Rahm v. Rahm

• Decision Date: 28 February 1974
• Citation: 68 O.O.2d 225,39 Ohio App.2d 74,315 N.E.2d 495
• Parties: , 68 O.O.2d 225 RAHM, Appellee, v. RAHM et al., Appellants.
• Court: Ohio Court of Appeals

Page 74

39 Ohio App.2d 74

315 N.E.2d 495, 68 O.O.2d 225

RAHM, Appellee, v. RAHM et al., Appellants.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 28, 1974.

Syllabus by the Court

1. In Ohio the authority of trial courts and courts of appeal to grant temporary alimony pending litigation and temporary alimony pending appeal is governed by Civil Rule 75, Ohio Rules of Civil Procedure.

2. Temporary alimony may be temporary alimony pending litigation and/or temporary alimony pending appeal, and it may be awarded to either party for sustenance and/or expenses during the pendency of the action for divorce, annulment, or alimony or for the period of the pendency of the appeal, and its granting is discretionary with the court. Civil Rule 75(H); Civil Rule 75(N).

3. An order for temporary alimony pending litigation is merged into the final judgment in a divorce or alimony action, and any temporary order and arrearages incident thereto is terminated when final judgment is entered. The final judgment replaces all that transpired before it.

4. Once the trial court enters final judgment in a divorce action or alimony action it cannot reinstate any order it may have made for temporary alimony pending the litigation because the trial court has lost jurisdiction and, therefore, has no authority to make such an order.

5. A notice of appeal is not considered as filed until after the judgment or order of the trial court is entered for filing, because a notice of appeal filed prior to the entry of judgment is considered filed on the date the judgment or order is entered. Appellate Rule 4(A). Filing a notice of appeal is synonymous with taking or perfecting an appeal.

6. (A) In order for a trial court to have authority to grant temporary alimony pending appeal, a motion for such order must be filed in the trial court prior to the filing of a notice of appeal. Civil Rule 75(H).

(B) If a motion for temporary alimony pending appeal is filed in the trial court before a notice of appeal is filed, the trial court may grant temporary alimony pending the appeal at any time during the pendency of the appeal. Civil Rule 75(H).

(C) If a motion for temporary alimony pending appeal is filed in the trial court after an appeal is taken or perfected, the trial court cannot act on the motion. Civil Rule 75(H).

7. After a notice of appeal is filed by either party, the Court of Appeals may also grant temporary alimony pending an appeal. Civil Rule 75(H).

8. A party has two opportunities to seek temporary alimony pending an appeal; first, in the trial court by filing a motion for temporary alimony pending appeal before a notice of appeal is filed; and, secondly, by filing a motion for temporary alimony pending appeal in the Court of Appeals after a notice of appeal is filed. Civil Rule 75(H).

9. Temporary alimony pending appeal may be granted to either party for sustenance and/or expense money during the pendency of the appeal, and it may be granted a divorce action or alimony action, whether or not the final judgment contains an order for permanent alimony. However, if the final judgment of the trial court provides for permanent alimony, and on appeal temporary alimony pending appeal is awarded, any amounts paid as temporary alimony pending appeal are deducted and set off from the award of permanent alimony if there is an affirmance of the trial court's judgment. (See Bentz v. Bentz, 171 Ohio St. 535, 173 N.E.2d 129.)

Robert E. Sweeney, Cleveland, for appellee.

John H. Bever, Berea, for appellant.

KRENZLER, Judge.

On November 13, 1970 plaintiff filed a complaint for divorce, custody of children and alimony, and on January 12, 1971 the defendant filed an answer and counterclaim. The answer was in the form of a general denial, and the counterclaim was for divorce. Plaintiff then filed an answer to the counterclaim.

Throughout the pendency of this case there were many preliminary proceedings which need not be considered in this opinion.

The parties agreed that defendant would pay $140 a week for the support of the plaintiff and $40 a week as temporary support for each of their two unemancipated children. This was journalized on September 28, 1971.

The trial court announced its decision in a letter dated November 10, 1972 and defendant made a request for findings of fact and conclusions of law, which were made by the trial court.

On January 11, 1973 the trial court entered its judgment awarding the plaintiff a divorce and custody of the minor child, Kelly Jean. In addition, the defendant was to pay $35 a week for support of said minor child; transfer his interests in real properties in the amount of $116,000 to the plaintiff; pay plaintiff $2,500 towards the purchase of an automobile; transfer to plaintiff his interests in various life insurance policies, and all right, title and interest in household goods and appliances; plus additional amounts as permanent alimony of $25,000 cash and $10,000 as attorney's fees.

On January 30, 1973 defendant filed a timely notice of appeal.

On February 28, 1973 the plaintiff appellee filed a motion in the Court of Appeals to require the appellant to file a supersedeas bond and to provide for her support and maintenance during the pendency of the appeal. This motion was denied by the Court of Appeals.

Also on February 28, 1973 the plaintiff filed a motion to show cause in the Common Pleas Court in which she alleged that following the judgment of divorce the defendant stopped providing for the support of the plaintiff and her minor child, and that she was without income or resources. In substance her motion is for reinstatement of the trial court's order of temporary alimony pending the litigation, or in the alternative, for temporary alimony pending appeal.

A hearing was conducted by a referee who found that plaintiff was without sufficient funds to maintain herself and that conditions existed which justified maintaining the previous order of temporary alimony pending litigation in the amount of $140 per week plus necessary medical and dental expenses, and that this order should remain in effect during the pendency of the appeal.

The defendant filed an objection to the referee's report alleging tha the final judgment of January 11, 1973 terminated all of the temporary orders and that they were merged into the final judgment, and that the Common Pleas Court only had authority to enforce its final judgment entry. He further alleged that the trial court was without jurisdiction because Civil Rule 75(H) provides that the trial court may modify an order with respect to custody, support or alimony if it is filed prior to the filing of a notice of appeal. Defendant contended that the plaintiff filed the motion to show cause on February 28, 1973 which was after the notice of appeal was filed on January 30, 1973, and that the trial court had no jurisdiction to act.

The trial court overruled the defendant's objection and approved the recommendations of the referee in a journal entry entered on April 25, 1973. On May 8, 1973 defendant filed a notice of appeal from this order.

While the appeal of the trial court's April 25, 1973 judgment for temporary alimony was pending, the Court of Appeals on July 12, 1973 affirmed the January 11, 1973 judgment for divorce and permanent alimony. The appeal in this case is only from the trial court's April 25, 1973 order requiring the defendant to pay the plaintiff $140 a week plus necessary medical and dental expenses.

Defendant appellant's assignment of error is that the judgment of the trial court is contrary to law. He argues that under Civil Rule 75(H) the trial court must modify any order prior to the filing of a notice of appeal, and that once a notice of appeal is filed the trial court loses jursidiction.

Plaintiff appellee contends that the defendant appellant's appeal is confined to only one issue and that is the issue which divided the property between the parties, and that the trial court has continuing jurisdiction over the issues of temporary alimony pending appeal, and that Civil Rule 75(H) does not deprive the trial court of authority to act on this issue.

The ultimate issue to be decided in this appeal is whether a trial court may grant a motion for temporary alimony pending appeal if said motion was filed after the notice of appeal was filed.

This case is concerned with the subject of alimony in general and temporary alimony pending appeal in particular.

In order to better understand the issues a brief general discussion of alimony will be helpful.

There are two kinds of alimony, namely: temporary alimony and permanent alimony. Temporary alimony may be temporary alimony pending litigation and temporary alimony pending an appeal, and it may be awarded in divorce actions or alimony actions. R.C. § 3105.18, Civil Rule 75(H) and Civil Rule 75(N).

Temporary alimony pending litigation may be awarded by the trial court any time after a complaint is filed and before judgment on the merits. Norton v. Norton (1924), 111 Ohio St. 262, 145 N.E. 253; Civil Rule 75(N).

Temporary alimony pending litigation may be awarded either of the parties for sustenance and expenses during the suit for divorce, annulment or alimony, and is discretionary with the trial court. Norton v. Norton, supra; Stone v. Stone (1954), 98 Ohio App. 240, 122 N.E.2d 404; Dailey v. Dailey (1959), Ohio App., 161 N.E.2d 403, 81 Ohio Law Abs. 225; Phillips v. Phillips (1954), Ohio App., 129 N.E.2d 77, 70 Ohio Law Abs. 552; Sciacca v. Sciacca (1952), Ohio App., 126 N.E.2d 342, 69 Ohio Law Abs. 513, 514; Civil Rule 75(N).

Temporary alimony pending an appeal may be awarded by the trial court or the Court of Appeals as will hereinafter be discussed. The purpose of temporary alimony pending an appeal is to give either party sustenance and/or expense money during the pendency of the appeal. Stone v. Stone, supra; Sciacca v. Sciacca, supra.

As to permanent alimony,...