Summary
holding that trial court could not modify spousal support award based on change in circumstances even though the award was "subject to termination in the event of death, remarriage, or cohabitation"
Summary of this case from Guggenbiller v. GuggenbillerOpinion
No. 84-626
Decided April 24, 1985.
Domestic relations — Court does not have jurisdiction to modify sustenance alimony award for fixed period, when.
O.Jur 3d Family Law § 1177.
A decreeing court does not have continuing jurisdiction to modify a sustenance alimony award that was made for a fixed period of years even though the award is subject to termination in the event of death, remarriage or cohabitation unless the decreeing court expressly reserves jurisdiction to modify.
APPEAL from the Court of Appeals for Medina County.
The subject of this appeal is the continuing jurisdiction of a court to modify a sustenance alimony award.
The defendant-appellee, Marcia B. Ressler, was divorced from her husband, plaintiff-appellant, Kenneth L. Ressler, in March 1978. The divorce decree provided, in part, as follows:
"3. * * * The Plaintiff shall pay * * * the sum of thirty-five dollars ($35) per week per child * * *.
"* * * Such support payments shall increase each January first by the percentage of the annual cost of living increase, if any, for the past calendar year as computed and publicized by the U.S. Department of Labor.
"* * *
"4. The Court further finds that the Plaintiff shall pay to the Defendant and the Defendant is awarded alimony in the sum of $200 per month, payable through the Bureau of Support together with the appropriate poundage. Such alimony shall increase as set forth in Item 3 above depending on the percentage of increase for the prior calendar year, if any, as computed by the U.S. Department of Labor on each January 1st. Such alimony payments shall continue for a period of five (5) years from and after February 1, 1978 or until Defendant re-marries, co-habits [ sic] with another man, or dies.
"Any percentage cost of living increase as set forth in 3 above and herein, are [ sic] dependent on the recipient's need."
Two months prior to the expiration of the term, appellee applied to the court for an order to extend the payment of alimony beyond five years. Appellant opposed the motion, claiming that the court did not have jurisdiction to extend the payment of alimony. The issue was referred to a referee who recommended a finding of an implied reservation of jurisdiction that enabled the court to order the extension of the alimony beyond the specified period. The referee did not recommend that alimony be extended because she found that appellee failed to demonstrate a change of circumstances.
Both parties filed objections to the referee's report. Appellant maintained that the referee erred in recommending a finding that the court had reserved jurisdiction to extend the payments. The trial court agreed with appellant that the sustenance alimony was not subject to modification since it was for a definite amount and for a set period of years subject only to death, remarriage or cohabitation. The court of appeals vacated and remanded the judgment of the trial court, holding that "a term of years limiting the payment of sustenance alimony does not in any way change the continuing jurisdiction of the court to modify its sustenance order upon a change of circumstances."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Steiner Stern Co., L.P.A., and William F. Steiner, for appellant.
L. Ray Jones and Frank P. Bianco, for appellee.
This case presents the issue of whether a court has continuing jurisdiction to modify a divorce decree that orders sustenance alimony payments for a specific term of years, conditionally terminable by death, remarriage or cohabitation. Both sides cite Wolfe v. Wolfe (1976), 46 Ohio St.2d 399 [75 O.O.2d 474], as support for their arguments. In Wolfe, this court held that a court has continuing jurisdiction to modify a divorce decree that orders sustenance alimony over an indefinite time period. However, Wolfe is distinguishable because that case involved a sustenance award that was extended indefinitely and terminable on certain conditions subsequent, whereas this case involves a sustenance award that is subject to conditions subsequent, but definitely terminates after a term of years.
In Colizoli v. Colizoli (1984), 15 Ohio St.3d 333, we held that a combined sustenance alimony and child support award in a fixed amount that was adjusted downward in the event of remarriage or death that was payable over a period of twelve years was not subject to adjustment absent an express reservation of jurisdiction by the reviewing court. In like manner, we hold that a decreeing court does not have continuing jurisdiction to modify a sustenance alimony award that was made for a fixed period of years even though the award is subject to termination in the event of death, remarriage or cohabitation unless the decreeing court expressly reserves jurisdiction to modify. In so ruling we are promoting the concept that alimony decrees should possess a degree of finality and certainty. It would be illogical to hold that this situation is distinguishable from that of Colizoli because the decree in that case provided for only a reduction in alimony on the occurrence of a condition subsequent, whereas the decree in the instant case terminated all alimony payments on the occurrence of the condition subsequent. In both situations, the total alimony amount could be affected by conditions subsequent and the payments definitely terminated after a fixed period of years. Further, this case does not differ from Colizoli by reason of the fact that the parties determined their alimony by litigation intead of by agreement. Divorce decrees determined by court order deserve the same finality as those ordered pursuant to an agreement.
Accordingly, we find that the trial court did not have jurisdiction in this matter and reverse the judgment of the court of appeals.
Judgment reversed.
SWEENEY, HOLMES, C. BROWN and DOUGLAS, JJ., concur.
CELEBREZZE, C.J., and FORD, J., dissent.
FORD, J., of the Eleventh Appellate District, sitting for LOCHER, J.
I must respectfully dissent in this case. Today's decision effectively emasculates this court's opinion in Wolfe v. Wolfe (1976), 46 Ohio St.2d 399 [75 O.O.2d 474], which held the inclusion of conditions subsequent ( i.e., remarriage or death) in a divorce decree, which terminate all alimony, renders the decree indefinite. The court granting such an indefinite award thereby has an implied "* * * reservation of jurisdiction to modify * * *" the decree. Id. at paragraph two of the syllabus.
While I did not agree with this court's rationale in Wolfe and dissented from the holding, I recognize that it is the law of Ohio and that parties to divorce proceedings, their attorneys, and the decreeing courts have presumably relied on its holding for nearly a decade when drafting settlements and divorce decrees. In my opinion, the decree in the case sub judice is not significantly distinguishable from Wolfe. In attempting to distinguish Wolfe, the majority has misinterpreted the Wolfe decision and then altered its import. In paragraph two of the Wolfe syllabus this court held:
"Where, upon granting a divorce, a court awards alimony to a wife, pursuant to an agreement of the parties, to be paid until the condition subsequent of remarriage or death of the wife, and such award is for her sustenance ans support and independent of any award arising by adjustment of the property rights of the parties, reservation of jurisdiction to modify the award will be implied in the decree."
Writing for the court, in Wolfe, Justice William B. Brown explained at 419 that the holding was only to embrace alimony awards which were "for an indefinite amount." The court found the amount of the award in Wolfe indefinite because "[t]he occurence [ sic] of those two conditions subsequent [remarriage or death] is necessarily indefinite." Id.
More recently, this court further examined what constitut an indefinite award in Colizoli v. Colizoli (1984), 15 Ohio St.3d 333. The decree in Colizoli provided for alimony payments for a fixed number of years to be reduced (but not terminated) upon the remarriage or death of the wife. This court held that such an award was not subject to modification by the decreeing court under the Wolfe decision as the Colizoli order was "* * * for a definite amount over a specified number of years." Id. at 336.
In Wolfe the alimony support order ran for a continuing period of time and was terminable upon the death or remarriage of the spouse. As Justice William Brown explained, the occurrence of these two uncertain events made the award and decree indefinite and subject to court modification. Unlike Wolfe, the Colizoli decree did not terminate the award upon the occurrence of the conditions subsequent but rather decreased the amount of the award for a set number of years. The Colizoli opinion states:
"In the case at bar, the wife can continue receiving such payments, albeit reduced by $6,000 per year, regardless of whether she dies or remarries. We believe that where the parties agree to and the court decrees, a sustenance alimony award for an ascertainable amount over an ascertainable term of years, such an award should not be subject to modification absent an express reservation of jurisdiction to do so by the decreeing court." Id.
In the case sub judice the decree was for a definite amount and period of years; however, it also contained the marriage/death termination pro-viso this court found controlling in Wolfe. Unlike Colizoli, the award was not reduced a predetermined amount. Like Wolfe, it provided for complete termination of the award upon the occurrence of the conditions subsequent and is therefore indefinite.
The Wolfe court's premise is that it is not the continuing nature of the decree which renders the award definite or indefinite as the majority today suggests. Rather, Wolfe recognized that the complete and total termination of the entire alimony award upon the occurrence of a specified condition subsequent makes the initial decree indefinite. Wolfe, supra, at 419.
If the majority of this court wishes to overrule Wolfe, either in whole or part, they should expressly do so. However to now state that today's decision is distinguishable and thereby consistent with Wolfe is an insult to the domestic relations judges and attorneys of this state who have relied on our earlier holdings.
Contrary to the statement in the majority opinion herein that "[i]t would be illogical to hold that this situation is distinguishable from that of Colizoli * * *," I believe the only factor consistent with today's decision and our holdings in Colizoli and Wolfe is that all three opinions held in favor of the husband.
In my opinion the decree herein falls squarely within paragraph two of the syllabus of Wolfe and is subject to modification by the decreeing court. Based on the foregoing, I dissent.
FORD, J., concurs in the foregoing dissenting opinion.
I would join with the majority if it applied its logic in the case sub judice to overrule Wolfe v. Wolfe (1976), 46 Ohio St.2d 399 [75 O.O.2d 474], altogether. I share the view expressed by Chief Justice Celebrezze in his dissenting opinion. "Peeling the banana" a side at a time only compounds confusion.
It appears more prudent to provide litigants, as well as attorneys and judges in this area, with a clear and workable rule. If we are to have Wolfe, then I believe its rationale should be applied uniformly in both divorce actions as well as dissolution cases, as expressed in my dissent in McClain v. McClain (1984), 15 Ohio St.3d 289, 291-292. The effect of re-examination of its principles by this court appears to be the creation of an amorphous trail that is difficult to follow. Continued modification of Wolfe serves no worthwhile purpose. We should return to the days of yesteryear, and make Wolfe an extinct species, rather than an endangered one.