.3d at 179, 529 N.E.2d 251 (movant sought relief under
Civ.R. 60(B)(4) or (5)); Noble at ¶ 2-4 (movant sought relief under Civ.R.
60(B)(3)). The only material difference between Crouser and Noble was that the
court determined the award of spousal support in Crouser, whereas in Noble, the
parties’ separation agreement, which was incorporated into the divorce decree,
provided for spousal support. See Crouser at 177; Noble at ¶ 2.
{¶ 49} This court decided Crouser 20 years prior to the Tenth District’s
decision in Noble. Without distinguishing or even citing Crouser, the Noble court
extended an artificial distinction between the terms “modif[y] or terminat[e]” in
R.C. 3105.18(E) and “vacat[e]” in Civ.R. 60(B) by relying on Crawford v.
Crawford, 11th Dist. Portage No. 2004-P-0065, 2005-Ohio-2360. See Noble at
¶ 17-18. However, this reliance was misguided.
{¶ 50} In Crawford, the Eleventh District held that a party who seeks
relief from a judgment pursuant to Civ.R. 60(B) does “not rely upon a court’s
continuing jurisdiction * * * but, rather, a court’s authority * * * to vacate its own
judgment.” Crawford at ¶ 22. In reaching this conclusion, the Crawford court
relied on McKinnon v. McKinnon, 9 Ohio App.3d 220, 221, 459 N.E.2d 590 (10th
Dist.1983), which had held that “ ‘Civ.R. 60(B) is different from the continuing
jurisdiction of a court of domestic relations * * *. Civ.R. 60(B) is a procedure for

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granting relief from a judgment not otherwise modifiable.’ ” (Ellipsis sic.)
Crawford at ¶ 22, quoting McKinnon at 221. However, the Crawford court’s
reliance on McKinnon was unwarranted.
{¶ 51} McKinnon was decided in 1983 and interpreted the common law
that was in effect at that time.2 Three years after that decision, the General
Assembly displaced the common law by enacting former R.C. 3105.18(D), 141
Ohio Laws, Part II, at 3389. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222,
905 N.E.2d 172, at ¶ 24. In 1988, this court decided Crouser, holding that “[t]he
mechanism for review and modification of an alimony award is properly under
the substantive law of R.C. 3105.18.” 39 Ohio St.3d at 181, 529 N.E.2d 1251.
Therefore, the Tenth District’s holding in Noble is unreasonable and without
foundation in the law.
{¶ 52} Moreover, in a divorce proceeding, the trial court is required to
ensure that a spousal-support obligation is in accord with R.C. 3105.18(C)(1),
which requires a determination of the “nature, amount, and terms of payment, and
duration of spousal support.” In a proceeding for dissolution, the parties are
required to comply with R.C. 3105.63 when drafting their separation agreement.
{¶ 53} In the realm of domestic-relations law, “modification order” has a
particular meaning:

[a] post-divorce order that changes the terms of child support,
custody, visitation, or alimony. A modification order may be
agreed to by the parties or may be ordered by the court. The party
wishing to modify an existing order must show a material change

2
Interestingly, the author of McKinnon interpreting the common law in effect in 1983 would later
become the author of this court’s 1988 majority opinion in Crouser, former Chief Justice Thomas
J. Moyer.

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 January Term, 2016

in circumstances from the time when the order sought to be
modified was entered.

Black’s Law Dictionary 1157 (10th Ed.2014). Accordingly, vacating an order
that awards spousal support is a modification of the award in domestic-relations
parlance. “Modify” in R.C. 3105.18(E) expresses the particular meaning of the
term in domestic-relations law and encompasses any action taken to change the
nature, amount, terms of payment, and duration of the spousal support, including
vacating the award. See R.C. 1.42.
{¶ 54} This is exemplified in Crouser. When considering whether a trial
court had jurisdiction under Civ.R. 60(B)(4) or (5) to vacate an award of spousal
support, this court stated, “The issue before us—modification of a periodic
alimony award—falls within that body of law traditionally denominated as
substantive, since the authority to grant or modify * * * is provided under R.C.
3105.18.” 39 Ohio St.3d at 178, 529 N.E.2d 1251. In denying the requested
relief from judgment to vacate the award, we stated, “The mechanism for review
and modification of an alimony award is properly under the substantive law of
R.C. 3105.18.” Id. at 181. Accordingly, when an award is vacated, it is a
modification of the order, and a modification of an order is governed by the
substantive law of R.C. 3105.18. See also Knapp, 24 Ohio St.3d 141, 493 N.E.2d
353.
V. The Trial Court Lacks Jurisdiction to Vacate the Dissolution Decree
{¶ 55} The Crouser court engaged in a thoughtful discussion of the
interplay between substantive law and procedural rules, concluding that Civ.R.
60(B) may not operate to vacate an award of spousal support, because the only
proper mechanism to modify such an award is the substantive law—i.e., R.C.
3105.18. Crouser at 178-179, 181. Nothing has changed since this court’s
decision in Crouser.

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{¶ 56} Our precedent therefore establishes that substantive law controls
the issue of when a trial court has jurisdiction to modify a spousal-support award
contained in a decree of divorce or dissolution. R.C. 3105.18(E) is “ ‘that body of
law which creates, defines and regulates the rights of the parties,’ ” to modify an
award of spousal support. Havel, 131 Ohio St.3d 235, 2012-Ohio-552, 963
N.E.2d 1270, at ¶ 16, quoting Krause v. State, 31 Ohio St.2d 132, 285 N.E.2d 736
(1972), paragraph one of the syllabus, overruled on other grounds by
Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31, 426 N.E.2d 784
(1981).
{¶ 57} In R.C. 3105.18(E), the General Assembly has established the
limits of a trial court’s jurisdiction to modify an award of spousal support. And a
party’s request for modification falls within those statutory limits only if the
parties agree or the court orders that jurisdiction be reserved. In other words, the
trial court must first determine whether the decree of divorce or dissolution
contains a reservation of jurisdiction. If the trial court lacks jurisdiction to
modify, then the inquiry of the court ends there. To permit a trial court to
exercise jurisdiction on the authority of Civ.R. 60(B) in the absence of a
reservation of jurisdiction would make the force of the procedural rule greater in
scope than the substantive right the General Assembly established in R.C.
3105.18(E). Because Civ.R. 60(B) is a procedural rule, it cannot override the
substantive law of R.C. 3105.18(E). See Ohio Constitution, Article IV, Section
5(B).
{¶ 58} There are two problematic issues that would result from a contrary
conclusion. The first is the effect of granting a Civ.R. 60(B) motion in a
dissolution action. The statement of the lead opinion in Knapp is just as true
today as it was then—“any modification of [a] separation agreement, other than
one permitted by the Revised Code, would be inequitable because it would
require the court to set aside the dissolution, and restore the marriage.” Knapp, 24

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 January Term, 2016

Ohio St.3d at 145, 493 N.E.2d 1353, citing Ashley, 1 Ohio App.3d at 83, 439
N.E.2d 911. Moreover, the exception announced in Whitman has no application
here. In Whitman, the parties’ agreement, which was incorporated into the decree
of dissolution, reserved jurisdiction in the trial court. 81 Ohio St.3d at 245, 690
N.E.2d 535. Because the parties had agreed that the trial court had continuing
jurisdiction to modify the decree, the court had the authority to “elect to modify
the property division rather than vacate the entire decree.” Id.
{¶ 59} In the case before us today, jurisdiction to modify the decree was
not reserved in the trial court. Therefore, if we reversed the court of appeals’
judgment and upon remand, the trial court determined that appellant was entitled
to relief under Civ.R. 60(B), then the court would be required to vacate the decree
of dissolution and restore the marriage, which was terminated nearly 16 years ago.
This would be antithetical to our principle of the finality of judgments, which
ensures “certainty in the law and public confidence in the system’s ability to
resolve disputes.” Knapp at 144-145.
{¶ 60} The second problem that would be created by a conclusion contrary
to that which we reach today would be the Pandora’s box that was warned against
in Knapp. Those with foreknowledge of Civ.R. 60(B)(4) or (5) would be
encouraged to litigate carelessly. Those financially able to afford continuing
litigation would have the opportunity to bury their ex-spouse in a mountain of
filings. Litigants would be able to attempt to relieve themselves of the financial
burden of spousal-support awards, many of which were voluntary, deliberate
choices.
{¶ 61} We have long recognized that a trial court has no unilateral
authority to modify any provision of a separation agreement filed with a petition
of dissolution that is later incorporated into a decree of dissolution. See Adams,
45 Ohio St.3d 219, 543 N.E.2d 797; R.C. 3105.65(A). To echo the lead opinion
in Knapp, appellant’s position would lead to “a subversion of judicial economy

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and an opening of the proverbial floodgates, causing Ohio’s courts to drown in a
sea of duplicative, never-ending litigation.” 24 Ohio St.3d at 145-146, 493
N.E.2d 1353.
{¶ 62} It has been nearly 28 years since this court announced its holding in
Crouser that Civ.R. 60(B), a procedural rule, cannot override the substantive law
of R.C. 3105.18. Since that time, the General Assembly has not amended R.C.
3105.18(E) to confer upon the trial court jurisdiction to modify a continuing
obligation of spousal support when there is fraud, mistake, or misrepresentation.
Perhaps the General Assembly is not inclined to do so because it knows that under
the statutory scheme that it has enacted, in an action for divorce, a trial court
always has discretionary authority to order the inclusion of a modification
provision, even when the parties have reached their own full or partial agreement,
see Welly, 55 Ohio App.3d at 112-113, 562 N.E.2d 914, citing Greiner, 61 Ohio
App.2d 99, 399 N.E.2d 571, and because in an action for dissolution, courts
should respect the parties’ exclusive agreement on how to disentangle their family
and financial affairs, see R.C. 3105.65. Absent legislative action, the authority of
Crouser stands.
Conclusion
{¶ 63} The conclusion of the Second District Court of Appeals that relief
under Civ.R. 60(B)(4) is unavailable in this case is consistent with the Ohio
Constitution, the mandates of the General Assembly, and our holdings in
McClain, 15 Ohio St.3d at 290, 473 N.E.2d 811, Knapp, Crouser, and Whitman.
Accordingly, we hold that a trial court does not have jurisdiction under Civ.R.
60(B) to vacate or modify an award of spousal support in a decree of divorce or
dissolution when the decree does not contain a reservation of jurisdiction to
modify the award of spousal support pursuant to R.C. 3105.18(E). Moreover, in
accordance with our precedents, if the parties’ separation agreement, incorporated
into a decree of dissolution, reserves the jurisdiction of the court to modify, a

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party is limited to seeking relief from judgment under Civ.R. 60(B)(1), (2), or (3);
a litigant may not seek relief from the decree under Civ.R. 60(B)(4) or (5). See
Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353, at paragraph two of the syllabus;
Whitman, 81 Ohio St.3d at 245, 690 N.E.2d 535.
{¶ 64} We therefore answer the certified question in the negative and
affirm the judgment of the Second District.
Judgment affirmed.
PFEIFER, O’DONNELL, LANZINGER, and BALDWIN, JJ., concur.
O’CONNOR, C.J., concurs in judgment only.
O’NEILL, J., dissents in an opinion.
CRAIG R. BALDWIN, J., of the Fifth Appellate District, sitting for FRENCH,
J.
_________________
O’NEILL, J., dissenting.
{¶ 65} In vacating a spousal-support award under Civ.R. 60(B), a court is
not relying on its continuing jurisdiction under domestic-relations law but, rather,
on its authority to vacate its own judgment. Civ.R. 60(B) recognizes the inherent
power of all courts, including domestic-relations courts, to relieve a person of the
unjust operation of a judgment entered by that court.
{¶ 66} In this case, there is a court order that, without question, has
become unjust in its application, and I refuse to believe that by statute the
legislature can simply say, “Tough.” This is not child support. It is spousal
support, and it is forever. Is justice served by taking a hard-line approach and
holding that no matter what happens to these two people financially for the rest of
their lives, this order can never be changed? That is not justice, it is vengeance.
And as a judge, I believe it is wrong for my signature to perpetuate an injustice;
therefore, I must dissent from the well-written but mistaken majority opinion.

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{¶ 67} We are talking about a person’s financial ruin and a former spouse
using the court system to say, “We don’t care.” In short, I think it is wrong to
base our ability to do justice on whether the phrase “the court shall retain
jurisdiction” happens to have been included in the original judgment. The
domestic-relations court should always be responsive enough within the support
context to adjust an order as justice requires. Otherwise, why not have formulaic
computer robots review the facts of every case? The job of a judge is to ensure
that justice prevails. That did not happen here, and as a matter of law, I would
hold that all judges in Ohio have the authority to utilize Civ.R. 60(B) when they
determine that a miscarriage of justice is happening with the aid of their signature.
{¶ 68} Based on the foregoing analysis, I respectfully dissent.
_________________
Flanagan, Lieberman, Hoffman & Swaim, and Richard Hempfling, for appellant.
_________________

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