Michael Reed v. Wanda Reed, 87-LW-0182

CourtUnited States Court of Appeals (Ohio)
PartiesMichael REED, Plaintiff-Appellant, v. Wanda REED, Defendant-Appellee.
Docket Number87-LW-0182,1325
Decision Date27 January 1987

Michael REED, Plaintiff-Appellant,
v.

Wanda REED, Defendant-Appellee.

No. 1325.

87-LW-0182 (4th)

Court of Appeals of Ohio, Fourth District, Ross

January 27, 1987


Joseph P. Sulzer, Chillicothe, for appellant.

James R. Kingsley, Circleville, for appellee.

DECISION & JUDGMENT ENTRY

PER CURIAM:

This case is on appeal from a ruling of the Common Pleas Court, General Division, Ross County, Ohio. Plaintiff-appellant's motion to terminate his obligation to pay alimony was overruled. The court held it lacked jurisdiction to consider the matter. We affirm.

The Reeds were granted an uncontested divorce on October 25, 1984. The final decree of divorce, in December of 1984, incorporated a separation agreement entered into by the parties. Paragraph 4 of the decree ordered the husband to pay $50.00 per week alimony to Mrs. Reed, "commencing immediately and terminating on November 1, 1986, unless the wife remarries, cohabitates for an extended period, or dies before said termination date." The court did not expressly reserve jurisdiction to modify this award of alimony.

On January 27, 1986, Mr. Reed filed motions to reduce child support, to require his ex-wife to assume the mortgage on the house under paragraph 5 of the decree, and to terminate his obligation to pay alimony on the basis that defendant was cohabitating. The trial court overruled all three motions. In ruling that it no longer retained jurisdiction to modify the alimony provision, the court relied on Ressler v. Ressler, 17 Ohio St.3d 17, 476 N.E.2d 1032, decided April 24, 1985. It is from this ruling only that plaintiff appeals, and his sole assignment of error is as follows:

"A trial court commits error by retroactively applying a decision when such application produces substantial inequitable results."

It is not disputed that since Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 350 N.E.2d 413, post-divorce unchastity is not a ground for automatic termination of an alimony award, but is merely a factor to be considered in a subsequent modification proceeding. Id. at 420. Thus, the trial court below would have erred had it terminated the award on that basis, unless it retained jurisdiction to modify the award. Stevens v. Stevens (1986), 23 Ohio St.3d 115, 122.

In 1976, the Ohio Supreme Court announced in Wolfe, supra, that where a court awards sustenance alimony pursuant to an agreement of the parties and subject to the death or remarriage of the recipient, the reservation of jurisdiction to modify that award is mplied in the decree. Wolfe, paragraph 2 of the syllabus. However, in Colizoli v. Colizoli (1984), 15 Ohio St.3d 333, 474 N.E.2d 280, the Supreme Court held that when a court awards alimony for a definite amount over a specified period 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. at 336. The...

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