[Cite as Manos v. Manos, 2012-Ohio-2281.]


STATE OF OHIO                   )                   IN THE COURT OF APPEALS
                                )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

TAMMY J. MANOS                                      C.A. No.       26017

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
CHRIS G. MANOS                                      COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   2007 04 1331

                               DECISION AND JOURNAL ENTRY

Dated: May 23, 2012



        GALLAGHER, J.

        {¶1} Appellant, Tammy J. Manos (“Wife”), appeals from the judgment of the Summit

County Court of Common Pleas, Domestic Relations Division, that was issued on June 8, 2011.

For the reasons that follow, we reverse the decision of the trial court and remand for corrections

to the judgment entry of divorce.

        {¶2} On December 2, 2008, the trial court issued a judgment entry of divorce for Wife

and appellee, Chris G. Manos (“Husband”). Wife appealed that judgment. In relevant part, the

appellate court found that there were inconsistencies as to the duration of spousal support

requiring clarification, that there were inconsistencies with the findings of fact as to who was

responsible for certain bills, and that the trial court erred by not determining the amount of

arrearage Husband owed to Wife, including with regard to temporary spousal support. Manos v.

Manos, 9th Dist. No. 24717, 2010-Ohio-1178, ¶ 30, 38-43 (“Manos I”). The case was remanded

for the trial court to address these issues. Id.
[Cite as Manos v. Manos, 2012-Ohio-2281.]

        {¶3} Upon remand, the trial court conducted a hearing. Thereafter, the court issued a

judgment entry on June 8, 2011, which reprinted its earlier judgment with modifications. The

court again found Wife was entitled to spousal support for nine years and recognized husband

had been paying for nearly two years. The court then ordered a spousal support term of 84

consecutive months, from the time of judgment.           The court further found Husband was

responsible for an arrearage of $4,955 for utilities, medical expenses, condo fees, and auto

repairs, and that “spousal support was current.” It is from this judgment that Wife now appeals.

        {¶4} Wife raises two assignments of error for our review, which provide as follows:

        1. The trial court erred by failing to incorporate in its judgment entry the term of
           spousal support agreed to by the parties.

        2. The trial court erred by failing to incorporate in its judgment entry the parties’
           agreement regarding the amount owed by Mr. Manos for Temporary Support
           Arrearages.

        {¶5} A trial court must follow the mandate of an appellate court when a case is

remanded. Graham v. Graham, 98 Ohio App.3d 396, 400, 648 N.E.2d 850 (2d Dist.1994).

Moreover, the trial court may not extend or vary the mandate given. Nolan v. Nolan, 11 Ohio

St.3d 1, 4, 462 N.E.2d 410 (1984).

        {¶6} In the December 2, 2008 judgment entry of divorce, the trial court determined

relative to the spousal support award

        that Wife is entitled to spousal support for a period of nine years * * * that
        Husband has been paying spousal support for nearly two years * * * [and that]
        Husband shall pay, as spousal support the sum of Fifteen Hundred Dollars
        ($1,500) a month for seventy two (72) consecutive months or until Wife shall
        remarry or die.

        {¶7} In Manos I, the order was found inconsistent because “the court ordered nine years

of support with credit for nearly two years but then ordered support for 72 months, which is only
six years.” Manos, 9th Dist. No. 24717, 2010-Ohio-1178, at ¶ 30. At the hearing on remand, the

trial court acknowledged that it had used two different numbers for the term of spousal support in

the divorce decree. The court stated as follows: “[W]hat I wanted was nine years basically from

the start of temporary.” Wife’s attorney then expressed the apparent agreement that “since the

Temporary Order started July 1, 2007, that spousal [support] would go for nine years or through

June 30, 2016.” The court agreed, stating, “Yeah. Right, we’ve taken care of that. That’s not a

problem.”

       {¶8} Despite the court’s indication that spousal support was to run nine years from the

start of temporary spousal support, which was on July 1, 2007, the trial court’s June 8, 2011

judgment entry stated the following:

       Wife is entitled to spousal support for a period of nine years. The Court finds that
       Husband has been paying spousal support for nearly two years. It is, therefore,
       further ORDERED, ADJUDGED and DECREED that Husband shall pay, as
       spousal support, the sum of Fifteen Hundred Dollars ($1,500) a month for eighty
       four (84) consecutive months (at the time of Judgment) or until Wife shall
       remarry or die.

       {¶9} Wife argues that there are two judgment entries, one dated December 2, 2008, and

one dated June 8, 2011, and that the term of spousal support remains unclear. She claims the

trial court erred by using a nonspecific phrase and failing to incorporate the definite term of

spousal support agreed to at the hearing. Husband argues that there was no agreement between

the parties on the term of spousal support. He further argues that the court rectified its prior

entry by extending the term from 72 months to 84 months and incorporating the balance.

       {¶10} Our review reflects that the trial court again expressed two inconsistent terms for

spousal support. First, the court indicated a term of nine years, which was intended to run from

the start of temporary spousal support. Then, the court expressed a term of 84 consecutive
months (equating to seven years) “at the time of Judgment.” While it would seem logical that

the court was referring to the original judgment entry of divorce, the 84-month term falls

approximately seven months short of a period of nine years from the start of temporary spousal

support. Thus, an inconsistency remains within the trial court’s order.

       {¶11} We recognize the trial court conducted a hearing to resolve the issues before it on

remand. Nonetheless, because the judgment entry did not contain the clarification attained at the

hearing and still remained inconsistent in the duration of spousal support, the court fell short of

complying with our mandate. Because the court’s intent is apparent from the record, we modify

the court’s order to reflect spousal support shall run through June 30, 2016, or until Wife shall

remarry or die.

       {¶12} Next, the trial court was to determine the amount of arrearage Husband owed to

Wife, including for temporary spousal support, and his responsibility for other items. At the

hearing, Wife’s attorney represented that the parties agreed there was an arrearage owed for

temporary spousal support, and that they only disagreed on the amount. Wife claimed there was

an arrearage of $6,967, while Husband claimed there was an arrearage of $4,717, for a difference

of $2,250. Husband purportedly had two checks showing the disputed amount was paid. It was

indicated that if Husband could produce the two checks, he would receive credit for those

figures.   Husband’s attorney represented that Husband had the checks and they would be

provided to the court. The court proceeded to address Husband’s responsibility and amounts

owed for certain bills, expenses, and other items.

       {¶13} There is no evidence in the record to reflect whether the two spousal support

checks were ever produced to the court. It would appear from the record that in the absence of
proof of payment from husband, an arrearage of $6,967 was owed. Despite the representations

to the court, the trial court’s June 8, 2011 judgment entry indicated that “Husband shall be

responsible for any arrearage on the temporary spousal support order of the Court” and that

“spousal support was current.”

       {¶14} Wife argues that the trial court’s finding is inconsistent with the agreement reached

before the court. Husband claims that the court specifically found he was obligated for an

arrearage in the sum of $4,955. However, that sum represented amounts owed for items apart

from temporary spousal support, i.e., utilities, medical expenses, condo fees, and auto repairs. It

is unclear from the record how the trial court arrived at the conclusion that spousal support was

current. Because we are unable to ascertain from the record whether the two support checks

were ever produced or whether spousal support was made current by the time of the trial court’s

entry, we must remand the matter for the trial court to make the appropriate determination and

make any necessary corrections to the judgment entry of divorce.

       {¶15} Upon remand, the trial court is instructed to correct the judgment of divorce to

reflect (1) that spousal support shall run through June 30, 2016, or until Wife shall remarry or

die, and (2) the correct amount of arrearage, if any, in the payment of temporary spousal support.

                                                                             Judgment reversed;
                                                                    case remanded for correction.




       There were reasonable grounds for this appeal.
       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     SEAN C. GALLAGHER
                                                     FOR THE COURT



MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR

(Sitting by assignment: Sean C. Gallagher, Judge, Melody J. Stewart, Presiding Judge, and James
J. Sweeney, Judge, of the Eighth District Court of Appeals.)


APPEARANCES:

DAVID FERGUSON, Attorney at Law, for Appellant.

DON LOMBARDI, Attorney at Law, for Appellee.
