Bean v. Bean

• Decision Date: 19 December 1983
• Citation: 471 N.E.2d 785,14 Ohio App.3d 358
• Parties: , 14 O.B.R. 462 BEAN, Appellee, v. BEAN, Appellant.
• Court: Ohio Court of Appeals

Page 358

14 Ohio App.3d 358

471 N.E.2d 785, 14 O.B.R. 462

BEAN, Appellee, v. BEAN, Appellant.

Court of Appeals of Ohio, Twelfth District, Madison County.

Dec. 19, 1983.

Syllabus by the Court

1. A court of common pleas has no jurisdiction to modify a divorce decree as to the division of personal property or the payment of a debt of the parties where no disposition was made in this regard in the original decree, the appeal time has run, and no appeal was taken from the decree.

2. Where an alimony award is (1) for support only, (2) for an indefinite amount, and (3) there is no property settlement or there is a property settlement and the support award is independent thereof, the jurisdiction of the court to modify will be implied in the decree. Where the termination date for payment of alimony is capable of being advanced upon the happening of a contingency, the presence of that contingency indicates that the issue is indefinite and a reservation of jurisdiction to modify is implied.

3. There is no "magic" in distinguishing between an incorporated agreement and a court order as to modification of alimony, i.e., no distinction is made between separation agreements and court orders.

Richard S. Sheward, Columbus, for appellee.

Arthur H. Thomas, Jr., Worthington, for appellant.

RINGLAND, Judge.

The record indicates that on December 10, 1981, trial was had before the court on the complaint for divorce filed by the appellee, Luce Michele Bean, against appellant, Michael P. Bean. Evidence was adduced and witnesses were called after which the Court of Common Pleas of Madison County took under advisement the issues of child support, real property division, personal property division, payment of debts, alimony, payment of attorney fees, child custody and visitation. A written decision was rendered and a decree filed accordingly on January 10, 1982. No appeal was had from the decision and decree by either party. On June 7, 1982, appellee filed a post-decree motion for contempt to show cause why appellant should not be held in contempt for: (1) failure to comply with the alleged previous court orders requiring appellant to pay $750 towards appellee's counsel fee previously ordered in the decree, and (2) for appellant's failure to sell his jewelry or "pay $650.00 in lieu of selling said jewelry to reduce the debt of the parties." The matter was set for hearing before the referee of the Court of Common Pleas of Madison County, pursuant to the filing of the motion.

In response thereto, motions were filed by appellant requesting: (1) that the previous order of the court relating to home mortgage payments be modified due to a substantial change in circumstances; (2) that disposition of the household furnishings and effects be made by the court in that the disposition allegedly had not been made in the final decree; (3) that modification be made of appellant's obligation to pay child support and alimony due to a substantial change of circumstances; (4) that determination be made by the court as to whether appellee violated the court's previous order when she purchased marital property (a 1980 automobile); and (5) that the court order that one half of a post-decree income tax assessment, levied by the Internal Revenue Service and paid by appellant as a result of an audit of the parties' joint tax returns filed during the marriage, be credited to appellant as a set-off against amounts he owed appellee.

After several continuances, this matter came for trial on the motions before the referee of the Court of Common Pleas of Madison County on October 14, 1982. The referee, after taking the matters under advisement, filed his report with complete findings of fact and conclusions of law. His recommendations were as follows "1. That the court lacked jurisdiction to make an order on the furniture and household goods since they were not in the final decree.

"2. That because the issue of the tax arrearage arose subsequent to the decree, the court lacked jurisdiction to order the appellee to reimburse appellant or give appellant a credit for any tax arrearage he paid subsequent to the decree.

"3. That while the previous decree required the appellee to sell the Transam [sic ] automobile, her purchase was 'within the bounds of the decree.'

"4. That appellant be held in contempt for failure to pay the $750.00 attorney's fee as previously ordered.

"5. That appellant be held in contempt for failure to sell his jewelry or pay the value of said jewelry to ex-wife/appellee.

"6. That the appellant's motion to modify the previous order as to his payment of the existing mortgage payments on the marital residence not be granted.

"7. That the 'alimony' award previously made, being a definite lump sum award or property division, was not modifiable."

Objections to the recommendation and the report of the referee were duly filed by appellant. Subsequent to the objections being filed on February 3, 1983, and memoranda in support and contrary to the objections being filed by each respective party, a hearing was held before the court of common pleas. After hearing oral argument, the court took the matter under advisement, reviewed the report, read the transcript and, on March 23, 1983, entered its decision affirming the referee's report in whole and in each particular and entered judgment accordingly on April 12, 1983. To that entry a notice of appeal and a motion for stay of execution pending appeal was filed by appellant. A stay was granted by the court of common pleas as to the jail sentence previously imposed as well as to collection of any monetary judgments rendered against appellant, and an appeal bond was set. Therefore, from the entry upholding the referee's decision as well as the referee's recommendations, appeal has been taken.

The assignments of error are as follows:

"1. The court erred to the prejudice of appellant by failing to divide property of the parties not previously divided by the original divorce decree.

"2. The court erred to the prejudice of appellant when it overruled his motion to apportion one half of the parties' joint tax obligation to appellee.

"3. The court erred to the prejudice of appellant when it ruled that appellee was not obligated under the divorce decree to sell a 1980 Pontiac.

"4. The court erred to the prejudice of appellant when it found him in contempt for failing to pay $750.00 of plaintiff's counsel fees.

"5. The court erred to the prejudice of appellant when it found him in contempt for failure to sell certain miscellaneous jewelry.

"6. The court erred to the prejudice of appellant when it overruled his motion to modify an obligation to make mortgage payments on appellee's residence.

"7. The court erred to the prejudice of appellant when it overruled his motion to modify his obligation to pay alimony."

The court will discuss each assignment of error in the order listed.

First Assignment of Error

Appellant, in his first assignment of error, claims that the court committed prejudicial error by failing to consider and divide marital property of the parties not previously divided in the original decree. His contention is that it is incumbent upon the court to divide marital property or otherwise the parties are left with the status quo. In the decree the trial court ordered that the real estate should remain titled in both names until the parties' child was emancipated, attained the age of eighteen or died, or upon agreement by the parties. Upon the occurrence of the above conditions, the property was to be sold, paying off the mortgage and costs of sale, after which the net proceeds were to be divided between the parties. No mention was made of the parties' personal property, other than the automobiles.

Appellant cites Taylor v. Taylor (1981), 2 Ohio App.3d 79, 440 N.E.2d 823, a Cuyahoga County Court of Appeals case, which he contends supports his position. However, in Taylor the domestic relations court refused to make a property decision, leaving matters in the status quo, and from that decision an appeal was taken. The court of appeals correctly held that the trial court abused its discretion and remanded the matter further for trial. The situation in Taylor, however, can be distinguished from the case at hand. Neither appellant nor appellee filed an appeal from the original decree which omitted the disposition of personal property. Now that the appeal time has run, appellant chooses to raise the issue by a post-decree motion concerning the personal property. Therefore, the issue is whether the trial court has jurisdiction to reopen the divorce decree on matters of personal property division.

Ohio courts have long reviewed the issue of their "right" or jurisdiction to reopen a judgment or decree. Some decisions have based their reasoning on the doctrine of estoppel, indicating that where the appellant permitted the decree to go upon the record without appealing it, he forfeited his rights to question the decree later by collateral attack. Petersine v. Thomas (1876), 28 Ohio St. 596.

Other decisions base their reasoning on the doctrine of res judicata. Julier v. Julier (1900), 62 Ohio St. 90, 56 N.E. 661; Grant v. Ramsey (1857), 7 Ohio St. 158. Not only have Ohio courts held that res judicata applies to issues which were actually litigated and adjudicated in a divorce action, but also that the doctrine is applicable to matters which could have been litigated and adjudicated. " 'Whenever a matter is finally determined by a competent tribunal, it is considered at rest forever. And this principle embraces not only what was actually determined, but every other matter which the parties might have litigated in the case.' " Petersine v. Thomas (1876), 28 Ohio St. 596, 601, citing Fischli v. Fischli, 1 Blackf. 360. A court has control of the division of the property of the parties at the time of the divorce decree and not thereafter. Stemple v. Stemple (C.P.1967), 12 Ohio Misc. 147...