Murphy v. Murphy , 2013 Ohio 5776 ( 2013 )

[Cite as Murphy v. Murphy, 2013-Ohio-5776.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Penelope K. Murphy, :
Plaintiff-Appellee/ :
[Cross-Appellant],
: No. 12AP-1079
v. (C.P.C. No. 76DR-08-2911)
:
Frank B. Murphy, (REGULAR CALENDAR)
:
Defendant-Appellant/
[Cross-Appellee]. :
D E C I S I O N
Rendered on December 30, 2013
Artz, Dewhirst & Wheeler, LLP, and Thomas J. Addesa, for
appellee.
Grossman Law Offices, and Andrew S. Grossman, for
appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
CONNOR, J.
{¶ 1} Defendant-appellant/cross-appellee, Frank B. Murphy ("defendant"),
appeals from a judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, denying the motion for contempt filed by plaintiff-appellee/cross-
appellant, Penelope K. Murphy ("plaintiff'"), denying defendant's objection to the
magistrate's decision, adopting the magistrate's decision, and denying defendant's
motion to modify alimony. Because (1) the trial court abused its discretion in finding
that the alimony award was not independent of the property division, and thus erred as
No. 12AP-1079 2
a matter of law in finding that it lacked jurisdiction to modify the alimony award, but
(2) the trial court did not abuse its discretion in finding that defendant's obligation to
maintain plaintiff as a beneficiary on his life insurance policy had terminated, we
reverse in part and affirm in part, and remand the case to the trial court.
I. FACTS & PROCEDURAL HISTORY
{¶ 2} Defendant and plaintiff were married in 1960 in Newark, Ohio; two
children were born as issue of the marriage. Plaintiff filed a complaint for divorce on
August 23, 1976. Following a hearing, the trial court journalized its judgment entry –
decree of divorce on April 14, 1977 ("decree"). In the decree, the court made an award of
custody, child support, alimony, and entered a property settlement. As pertinent herein,
the decree obligated defendant to pay plaintiff "for her sustenance and support the sum
of One Thousand Two Hundred Dollars ($1,200) per month as permanent alimony until
death, remarriage or cohabitation." (Decree, ¶ 3.) The decree further obligated
defendant to "maintain his present life insurance program, retaining the Plaintiff as
beneficiary on each of the various policies, so long as the Defendant is obligated to pay
child support and alimony." (Decree, ¶ 5.)
{¶ 3} Plaintiff appealed the decree to this court, assigning two errors. We
overruled plaintiff's first assignment of error, but sustained the second assignment of
error. We found the alimony award inadequate and modified the decree, ordering
defendant to pay plaintiff $2,400 per month as permanent alimony until her death,
remarriage, or cohabitation. Murphy v. Murphy, 10th Dist. No. 77AP-354 (Dec. 15,
1977).
{¶ 4} In 1984, plaintiff filed a Civ.R. 60(B) motion. Before the court entered
judgment on plaintiff's Civ.R. 60(B) motion, the parties reached an agreement on the
matter, and presented the court with an Agreed Order and Judgment Entry ("agreed
order"). The court approved the agreed order on June 3, 1985. The agreed order
modified various aspects of the property division and, although the agreed order did not
alter the alimony payments, the parties waived their right to seek a modification of the
alimony provision in the decree.
{¶ 5} On December 11, 2009, plaintiff filed a motion for contempt. Plaintiff
asserted that defendant had disobeyed the decree by removing her as the beneficiary on
No. 12AP-1079 3
his life insurance policy, despite that he was still making alimony payments. On
January 12, 2010, defendant filed a motion to modify his alimony payments based on
changed circumstances. The trial court referred the motions to a magistrate.
{¶ 6} The magistrate issued two decisions on May 2, 2012; one addressed
plaintiff's motion for contempt ("magistrate's life insurance decision"), and the other
addressed defendant's motion for modification of alimony ("magistrate's alimony
decision"). Regarding the life insurance provision, the magistrate held that it was clear
from the decree "and its overall contents that defendant ha[d] a continuing obligation to
maintain the life insurance with plaintiff as the beneficiary until her remarriage,
cohabitation or death." (Magistrate's life insurance decision, 3.)
{¶ 7} Regarding the alimony payments, the magistrate noted that it initially had
to determine whether the trial court had implicitly retained jurisdiction to modify the
alimony award. Under the prevailing law existing prior to 1986, a trial court possessed
inherent jurisdiction to modify an alimony award when the award was for an indefinite
amount and was independent of the property settlement. The magistrate concluded that
the alimony award herein was indefinite, but was not independent of the property
division. In finding that the alimony award was not independent from the property
division, the magistrate relied on Colizoli v. Colizoli, 15 Ohio St.3d 333 (1984), the
magistrate's own marital balance sheet, and this court's decision in Murphy.
{¶ 8} Defendant filed objections to the magistrate's decisions, and asked the
court to set aside the magistrate's life insurance decision. On November 26, 2012, the
trial court issued a decision and entry granting defendant's motion to set aside the
magistrate's life insurance decision, but denying defendant's objection to the
magistrate's alimony decision. The court agreed with defendant that the magistrate's
life insurance decision was dispositive of defendant's defense, in violation of Civ.R.
53(D)(2)(a)(i). Accordingly, the court set aside the magistrate's decision and addressed
plaintiff's motion for contempt. The court determined that the plain language of the
decree obligated defendant to maintain plaintiff as a beneficiary of his life insurance
policy only so long as he was paying both child support and alimony. As defendant was
no longer paying child support, the court concluded that defendant had no obligation to
No. 12AP-1079 4
maintain plaintiff as a beneficiary on his life insurance, and denied the motion for
contempt.
{¶ 9} Regarding the alimony modification issue, the court noted that the
arguments of both counsel were persuasive, "and in the opinion of this Court, equally
persuasive." (Nov. 26, 2012 Decision & Entry, 5.) The court noted that defendant, as
the party desiring to alter the status quo, had the burden of persuasion. The court
concluded defendant failed to carry his burden, finding that the magistrate "did not err
in concluding that the award of spousal support was not independent of the property
division between the parties." Accordingly, the court denied defendant's objection and
affirmed the magistrate's alimony decision. (Nov. 26, 2012 Decision & Entry, 5.)
II. ASSIGNMENTS OF ERROR
{¶ 10} Defendant appeals, assigning the following assignments of error:
[I.] THE TRIAL COURT ERRED AS A MATTER OF LAW
WHEN IT FOUND THAT IT DID NOT HAVE CONTINUING
JURIDICTION TO MODIFY THE CURRENT SPOUSAL
SUPPORT OBLIGATION.
[II.] THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT FOUND THAT THE ALIMONY AWARD IS NOT
INDEPENDENT FROM THE PROPERTY SETTLEMENT.
{¶ 11} Plaintiff cross-appeals, assigning the following error:
I. The trial court erred by ruling that Defendant-Appellant is
no longer obligated to maintain Plaintiff-Cross Appellant as
the beneficiary on his life insurance policies.
III. DEFENDANT'S APPEAL—JURISDICTION TO MODIFY ALIMONY
{¶ 12} Defendant's first assignment of error asserts the trial court erred in
concluding that it lacked jurisdiction to modify the alimony award. Defendant's second
assignment of error asserts the trial court abused its discretion in determining that the
alimony award was not independent of the property division. Because the court's ruling
on the independent nature of the alimony award determined whether the trial court had
implicitly retained jurisdiction to modify the alimony award, we will address these
assignments of error together.
No. 12AP-1079 5
{¶ 13} A trial court retains inherent power to interpret and enforce its own
judgments. Clay v. Clay, 7th Dist. No. 06 BE 40, 2007-Ohio-4638, ¶ 13. When a trial
court must interpret and enforce its prior divorce decree, the court's enforcement of the
decree is reviewed for an abuse of discretion. Id. However, whether a trial court has
jurisdiction to consider a modification of spousal support presents a question of law.
Koehler v. Koehler, 12th Dist. No. CA2012-06-058, 2013-Ohio-336, ¶ 9. Questions of
law are reviewed de novo. Id.{¶ 14} The trial court denied defendant's objection to the magistrate's alimony
decision, and affirmed the magistrate's decision. In ruling on objections to a
magistrate's decision, the trial court must undertake an independent review of the
matters objected to in order "to ascertain [whether] the magistrate has properly
determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d).
Although the trial court reviews the magistrate's decision de novo, this court reviews the
trial court's adoption of a magistrate's decision for an abuse of discretion. Watson v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-606, 2012-Ohio-1017, ¶ 6.
{¶ 15} R.C. 3105.18(E) provides that, for divorce decrees entered on or after
May 2, 1986, the trial court "does not have jurisdiction to modify the amount or terms of
the alimony or spousal support unless the court determines that the circumstances of
either party have changed" and "the decree contains a provision specifically authorizing
the court to modify the amount or terms of alimony or spousal support." R.C.
3105.18(E)(1). A change of circumstances includes but is not limited to, "any increase or
involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical
expenses." R.C. 3105.18(F).
{¶ 16} The decree at issue was journalized in 1977, rendering the version of R.C.
3105.18(E) quoted above inapplicable. For divorce decrees entered prior to May 2,
1986, we look to contemporaneous case law addressing the issue of modification of
spousal support, previously known as alimony. Shaw v. Shaw, 12th Dist. No. CA96-05-
013 (Sept. 30, 1996). Alimony is a term which encompasses two components: a division
of marital assets and liabilities and periodic payments for sustenance and support.
Kaechele v. Kaechele, 35 Ohio St.3d 93, 95 (1988), citing Cherry v. Cherry, 66 Ohio
No. 12AP-1079 6
St.2d 348, 352 (1981). Periodic alimony payments for sustenance or support are known
as sustenance alimony. Shaw at fn. 1.
{¶ 17} Before 1976, the case law regarding a court's continuing jurisdiction to
modify an alimony award distinguished between decrees which were the result of an
agreement between the parties, and decrees which were the result of a contested trial. If
the decree resulted from an agreement, the court lacked jurisdiction to modify the
alimony award, unless the decree specifically reserved such jurisdiction. Popovic v.
Popovic, 45 Ohio App.2d 57, 64 (8th Dist.1975). If the court issued the decree after a
hearing, the court implicitly retained jurisdiction to modify the alimony award if the
alimony award was for an unspecified or an indefinite total amount. Id.{¶ 18} In Wolfe v. Wolfe, 46 Ohio St.2d 399 (1976), the court held that "where an
alimony award is for support only, is for an indefinite amount, and where there is no
property settlement," or "the support award is independent thereof, the jurisdiction of
the court to modify will be implied in the decree irrespective that such support order is
based upon an agreement of the parties." Id. at 419. See also Panzarello v. Panzarello,
61 Ohio App.3d 364, 366-67 (1989). A domestic relations court possesses continuing
jurisdiction to modify sustenance alimony awards in order "to assure that such awards
are continually just." Id. at 419.
{¶ 19} The alimony award in Wolfe was to continue until the wife's remarriage or
death. The court held that such an award was indefinite, as "[t]he occurrence of those
two conditions subsequent [are] necessarily indefinite." Id. at 426. See also Panzarello
at 367 (noting that whether an award is indefinite depends on "whether or not the
period of time is limited by a specified numerical measure"). Likewise, here, the
magistrate correctly determined that the award was indefinite, as the conditions
subsequent of remarriage, cohabitation or death are indefinite.
{¶ 20} The dispute in this case resolves to whether the alimony award is
independent of the property division. The trial court determined that the alimony
award was not independent of the property division. For the reasons that follow, we
find the trial court abused its discretion in reaching that determination.
{¶ 21} In Wolfe, the court had to determine whether the alimony award was
independent of the property division. The court noted that Item 9 of the decree
No. 12AP-1079 7
provided for alimony payments of $35,000 per year for Mrs. Wolfe's "support and
maintenance." Id. at 400. Item 10 of the decree provided that "[a]s a division of
property and in further satisfaction of (Mr.) Wolfe's obligation to support and maintain
Mrs. Wolfe and in addition to the monthly alimony payments," Mr. Wolfe was obligated
to pay Mrs. Wolfe $350,000. Id. The court found the alimony award was independent
of the property division "by reason of the wording in Item 9 that the award [was] '(i)n
satisfaction of Wolfe's obligation to support and maintain Mrs. Wolfe,' " while Item 10
stated that the payment therein was for a division of property. Id. at 419. Accordingly,
the court held that the "clauses [were] clearly separable," such that the trial court had
implicit jurisdiction to modify the alimony award. Id.
{¶ 22} In Shaw, the court also reviewed the language of the decree to conclude
that an award of sustenance alimony was independent of the property division. The
Shaw court noted that the decree did not "mention * * * division of property when
ordering alimony," and "clearly and independently addresse[d] the division of property"
without any "mention of alimony." Id. In St. Clair v. St. Clair, 9 Ohio App.3d 195 (9th
Dist.1983), the court also analyzed the language of the decree to determine whether the
alimony award was independent from the property division. The court noted that the
decree provided for alimony then "further provided for a property division." Id. at 197.
The St. Clair court found "nothing in the decree which would indicate that the alimony
award was intended as anything other than for the support of the plaintiff." Id. See also
id. at syllabus (holding that "[s]upport alimony is indefinite in amount, as contrasted
with the definitive nature of property settlement").
{¶ 23} Pursuant to Wolfe, Shaw, and St. Clair, it is apparent that a court's
analysis, regarding whether an alimony award is independent from the property
division, should consist of a review of the language used in the decree. The review
should consider whether the decree provides separately for a division of property and
sustenance alimony, and consider whether either provision states that the alimony
payments are intended to be part of the property settlement.
{¶ 24} Here, paragraph three of the decree obligates defendant to pay to plaintiff,
"for her sustenance and support," $1,200 each month as permanent alimony. The
alimony paragraph does not indicate that these payments are intended to be part of the
No. 12AP-1079 8
property division. Paragraph six of the decree states that, "[a]s further property
settlement hereunder, the Plaintiff shall receive one-half of the 'distributive income,'
which the Defendant may receive from time to time, from 1333 North Corporation."
(Decree, ¶ 6.) The remaining paragraphs of the decree contain further divisions of the
marital property. The property division paragraphs do not indicate that the alimony
payments are included in the property division. Because the decree provides for the
alimony award and property division in separate paragraphs, and does not indicate that
the alimony award is for anything other than plaintiff's support, the alimony award
herein was independent from the property division.
{¶ 25} The magistrate relied on Colizoli to conclude that the alimony award was
not independent from the property division. Colizoli, however, is distinguishable from
the instant case. The decree in Colizoli ordered joint child support and alimony
payments, and did not specify which portion of the combined payment was for either
obligation. These joint payments were also for a definite period of time, as they were
only to last for 12 years. Id. at 333. The Colizoli court stated that the following three
factors militated against the determination that the joint payments were a division of
marital property: (1) an unidentified portion of the payments were expressly designated
as child support, (2) no other provision for spousal support was made in the decree, and
(3) the total amount of marital assets was determined to be $7,090, while the total
amount of the installment payments exceeded $160,000.
{¶ 26} In reliance on this third factor, the magistrate herein constructed a marital
balance sheet identifying the amount of marital property received by each party. As
plaintiff received marital property with a net value of $160,000 under the decree, but
defendant received property with a net value of $384,508, the magistrate concluded that
the difference demonstrated that the alimony award was intended to be part of the
property division. The Colizoli court, however, never compared the total amount of
marital property received by each party. There, the Supreme Court of Ohio compared
the total, pre-division sum of marital assets to the total, 12-year sum of the combined
alimony and child support payments. Such a comparison would be impossible in the
instant case because the total amount of alimony is unascertainable. Moreover, the
court in Colizoli specifically addressed whether the trial court had implicit jurisdiction
No. 12AP-1079 9
to modify the alimony award and concluded, pursuant to Wolfe, that the court lacked
jurisdiction to modify because the payments were for "a definite amount over a specified
number of years." (Emphasis sic.) Colizoli at 336.
{¶ 27} As we have found no case law which would support the magistrate's
marital balance sheet comparison as a method for determining whether alimony is
independent from a property division, we find the magistrate's comparison of each
party's marital assets to be an abuse of discretion. Compare Kaechele at 95 (regarding a
court's division of marital property, "[e]quitable need not mean equal"). Rather, the
correct analysis is the one utilized in Wolfe, Shaw, and St. Clair, which simply requires
the court to review the language of the decree.
{¶ 28} The magistrate also concluded that, by sustaining the plaintiff's second
assignment of error in Murphy and increasing the amount of alimony, this court
indicated that the alimony award was part of the property division. Plaintiff's second
assignment of error in Murphy asserted that "[t]he property division directed by the
trial court is inadequate and inequitable and constitutes an abuse of the trial court's
discretion." Id. In our analysis of the second assignment of error we stated that the
"property division made by the trial court did not constitute an abuse of discretion
except for its order in paragraph 11 requiring the sale of the residence property." Id. We
held that the sale of the residence should be deferred until the youngest child was
emancipated. Following that modification, we "further [found] that the order of the trial
court in paragraph 3, providing for payment by defendant to the plaintiff for her
sustenance and support, the sum of $1,200.00 per month as alimony * * * [was]
inadequate and against the manifest weight of the evidence." Id. Reviewing the
applicable criteria under R.C. 3105.18, we ordered defendant to pay plaintiff "for her
sustenance and support the sum of $2,400.00 per month as permanent alimony until
death, remarriage, or cohabitation." Id.
{¶ 29} Our decision in Murphy does not indicate that the alimony award was part
of the property division. The decision does not state that the increased alimony award
was intended to equalize the property division. Although we sustained the second
assignment of error, the only portion of the property division which we expressly found
to be an abuse of discretion was the trial court's order that the parties sell the marital
No. 12AP-1079 10
residence immediately. We then separately found the trial court's alimony award
inadequate, and stated that the increased award was for plaintiff's sustenance and
support. As the Murphy decision does not state that the alimony award was part of the
property division, we decline to interpret our decision as containing such an indication.
{¶ 30} Finally, the magistrate held that even if the court possessed jurisdiction to
modify the award, the 1985 agreed order clearly precluded further modification of the
decree. The magistrate found that the testimony of the parties regarding their
understanding of the agreed order, and "the fact that neither party has asked for any
modification of anything in the decree for nearly 25 years, including child support, is
consistent with the magistrate's conclusion that the court lacks jurisdiction to modify
alimony." (Magistrate's alimony decision, 13-14.)
{¶ 31} In the agreed order, the parties unambiguously waived their right to seek
modification of the portions of the decree relating to alimony. The parties agreed that
neither would "seek further modification of, or relief from, any term or provision of the
Decree of Divorce, as amended, relating to alimony or support," and expressly
acknowledged "that by affixing their signatures to this [agreed order], they [were]
waiving and forever relinquishing their rights to seek further modification of, or relief
from, each of the alimony and/or support provisions of the Decree." (Agreed Order,
¶ 4.) Accordingly, their can be no dispute that the parties waived their right to seek
modification of the alimony award.
{¶ 32} The trial court, however, denied defendant's objections to the magistrate's
alimony decision because it found the magistrate properly determined that the court
lacked jurisdiction to modify the alimony award. Although the parties could agree to
waive their right to seek a modification, they could not agree to divest the court of its
jurisdiction to modify the alimony award. See Condit v. Condit, 190 Ohio App.3d 634,
2010-Ohio-5202, ¶ 13 (1st Dist.) (stating that while the parties "could not waive the
court's statutory jurisdiction," they could "waive the right to seek modification of
spousal support as a contractual matter between themselves" in their separation
agreement); Bohl v. Hauke, 180 Ohio App.3d 526, 2009-Ohio-150, ¶ 11 (4th Dist.)
("Parties to a contract cannot oust a court of jurisdiction by agreement").
No. 12AP-1079 11
{¶ 33} Accordingly, on the narrow issue before us, we conclude that the trial court
abused its discretion in adopting the magistrate's alimony decision, as the decree
separately provided for sustenance alimony and a division of marital property. Because
the alimony award was independent of the property division, and was indefinite as to
amount and duration, the trial court possessed implicit jurisdiction to modify the
alimony award. On remand, the trial court may exercise its jurisdiction and apply the
waiver contained in the agreed order.
{¶ 34} Based on the foregoing, defendant's first and second assignments of error
are sustained.
IV. PLAINTIFF'S CROSS-APPEAL—LIFE INSURANCE
{¶ 35} Plaintiff's sole assignment of error on cross-appeal asserts the trial court
erred by ruling that defendant was no longer obligated to maintain plaintiff as a
beneficiary on his life insurance policies.
{¶ 36} As noted above, a trial court retains inherent power to interpret and
enforce its own judgments, and the court's interpretation is reviewed for an abuse of
discretion. Clay at ¶ 13. Abuse of discretion connotes more than an error of law or
judgment; it implies that the court's attitude was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). This court may
not substitute its own judgment for that of the trial court in reviewing for an abuse of
discretion. Bowen v. Bowen, 132 Ohio App.3d 616, 626 (9th Dist.1999), citing In re
Jane Doe 1, 57 Ohio St.3d 135, 137 (1991).
{¶ 37} If the words and language in a judgment or decree are free of ambiguity,
and appear to express clearly and plainly the sense intended, there is no need to resort
to other means of interpretation. Rohr v. Williams, 7th Dist. No. 06 MA 171, 2007-
Ohio-7207, ¶ 21. "An ambiguous order is one that is unclear or indefinite and is subject
to more than one rational interpretation." Id. at ¶ 22. "If the language is ambiguous,
then the trial court has broad discretion when clarifying that ambiguous language." Id.
If a judgment is susceptible to two possible interpretations, we must adopt the
interpretation which gives effect to the judgment in its entirety without eliminating part
of the judgment. Ward v. Ward, 13 Ohio App.3d 302, 303 (10th Dist.1983).
No. 12AP-1079 12
{¶ 38} Paragraph five of the decree obligated defendant to "maintain his present
life insurance program, retaining the Plaintiff as beneficiary on each of the various
policies, so long as the Defendant is obligated to pay child support and alimony."
(Decree, ¶ 5.) The parties did not appeal this provision to the court in 1977, and they did
not modify this provision in the agreed order. Because neither party appealed this
provision during the 1977 appeal, the propriety of the provision is now res judicata. See
Grava v. Parkman Twp., 73 Ohio St.3d 379, 382 (1995); In re K.B., 10th Dist. No.
05AP-783, 2006-Ohio-3104, ¶ 8 (noting that "[r]es judicata prevents the litigation of
issues that were raised on appeal or could have been raised on appeal").
{¶ 39} Accordingly, the sole issue before this court is whether the trial court
abused its discretion in interpreting the phrase "child support and alimony," as that
phrase is used in paragraph five of the decree. The magistrate concluded that it was
clear from the overall contents of the decree that defendant had to maintain plaintiff as
a beneficiary of his life insurance so long as he was paying her alimony. The trial court,
however, concluded that defendant's obligation to maintain plaintiff on his life
insurance policy was to last only while defendant was simultaneously paying both child
support and alimony. The court noted that the life insurance provision specifically
stated "child support and alimony; not child support or alimony." (Emphasis sic.)
(Nov. 26, 2012 Decision & Entry, 3.)
{¶ 40} If this court were reviewing the life insurance provision de novo, we would
be inclined to interpret the phrase "child support and alimony" in the disjunctive. See
Clagg v. Baycliffs Corp., 82 Ohio St.3d 277, 280 (1998), quoting R.C. 1.02 (noting the
principal of statutory construction which holds that "although the word 'and' is usually
interpreted in the conjunctive, we are permitted to interpret it in the disjunctive 'if the
sense requires it' "); Campbell v. Campbell, 5th Dist. No. 12 AP 0001, 2012-Ohio-3059,
¶ 3, 18 (interpreting a similar provision in a divorce decree which obligated the
defendant to maintain the plaintiff as a beneficiary of his life insurance policy "for so
long as he [was] obligated to pay child support and alimony" in the disjunctive, as it
appeared "unreasonable that the policy requirement would have expired as soon as the
* * * child support payments ceased" because, "[i]f that were the case, it would not have
been necessary to mention the alimony obligation at all in the contractual phrase"). By
No. 12AP-1079 13
providing for indefinite alimony payments and obligating defendant to maintain
plaintiff as a beneficiary on his life insurance policies, it appears the author of the decree
intended to provide for plaintiff's continued support, even in the unfortunate event of
defendant's death.
{¶ 41} Nevertheless, although there are convincing reasons to interpret the
phrase "child support and alimony" in the disjunctive in these circumstances, we cannot
find that the trial court's interpretation of the phrase amounted to an abuse of
discretion. The word "and" is generally read in the conjunctive, and reading the word
"and" in the conjunctive does not eliminate any part of the decree. Accordingly, the trial
court's interpretation of the life insurance provision as obligating defendant to maintain
plaintiff as a beneficiary of his life insurance policy only so long as he was actively
paying both obligations, was not unreasonable, arbitrary or unconscionable.
{¶ 42} Based on the foregoing, plaintiff's sole assignment of error on cross-appeal
is overruled.
V. DISPOSITION
{¶ 43} Having sustained defendant's first and second assignments of error, but
having overruled plaintiff's assignment of error on cross-appeal, we affirm the portion of
the judgment from the Franklin County Court of Common Pleas, Division of Domestic
Relations regarding the life insurance provision, but reverse the portion of the judgment
regarding jurisdiction and remand the cause for proceedings consistent with this
decision.
Judgment affirmed in part
and reversed in part;
cause remanded.
KLATT, P.J., and BROWN, J., concur.
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