DocketNumber: Case No. 98 CA 247.
Judges: WAITE, J.
Filed Date: 8/10/2000
Status: Non-Precedential
Modified Date: 7/6/2016
On March 1, 1990, Donald N. Keck ("Appellant") and Dorothy L. Keck ("Appellee") were granted a divorce by the Mahoning County Court of Common Pleas, Division of Domestic Relations, Mahoning County, Ohio. The divorce decree incorporated by reference a Separation Agreement signed by the parties. Article 10 of the Separation Agreement provides in relevant part as follows:
"[Appellant] shall pay alimony to the [Appellee] in the amount of Two Thousand Four Hundred Dollars ($2,400.00) per month, which sum shall continue to be payable to the [Appellee] by the [Appellant] until such time as the [Appellee] remarries, takes up cohabitation with another individual in a marital state or otherwise for her life until she dies. Neither the Alimony nor the medical insurance provided for the [Appellee] in Article 3 hereof shall be affected, modified or reduced by any earned income the [Appellee] may earn from any source whatsoever, except Social Security benefits as set forth hereinafter."
The medical insurance provision referenced in Article 3 of the Separation Agreement provides that Appellant shall procure, maintain and pay for Appellee's health insurance, "for so long as [Appellant] owns and operates the business [Reliable Source of Metalwork, Inc.]".
The March 20, 1990, Divorce Decree contains the following provisions:
"1. [Appellee] is granted a final and absolute divorce from [Appellant] based on the acts committed by [Appellant] constituting legal grounds for divorce; and the marital contract and obligations heretofore existing between the parties is hereby terminated and held for naught, and both [Appellant] and [Appellee] are hereby released from all legal and equitable obligations in connection therewith.
"2. The fair and equitable Settlement Agreement of the parties * * * is hereby approved and adopted by this Court and each party is ordered to strictly comply with all of its terms and conditions.
"3. All Exhibits hereto are made a part hereof.
4. All, until further Order of this Court."
Immediately following these typed statements, the following provision was handwritten and initialed by the parties:
"Alimony payments shall be made thru the Child Support Enforcement Agency with poundage commencing 4-1-90."
On May 29, 1998, Appellant filed a Motion to Modify Spousal Support and Terminate Hospitalization. Appellant's motion was based on his assertion that his company was forced to go out of business and that he was now unemployed. Appellee responded on June 18, 1998, by filing a Civ.R. 12 (B) (1) Motion to Dismiss for lack of subject matter jurisdiction.
On July 31, 1998, a hearing was held before a magistrate to address the two pending motions and on August 27, 1998, the Magistrate's Decision was filed. The Magistrate determined that the divorce decree did not contain sufficient language to reserve continuing jurisdiction in order to modify alimony, as required by R.C. §
On September 9, 1998, Appellant timely filed Civ.R. 53 objections to the Magistrate's decision with the trial court. A hearing on Appellant's objections was held on October 27, 1998. By way of a Judgment Entry dated November 20, 1998, the trial court overruled both of Appellant's objections and adopted the Magistrate's Decision in full.
It is this judgment of the trial court which forms the basis for this timely appeal. In his first assignment of error, Appellant argues that:
"THE LOWER COURT ERRED BY FINDING THEY DID NOT HAVE JURISDICTION TO HEAR APPELLANT'S MOTION."
The determination of whether a court has subject matter jurisdiction is a matter of law and is reviewed de novo. Baker v.Terex Div., General Motors Corp. (1989),
"If a continuing order for periodic payments of money as alimony is entered in a divorce * * * that is determined on or after May 2, 1986, and before January 1, 1991, * * * the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the mount or terms of the alimony or spousal support unless the court determines that the circumstances of either party has changed and unless one of the following applies:
"(1) In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated in the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support."
(Emphasis added).
Appellant contends that the boiler plate phrase, "[a]ll until further Order of this Court," contained in his divorce decree satisfies the specific authorization requirement codified in R.C. §
Appellant's argument is unpersuasive. As a preliminary matter, two of the cases cited by Appellant, Kirkwood and Kopich, do not pertain to the applicability of R.C. §
While Wells, supra, does pertain to the applicability of R.C. §
We are presented with an entirely different set of facts in the matter at bar. The separation agreement at issue in this case contains three distinct areas which could arguably be the subject of the reservation of jurisdiction clause: it could apply to the issue of alimony (as argued by Appellant); to the issue of termination of Appellee's health benefits; or to the consequences of Appellee receiving social security benefits. (Separation Agreement, Articles 3 and 10).
Due to this ambiguity, this Court is unable to say that the general reservation of jurisdiction language, "specifically authoriz[es]" the trial court to have jurisdiction over the subject matter of continuing alimony payments. R.C. §
In his second assignment of error, Appellant argues that:
"THE LOWER COURTS ERRED IN THE FINDING THAT APPELLANT WAS STILL EMPLOYED BY RELIABLE SOURCE OF METALWORK, INC."
Appellant correctly contends that the March 1, 1990, Divorce Decree obligates Appellant to provide and pay for Appellee's health insurance only for so long as he owns and operates his business, Reliable Source of Metalwork, Inc. Appellant maintains, however, that he presented sufficient evidence to demonstrate that he was in the process of winding up the affairs of the corporation and that this cannot be reasonably interpreted as, "owning and operating," the business. Therefore, it is obvious that Appellant assigns as error a factual finding of the trial court.
In a domestic relations case, a factual determination by a trial court will not be disturbed on appeal except upon a showing that such a finding was an abuse of discretion. In order to find an abuse of discretion we must find more than an error of law or judgment, but rather, an unreasonable, arbitrary, or unconscionable attitude in the lower court. Blakemore v.Blakemore (1983),
The record before us contains a substantial amount of evidence to support the trial court's determination that Appellant continued to own and operate his business. First, Appellant testified that the corporation had not been dissolved. (Transcript, p. 29). Appellant also testified that he was still the owner of 100% of the company's stock and that he maintained a portion of his files at the place of business. (Transcript, pp. 29-30, 41). He further admitted that he had been to the company the day before the hearing and the previous week. (Transcript, pp. 40-41). In addition, Appellant conceded that the company was still operating to pay taxes and to satisfy creditors. (Transcript, p. 14).
The record is entirely devoid of evidence which would indicate Appellant has even begun the process of dissolving the corporation pursuant to the requirements of R.C. Chapter 1702. Indeed, the only evidence before the trial court was that Appellant was the owner of the business, that the business still exists as a corporation and that the corporation is still operating. As such, there is nothing to suggest that the trial court acted in an unreasonable, arbitrary, or unconscionable fashion when it determined that Appellant continued to own and operate Reliable Source of Metalwork, Inc. and thus, denied his motion to terminate Appellee's health insurance coverage.
Finding no merit in either of Appellant's assignments of error, each are overruled and the judgment of the Mahoning County Court of Common Pleas, Domestic Relations Division, is hereby affirmed.
Cox, P.J., concurs, Donofrio, J., concurs.
______________________ CHERYL L. WAITE, JUDGE