DocketNumber： 2357
Citation Numbers： 140 N.E.2d 906, 104 Ohio App. 105, 74 Ohio Law. Abs. 408, 4 Ohio Op. 2d 177, 1956 Ohio App. LEXIS 609
Judges： Deeds, Conn, Hornbeck
Filed Date： 4/20/1956
Status： Precedential
Modified Date： 10/19/2024
The decree of the trial court in this case, of date September 26, 1935, so far as pertinent to the errors assigned on this appeal, is:
"Defendant shall pay plaintiff as alimony the sum of twenty dollars ($20) per month * * *."
"As to the amount to be paid to plaintiff, the sum ordered is deemed to be reasonable, and is to be the order of this courtunless the financial status of the plaintiff is changed towarrant the court's modification of this order." (Emphasis ours.)
Evidently, the word, "alimony," is used in the order as meaning support. These terms are frequently used interchangeably.
The motion for a modification by increase of the support order sets forth three reasons: (1) defendant's financial circumstances have improved greatly since the original decree, (2) plaintiff is now in ill health and unable to support herself, and (3) the general decrease in the value of money has caused the original allowance to become totally inadequate.
Defendant-appellant assigns as error that the trial judge improperly based his order fixing the monthly payments for support at $40 instead of $20 on a finding that defendant's financial circumstances had improved since the original order. We agree that such a finding would not alone support the order.
Generally, a support order is subject to modification upon a showing of changed conditions unless the court in the order exhausts its jurisdiction as to the order. Here, the trial judge originally had the authority to fix and define the amount of the "alimony" (support) and the terms and conditions thereof. The one basic condition upon which the alimony order can be modified is a change of financial status of plaintiff.
The support money order is final but for the reserved exception. Petersine v. Thomas,
The judge who heard the motion to modify recognized the condition which should justify an increase. In the record appears the following:
"Court: It seems to me that you have predicated your *Page 107 motion on the fact that her financial status is different than it was at the time of the decree.
"Mr. Jennings: By virtue of the fact that she is now ill and unable to support herself."
The court also showed a full appreciation of the purpose of the testimony tending to prove that defendant's financial status had improved. While defendant was on the stand for cross-examination, the following comments were made:
"Q. (by counsel for plaintiff): What was your approximate income for 1953?
"Objection and statements of counsel.
"Court: I think the decree recites that the court would have the right to modify depending upon the financial condition of the plaintiff, and if it be shown that a condition has arisenwhere the modification is in order, I believe that the courtwould have a right to consider the ability of the defendant tostand any modification and for that reason it might bepertinent." (Emphasis ours.)
The court overruled the objection.
The evidence developed that during the 18 years succeeding the original support order plaintiff had earned and received from other sources rather substantial sums of money. Whether she was provident in the use and control of these funds might be arguable. However, this was not the test which the court had to apply in determining whether the order should be modified. It was her financial status at the time the motion to modify was filed.
From the plaintiff's testimony that she was, and had been for some time prior to the hearing on the motion, ill and unable to work and from the professional statements of several physicians whom she had consulted, the court had full right to find with the plaintiff and that her total income, including the $20 per month which defendant was to pay her for her support, was $140 per month.
It is true, as contended by defendant that there is room for controversy as to the statements of the physicians as to the nature and extent of plaintiff's disability, and, happily, if they are correct, it may not be as serious as she believes it to be. *Page 108 But that she is sick and unable to work is probable from the medical testimony.
Objection is made to the consideration by the court of the devaluation of the dollar in arriving at the amount of the increase. It is obvious that the present amount ordered to be paid is no greater in purchasing power than the sum originally fixed. If that order had not been left open for modification then the change in the value of the dollar would not in and of itself justify the modification. Upon the situation here presented, it was proper for the court to consider it, but it is indeed doubtful as to the amount fixed if its consideration could in any view prejudice the defendant inasmuch as there has not been, in fact, any increase in purchasing power by the amount of the support order.
A full consideration of all the errors assigned, in the light of the proof made upon the record, is convincing that no error assigned is well made, and that the trial judge acted within the terms of the original order in making the modification.
The judgment is affirmed.
Judgment affirmed.
CONN and DEEDS, JJ., concur.
CONN and DEEDS, JJ., of the Sixth Appellate District, sitting by designation in the Second Appellate District. *Page 109