Newman v. Newman, 33645
| Decision Date | 31 March 1954 |
| Docket Number | No. 33645,33645 |
| Citation | 118 N.E.2d 649,161 Ohio St. 247 |
| Parties | , 53 O.O. 135 NEWMAN v. NEWMAN. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
An alimony decree based on an agreement between the parties is not subject to modification by a court after term in the absence of mistake, misrepresentation or fraud and in the absence of a reservation of jurisdiction with reference thereto. Law v. Law, 64 Ohio St. 369, 60 N.E. 560, approved and followed.
On March 31, 1952, the plaintiff filed a petition in the Court of Common Pleas seeking modification of a divorce and alimony decree obtained by her against the defendant 19 years previously on July 10, 1933.
To the plaintiff's petition for modification of the decree as to the amount of the alimony, the defendant filed a motion to strike numerous paragraphs therefrom.
The trial court treated the motion as a demurrer and sustained it.
On an appeal to the Court of Appeals on questions of law, the judgment of the trial court was reversed, and the cause was remanded thereto.
The Court of Appeals then certified the record to this court for review and final determination on the ground that the judgment is in conflict with that pronounced by the Court of Appeals for Franklin county on the same question in the case of Kintner v. Kintner, 78 Ohio App. 324, 65 N.E.2d 156.
Thompson, Hine & Flory, C. W. Sellers, James A. Weeks and William D. Ginn, Cleveland, for appellant.
Daus & Schwenger and Harry Kottler, Cleveland, for appellee.
Was the trial court correct in sustaining the 'demurrer' to the plaintiff's petition?
The sole question of law involved is clear and simply stated.
In an action for a divorce and alimony, is a decree subject to modification after term with respect to a contract for alimony and division of property where the court incorporates the contract in its decree and does not reserve jurisdiction with reference thereto?
At the threshold of this discussion, it perhaps is well to simplify the controversy by emphasizing that certain questions are not involved.
It does not involve an order for the support of minor children. Seitz v. Seitz, 156 Ohio St. 516, 103 N.E.2d 741.
It does not involve an order for alimony pendente lite for the spouse.
It does not involve a decree in which the trial court reserves jurisdiction with reference to the amount of the alimony.
It does not involve the jurisdiction of the trial court to enforce its decree. Holloway v. Holloway, 130 Ohio St. 214, 198 N.E. 579, 154 A.L.R. 439.
Nor does it involve a claim of mistake, misrepresentation or fraud.
There seems to be some difference of opinion between counsel as to whether the agreement between the parties relates to alimony alone or only to a division of property. A study of the agreement and the original decree discloses conclusively that both are involved, and in the present action the trial court so considered the matter.
In her present petition for modification of the amount of the alimony, the plaintiff bases her claim for relief on alleged changes in her circumstances and those of her former husband during the 19-year interval between the granting of the decree and the filing of the instant petition.
Counsel are in agreement that the provisions of Section 11631, General Code, Section 2325.01, Revised Code, relating to the modification and vacating of judgments, decrees and final orders after term, are not here involved. It is the plaintiff's contention that, independently of these statutory provisions, the trial court possesses inherent power to modify such decrees.
The plaintiff relies strongly on the decision of this court in the case of Olney v. Watts, 43 Ohio St. 499, 3 N.E. 354, in which it was held in the first paragraph of the syllabus:
The defendant places his reliance on the decision of this court in the later case of Law v. Law, 64 Ohio St. 369, 60 N.E. 560, in which it was held in the syllabus:
'A divorce being decreed for the aggression of the husband, and alimony being adjudged to the wife in accordance with an agreement of the parties, the terms of the decree as to alimony are not, if unaffected by fraud or mistake, subject to modification...
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