concurring. I believe the majority has presented a correct analysis of R.C. 3105.65(B), as amended, as well as of this court’s opinion in McClain v. McClain (1984), 15 Ohio St. 3d 289, 15 OBR 421, 473 N.E. 2d 811. The amendment to this statute, as noted by the majority, only spoke to the authority — or lack thereof — of the trial court (not the parties) in retaining jurisdiction to modify sustenance alimony. The majority states that the deletion of such modification authority and its retention in the areas of custody, child support and visitation implied 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.” As noted within the majority opinion, neither McClain nor R.C. 3105.65(B) prohibits the parties from contractually providing for future amendments to sustenance alimony payments.
In fact, McClain could reasonably be said to have sub silentio approved such contractual authority of the parties in that it cited Alban v. Alban (1981), 1 Ohio App. 3d 146, 1 OBR 454, 439 N.E. 2d 963, in which the syllabus provides as follows:
“R.C. 3105.65(B) does not confer jurisdiction upon a court of common pleas to modify periodic alimony payments provided for in a separation agreement incorporated in a decree of dissolution of marriage, at least in the absence of a provision in the separation agreement for such modification.” (Emphasis added.)
As to the language of the agreement utilized here, I am not fully convinced that the mere inclusion of the words “[a]ll of the provisions in this Article are subject to the continuing jurisdiction of the Court” would give to the court the power to modify the alimony provisions. It may reasonably be argued that such language, standing alone, only states the obvious, i.e., that the trial court retains jurisdiction in enforcing the provisions of a dissolution agreement, per Civ. R. 75(1). However, here the parties went further, as pointed out by the majority, and agreed to give continuing jurisdiction to the court to modify the sustenance alimony provisions in the event that the husband’s gross income fell below that which “he now earns as outlined in the affidavit signed by the Husband concurrent with the execution of this Separation Agreement.”
There being an agreement between the parties specifically providing for future modification of sustenance alimony, the court is not prohibited from modifying its previous order in this regard. On these bases, I concur.