Adams, In re

• Decision Date: 06 September 1989
• Docket Number: No. 88-1159,88-1159
• Citation: 543 N.E.2d 797,45 Ohio St.3d 219
• Parties: In re ADAMS, N.K.A. Mumley, Appellant; Adams, Appellee.
• Court: Ohio Supreme Court

Page 219

45 Ohio St.3d 219

543 N.E.2d 797

In re ADAMS, N.K.A. Mumley, Appellant Adams, Appellee.

No. 88-1159.

Supreme Court of Ohio.

Submitted May 3, 1989.

Decided Sept. 6, 1989.

Syllabus by the Court

Pursuant to R.C. 3105.65(B), a court is without jurisdiction to modify or terminate an award of alimony set forth in a separation agreement incorporated into a decree of dissolution of marriage, absent a reservation of jurisdiction in the agreement.

Appellant, Nancy K. Adams, now known as Nancy K. Mumley, and appellee, Jackie L. Adams, were granted a dissolution on August 12, 1985, after thirty-one years of marriage.

The parties entered into a separation agreement which was incorporated into the decree of dissolution. Article V of the agreement provided that appellee would pay permanent sustenance alimony of $200 per month to appellant. By amendment, this amount increased to $800 per month upon emancipation of the parties' minor child. The separation agreement had no provision specifically authorizing the court to modify or terminate the amount or terms of the alimony upon a future change in circumstances.

On August 2, 1987, appellant remarried. Subsequently, appellee filed a motion in the Belmont County Court of Common Pleas for an order terminating or modifying his obligation to pay alimony on the ground of appellant's remarriage. After a hearing, the court terminated the alimony as of December 31, 1987, finding that it is against public policy to compel a man to support his former wife after she remarries, absent proof of extraordinary circumstances. The Court of Appeals for Belmont County affirmed.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Thomas, Fregiato, Myser, Hanson & Tomlan and Rodney D. Hanson, Bridgeport, for appellant.

Cinque, Banker, Linch & White and Harry W. White, Bellaire, for appellee.

HERBERT R. BROWN, Justice.

The issue presented is whether a court of common pleas has jurisdiction to terminate permanent sustenance alimony set forth in a separation agreement incorporated into a dissolution of marriage decree, upon the payee spouse's remarriage, absent an express reservation of jurisdiction in the agreement. We answer in the negative and reverse the decision of the court of appeals.

In 1974, the Ohio General Assembly adopted a form of consensual divorce by enacting legislation permitting dissolution of marriages. (135 Ohio Laws, Part II, 603, 615-616.) To obtain a dissolution, the parties enter into a separation agreement. R.C. 3105.63. The separation agreement is a contract between the spouses which the court may approve or disapprove. See R.C. 3105.65. The court, however, cannot unilaterally change the provisions of the agreement.

Agreement between spouses is the linchpin of the procedure. To obtain a dissolution, both spouses must sign the petition which must incorporate a separation agreement. In the agreement, spouses must delineate the disposition of all property, set forth the terms and amount of alimony (if any) and, if there are minor children of the marriage, provide for child custody, visitation and support. R.C. 3105.63. Both spouses must appear before the court and verify that their participation in the agreement is voluntary, that they are satisfied with its terms and that they seek dissolution of the marriage. R.C. 3105.64. If either spouse expresses dissatisfaction with the agreement or does not want the marriage dissolved, the court must dismiss the petition and refuse to validate the proposed separation agreement. R.C. 3105.65(A). Thus, the separation agreement is a binding contract between the parties. ¹

Appellee states that he was unrepresented by counsel during the dissolution proceedings. However, he swore under oath before the trial court that he had voluntarily entered into the separation agreement. In a written statement attached to the dissolution petition, appellee acknowledged that he was aware and understood that his former wife's attorney was not representing him and that he had been given full opportunity to obtain his own counsel. Appellee alleges no fraud, duress, misrepresentation or other circumstance which might indicate that his assent to the separation agreement was involuntary.

The separation agreement in this case does not reserve continuing jurisdiction to terminate or modify the alimony. Accordingly, we look to the statute under which the parties obtained their dissolution to see if the statute grants continuing jurisdiction with respect to alimony.

At the time when the parties herein were granted a dissolution, R.C. 3105.65(B), as amended, stated in relevant part: " * * * The court has full power to enforce its decree, and retains jurisdiction to modify all matters of custody, child support, and visitation." (Emphasis added.) (136 Ohio Laws, Part II, 2452.) This language does not grant continuing jurisdiction over alimony. However, appellee argues (and the court of appeals agreed) that such jurisdiction can be implied.

The legislative history of R.C. 3105.65(B) defeats any such argument. When the provision was enacted in 1974, it stated in relevant part: " * * * The court has full power to enforce its decree, and retains jurisdiction to modify all matters of custody, child support, visitation, and periodic alimony payments." (Emphasis added.) (135 Ohio Laws, Part II, 603, 616.) The provision was amended effective August 1, 1975 by striking the emphasized language. (136 Ohio Laws, Part II, 2452.) Thus, for dissolution proceedings after that date, the legislature did not intend to confer upon the courts continuing jurisdiction over alimony. In McClain v. McClain (1984), 15 Ohio St.3d 289, 15 OBR 421, 473 N.E.2d 811, this court examined the legislative intent with respect to this amended version of R.C. 3105.65(B). Therein, we stated at 291, 15 OBR at 423, 473 N.E.2d at 813, 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...