Rhoades v. Rhoades

• Decision Date: 15 July 1974
• Parties: , 69 O.O.2d 488 RHOADES, Appellee, v. RHOADES, Appellant.
• Court: Ohio Court of Appeals

Page 559

40 Ohio App.2d 559

321 N.E.2d 242, 69 O.O.2d 488

RHOADES, Appellee, v. RHOADES, Appellant.

Court of Appeals of Ohio, First District, Hamilton County.

July 15, 1974.

Syllabus by the Court

1. Neither the promise to do a thing, nor the actual doing of it will constitute a sufficient consideration to support a contract, if it is merely a thing which the party is already bound to do either by law or a subsisting contract with the other party.

2. Minor children are third party beneficiaries of provisions in a divorce decree granting support payments for their benefit, and such benefits may not be modified by the parties to the detriment of the minors.

William McD. Kite and Terrence A. Mire, Cincinnati, for appellee.

H. J. Bressler, Hamilton For appellant.

PER CURIAM.

This cause came on to be heard upon the appeal; the transcript of the docket and journal entries; the original papers and pleadings from the Court of Common Pleas of Hamilton County, division of domestic relations; the transcripts of the proceedings; the assignments of error; and the briefs and arguments of counsel. The appeal is from the judgment of the court affirming certain orders of a referee.

The parties of this appeal were divorced on March 15, 1971, and the defendant was ordered to pay support for the two minor children involved in the case. Subsequently, the support order was amended to require defendant to pay $40 per week for each child's support. On August 22, 1972 the defendant began to remit, through the court, only the sum of $25 per week for each child's support.

On May 1, 1973, a hearing was held before a referee of the court on the motion of the defendant for an order modifying the decree by reducing support payments and for an order establishing definite visitation periods, and upon the motion of the plaintiff for a lump sum judgment on arrearages in support.

The referee ordered the defendant, upon his motion, to pay $30 per week for each child's support, established visitation periods (which order is not involved in this appeal), and awarded plaintiff a judgment for total arrearages in support for the period beginning July 20, 1971, to May 1, 1973.

On October 19, 1973, the court heard the defendant's 'appeal' from the orders of the referee pertaining to the support of the children and the lump sum judgment and affirmed the same, in toto.

Five errors have been assigned, the first of which reads:

'It was error for the court to order payment of a lump sum judgment in view of the undisputed testimony that there had been a previous agreement in which the parties agreed to reduce the amount of support.'

Although defendant characterizes the testimony relative to the purported extrajudicial 'agreement' between the parties, reducing support payments, as 'undisputed,' our perusal of the record indicates that such is not the case.

It appears that defendant had resigned his employment in this state to accept another position in Illinois at a sharply reduced salary. He testified that because of his reduced income he could not pay the support ordered by the court and telephoned plaintiff to so advise her. He claims that in that telephone conversation, secretly audited by a woman now the defendant's wife, he offered to pay the total sum of $50 per week (instead of $80 as ordered) and that plaintiff accepted the offer. Plaintiff, however, testified that whicl she recalled a telephone conversation in which defendant told her of his inability to pay as ordered and his intention to remit a lesser amount, she did not make any agreement with him.

Defendant has cited to us a number of decisions treating with the law governing extrajudicial agreements between parents altering support orders made by courts, urging that the case of Tressler v. Tressler (1972), 32 Ohio App.2d 79, 288 N.E.2d 339 'serves as a review of all the case law dealing with extrajudicial agreements.'

Tressler, supra, involves an agreement whereby the father, in consideration of his executing and delivering to the mother a written consent to the adoption of their children by a stepfather, was released from the obligation to support the children imposed by the decree of divorce. The Court of Appeals affirmed a judgment of the Court of Common Pleas overruling the mother's motion for a lump sum judgment, even though the adoption never took place and the mother had divorced the stepfather, holding, at page 81, 288 N.E.2d at page 340, that 'the execution and delivery of the written consent (to adopt) was not only performance but constituted valuable consideration for the plaintiff's premise to forego the weekly support payments.' At page 80, 288 N.E.2d at page 340 of the opinion, we find the distillation of Ohio case law alluded to by defendant:

'It is established law in Ohio that as between a husband and wife, an agreement between them, for a valuable consideration, made subsequent to and different from the order of the court will be binding upon the wife in an action by her to recover unpaid installments of the court's child support award. Schnierle v. Schnierle, Ohio App., 33 N.E.2d 674, 33 Ohio Law Abst. 212; Bidinger v. Bidinger, supra (89 Ohio App. 274, 101 N.E.2d 241); McCabe v. McCabe, Ohio App., 167 N.E.2d 364, 83 Ohio Law Abst. 19; Blumberg v. Saylor, 100 Ohio App. 479, 137 N.E.2d 696; and Beiter v. Beiter, 24 Ohio App.2d 149, 265 N.E.2d 324.'

We believe that Tressler, supra, pronounces accurately the law in Ohio bearing upon the subject with which we are concerned here. Consequently, we have searched the record to determine whether there is evidence sufficient to have required the referee and the court below to find that an agreement had been made between the parties. Especially, we have searched for evidence to establish that there was consideration for any such agreement.

If, in the case at bar, the defendant gave up nothing, there could be no agreement. See McCabe v. McCabe, Ohio App., 167 N.E.2d 364, 83 Ohio Law Abst. 19.

It is elementary that neither the promise to do a thing, nor the actual doing of it will constitute a sufficient consideration to support a contract if it is merely a thing which the party is already bound to do, either by law or a subsisting contract with the other party. 11 Ohio Jurisprudence 2d 320, Contracts, Section 82.

All that we can perceive defendant here promised to do, and for all material purposes did, was to pay a sum less than that which he was already obligated to pay to plaintiff. Hence, there was no consideration sufficient to support the purported agreement even if plaintiff's testimony that she did not recall agreeing to defendant's proposal is brushed aside.

Upon this state of the record, viewed in light of the law as we comprehend it to be, we can find no error committed below in rendering the lump sum judgment and, therefore, the first assignment is not well taken.

The second assignment of error states:

'The Court and the referee erred in setting support payments at Thirty Dollars ($3.00) per week per child in spite of the agreement between defendant and plaintiff that they should be Twenty-five Dollars ($25.00) per week per child and further erred in ordering the defendant to pay Fifty-two Dollars ($52.00) per month Blue Cross and Blue Shield for medical payments for the children.'

Although counsel for both parties discuss the matter of hospital care insurance in their briefs and addressed themselves to it in oral argument, we are unable to find any entry of a court order compelling defendant to make such payments which is a part of the orders from which this appeal is taken. It is true that testimony relative to the matter was given and that there was a subsequent colloquy between the referee and counsel with respect thereto, but apparently no order was ever journalized. Consequently, we find that that part of the assignment of error is not supported by the record.

The arguments advanced in support of the assignment are, essentally, that an order of $30 per week per child for support is excessive...