concurring in part and dissenting in part. Since I believe that a domestic relations court has an implied reservation of jurisdiction to modify inequitable and/or unconscionable sustenance awards in a divorce decree, I must dissent with regard to the second issue. Justice is not served by the inflexible analysis of the majority. I do, however, concur with the resolution of the first issue.
The majority relies heavily on paragraph two of the syllabus in Wolfe v. Wolfe (1976), 46 Ohio St. 2d 399 [75 O.O.2d 474], in distinguishing Wolfe from the instant case. In my opinion, Wolfe is not distinguishable, and applies to permit a modification herein. Prior to reciting paragraph two of the syllabus in the opinion, the Wolfe court states at 418-419:
“It is self-evident that a separation agreement, which purports to set a fair level of alimony for sustenance, as well as divide and distribute the property of the parties and settle their affairs, is not necessarily continually fair and equitable thereafter. We may assume that it is fair at the moment of its execution, and that it continues to be fair at the time of divorce if the parties offer it for inclusion and merger into the decree. At that point, all that can be said is that it sets a fair and equitable ‘initial level’ of obligations.
“Such initially fair agreements may be rendered manifestly oppressive in countless situations, such as where the * * * economic situation of either or both of the parties drastically changes. The holding of this case, that a court has continuing modification jurisdiction over alimony for sustenance awards, is to assure that such awards are continually just.” (Emphasis added.)
Unquestionably, this implied reservation of jurisdiction is found only *338for “indefinite” sustenance awards. In Wolfe, the $35,000 per year award was found to be “indefinite” for the following reason:
“Further, we view the alimony award as indefinite, even though provision is made for termination upon appellee’s remarriage or her death. The occurence [sic] of those two conditions subsequent is necessarily indefinite.” Id. at 419.
In the instant case, there are similar conditions subsequent. Thus, this award is indefinite as well.
In Gross v. Gross (1984), 11 Ohio St. 3d 99, antenuptial agreements were validated by this court as not contrary to public policy. The Gross holding is instructive for the instant case since in both cases the court is faced with a divorce situation in which freedom of contract is pitted against the equitable interest in protecting the disadvantaged spouse. In paragraph four of the syllabus in Gross, the court held:
“In a judicial review of such an agreement, upon motion for modification, at any subsequent separation or divorce proceeding of the parties, provisions setting forth maintenance or sustenance alimony must meet the additional test of conscionability at the time of the divorce or separation.” Thus, sustenance alimony terms of antenuptial agreements must pass the test of conscionability, to be measured at a time following the agreement, i.e., the time of divorce or separation. Similarly, in this case we should invoke the test of conscionability, to be measured at a time following the divorce decree, for the reasons expressed above in Wolfe, supra.
This court sits as a court of equity as well as a court of law. To condone the type of activities engaged in by appellee and others similarly situated is to ignore this court’s equitable powers to do justice. Moreover, the trial court is the proper forum to weigh the equities involved, and appellate review should be restricted to the determination of whether an abuse of discretion has occurred. Cherry v. Cherry (1981), 66 Ohio St. 2d 348 [20 O.O.3d 318]. I am of the firm opinion that the trial court was well within the bounds of its discretion in modifying the alimony payments to better reflect the economic equities present.
Accordingly, I dissent with regard to the second issue.