Colley v. Colley , 43 Ohio St. 3d 87 ( 1989 )

Douglas, J.

The sole issue in this case is whether a separation agreement, executed in 1985 and subsequently incorporated into a dissolution decree, wherein the parties agreed to the court’s continuing jurisdiction over sustenance alimony payments, gave the court authority to modify alimony payments.

In Ohio, dissolution is a form of no-fault divorce where the court can terminate a marriage pursuant to the parties’ joint request. In fact,'a reading of R.C. Chapter 3105 reveals that mutual consent is the cornerstone of Ohio’s dissolution law. Knapp v. Knapp (1986), 24 Ohio St. 3d 141, 24 OBR 362, 493 N.E. 2d 1353.

Pursuant to R.C. 3105.63, a petition for the dissolution of marriage must be signed by both spouses. The petition must be accompanied by a separation agreement agreed to by both parties which shall provide for “* * * a division of all property, alimony, and, if there are minor children of the marriage, for custody of minor children, child support, and visitation rights. * * *” R.C. 3105.63 as it existed at the time of the Colleys’ separation agreement. See Am. H.B. No. 370 (136 Ohio Laws, Part II, 2452). If these conditions are met, the dissolution action then proceeds to a final hearing. Again, mutual consent is the key because if either spouse at the final hearing is not satisfied with the terms of the separation agreement or has a change of heart about dissolving the marriage, the court must dismiss the petition. Knapp, supra.

The court’s statutory authority to modify the terms of a marriage dissolution is granted in R.C. 3105.65(B). R.C. 3105.65(B), as originally enacted in 1974, provided in pertinent part:

“* * * The court has full power to enforce its decree, and retains jurisdiction to modify all matters of custody, child support, visitation, and periodic alimony payments.” (Emphasis added.) (135 Ohio Laws, Part II, 603, 616.)

In 1975, the General Assembly amended R.C. 3105.65(B) by deleting the words “and periodic alimony payments.”¹

Based on R.C. 3105.65(B) as amended in 1975, this court held in McClain v. McClain (1984), 15 Ohio St. 3d 289,15 OBR 421, 473 N.E. 2d 811, syllabus, that a court of common pleas did not have jurisdiction to modify a provision for periodic sustenance alimony payments in a dissolution of marriage.

However, both McClain and R.C. 3105.65(B) as amended in 1975 are silent concerning the effect of the parties’ agreeing to a provision for court modification of alimony payments in a separation agreement incorporated in a dissolution decree.²

Accordingly, we hold that under R.C. 3105.65(B), as amended effective August 1, 1975, a court may retain jurisdiction to modify alimony payments provided for in a separation agreement by parties to a dissolution where the parties have agreed to such continuing jurisdiction and the agreement has been incorporated in a decree of dissolution of marriage. With our holding, we preserve the right of these parties to have established the terms of their agreement as a predicate to their dissolution.

The seemingly contrary holdings of McClain and Knapp were premised on the fact that absent specific authority to do so, a trial court had no authority to change the agreement of the parties. Those cases, and this one, provide no reason why the sanctity of the right to contract should be disturbed. Nor does such a holding permit parties to confer jurisdiction on a court. There was nothing in the statute that prohibited the parties from seeking the assistance of the court in resolving any differences they encountered over the amount and terms of the alimony payments. Likewise, there was nothing in the statute that prohibited the court from providing that assistance if the parties agreed on such a procedure.

In addition, the subsequent amendment of R.C. 3105.65(B) lends further support to our holding. Amended R.C. 3105.65(B), effective May 2, 1986,³ when read in conjunction with amended R.C. 3105.18(D)(2),⁴ which became effective on the same date, states that a court retains jurisdiction to modify the amount and terms of alimony in the case of a dissolution of marriage if the court determines that the circumstances of either party have changed and the separation agreement incorporated into the dissolution decree contains a provision specifically authorizing the court to modify the amount or terms of alimony. Otherwise, the court that enters the dissolution decree does not have jurisdiction to modify the alimony amount or terms.

In summary, the parties’ marriage was dissolved in 1985. The Colleys agreed in Article 6 of their separation agreement, incorporated into the dissolution decree, that the court would have continuing jurisdiction over the alimony payments. The parties also agreed on the $900 monthly alimony payment based on the expectation that appellee would continue to have gross earnings at least equivalent to the amount’he was earning when the parties entered into the agreement.

Based on the language of the agreement, it is evident that the Colleys agreed that the court, under proper circumstances, could modify the alimony terms. Nothing in the law prohibited them from doing so.⁵

Accordingly, we affirm the court of appeals’ decision to remand this case to the common pleas court for a determination of whether the terms of appellee’s alimony obligation should be modified.

Judgment affirmed.

Sweeney, Holmes, Wright, H. Brown and Resnick, JJ., concur. Moyer, C.J., dissents.

1 R.C. 3105.65(B), as amended in 1975, provided:

“If, upon review of the testimony of both spouses, and of the report of the investigator pursuant to Civil Rules, the court approves the separation agreement and any amendments thereto agreed upon by the parties, it shall grant a decree of dissolution of marriage incorporating the separation agreement. A decree of dissolution of marriage has the same effect upon the property rights of the parties, including rights of dower and inheritance, as a decree of divorce. The court has full power to enforce its decree, and retains jurisdiction to modify all matters of custody, child support, and visitation.” (136 Ohio Laws, Part II, 2451, 2452.)

2 Merrill v. Merrill (1985), 26 Ohio App. 3d 201, 26 OBR 422, 499 N.E. 2d 13, held- that a court retains jurisdiction to modify alimony payments if provided for in a separation agreement incorporated in a decree of dissolution of marriage. Alban v. Alban (1981), 1 Ohio App. 3d 146, 1 OBR 454, 439 N.E. 2d 963, also implied such a holding.

3 Amended R.C. 3105.65(B), effective May 2, 1986, provides:

“If, upon review of the testimony of both spouses, and of the report of the investigator pursuant to the civil rules, the court approves the separation agreement and any amendments to it agreed upon by the parties, it shall grant a decree of dissolution of marriage that incorporates the separation agreement. A decree of dissolution of marriage has the same effect upon the property rights of the parties, including rights of dower and inheritance, as a decree of divorce. The court has full power to enforce its decree, retains jurisdiction to modify all matters of custody, child support, and visitation, and, only in accordance with division (D)(2) of section 3105.18 of the Revised Code, has authority to modify the amount or terms of alimony.” (141 Ohio Laws, Part II, 3388, 3390.)

4 Amended R.C. 3105.18(D)(2), effective May 2, 1986, provided:

“If a continuing order for periodic pay-merits of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after the effective date of this amendment, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony unless the court determines that the circumstances of either party have changed and unless one of the following applies:

ua< * *

“(2) In the case of a dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony.” (141 Ohio Laws, Part II, 3388, 3389.)

Subsequently, there has been a slight modification of this section, but the thrust of the section remains the same.

5 It should be noted that modification in this case, upon proper motion and circumstances, could include an increase in amount or duration as well as a reduction.