[Cite as In re Juergensen, 2011-Ohio-5805.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

IN RE:                                           JUDGES:
                                                 Hon. William B. Hoffman, P.J.
ELIZABETH INKINEN-JUERGENSEN,                    Hon. Sheila G. Farmer, J.
                                                 Hon. John W. Wise, J.
         Appellee,
                                                 Case No. 2011CA00102
v.

JOHN JUERGENSEN,                                 OPINION

         Appellant.



CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Domestic Relations
                                              Division, Case No. 2009DR00774


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        November 7, 2011


APPEARANCES:


For Appellee                                  For Appellant


SUSAN PUCCI                                   JOHN L. JUERGENSEN
4429 Fulton Dr. N.W.                          John L. Juergensen Co., LPA
Canton, Ohio 44718                            Washington Square Office Park
                                              6545 Market Avenue North
                                              North Canton, Ohio 44721
Stark County, Case No. 2011CA00102                                                        2

Hoffman, P.J.


       {¶ 1} Appellant John Juergensen (“Husband”) appeals the April 4, 2011

Judgment Entry entered by the Stark County Court of Common Pleas, Domestic

Relations Division, which denied his post-decree motion for a reduction of spousal

support. Appellee is Elizabeth Inkinen-Juergensen (“Wife”).

                           STATEMENT OF THE FACTS AND CASE

       {¶ 2} Husband and Wife were married on July 31, 1993. Two children were

born as issue of said union. Via Judgment Entry/Decree of Divorce, filed August 4,

2009, the trial court granted the parties’ Petition for Dissolution and adopted the parties’

Separation Agreement as part of the Decree.

       {¶ 3} Pursuant to the Separation Agreement, Husband was ordered to pay Wife

an amount equal to one-half of his income through a combination of spousal support

and child support.     The terms of the Separation Agreement set child support at

$700/month, and spousal support at $1,700/month. With respect to spousal support,

the Separation Agreement provided, “In no event, will the amount of spousal support be

less than [$1,700].” The trial court maintained jurisdiction over the issue of spousal

support, “To effectuate the intent of the parties”, but the trial court did not retain

jurisdiction over “the duration or length of spousal support”.

       {¶ 4} On August 23, 2010, Husband filed a motion for modification of spousal

support, seeking to reduce the amount of his monthly spousal support obligation. The

trial court conducted a hearing on Husband’s motion on September 13, 2010. On that

same day, Wife filed a motion to show cause, asking the trial court to find Husband in

contempt for failing to comply with several provisions of the Decree, including non-
Stark County, Case No. 2011CA00102                                                        3


payment of spousal and child support. The trial court continued the hearing at the

parties’ request for additional discovery and briefing.

       {¶ 5} Via Judgment Entry filed April 4, 2011, the trial court found it lacked

subject matter jurisdiction to reduce Husband’s spousal support obligation below

$1,700/month pursuant to Article II, Section 2 of the Separation Agreement.

       {¶ 6} It is from this Judgment Entry Husband appeals, raising the following

assignment of error:

       {¶ 7} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING

THAT THE COURT LACKS JURISDCITION TO LOWER APPELLANT’S SPOUSAL

SUPPORT OBLIGATION.”

       {¶ 8} Husband      submits    the   Separation     Agreement   expressly   reserved

jurisdiction to the trial court to modify spousal support. The Separation Agreement

provides the reservation of jurisdiction in the trial court was “to effectuate the intent of

the parties”. Husband contends the intent of the parties was for Wife to have one-half of

Husband’s income, and implicit in that intent was the ability of the trial court to increase

or decrease spousal support pursuant to Husband’s gross income. We disagree.

       {¶ 9} “Once a separation agreement is incorporated into a divorce decree, the

agreement is superseded by the decree and its terms are imposed not by contract, but

by the decree. Greiner v. Greiner (1979), 61 Ohio App.2d 88, 399 N.E.2d 571, citing

Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 350 N.E.2d 413; Robrock v. Robrock (1958),

167 Ohio St. 479, 150 N.E.2d 421; Newman v. Newman (1954), 161 Ohio St. 247, 118

N.E.2d 649; Law v. Law (1901), 64 Ohio St. 369, 60 N.E. 560.” Lisboa v. Lisboa,

Cuyahoga App. No. 95673, 2011-Ohio-351, at para. 14.
Stark County, Case No. 2011CA00102                                                    4

        {¶ 10} In Holloway v. Holloway (1935), 130 Ohio St. 214, 198 N.E. 579, 580, the

Ohio Supreme Court unanimously held, where an agreement is incorporated in a

decree, the agreement is superseded by the decree, and the obligations imposed are

not those imposed by contract but are those imposed by decree and are enforceable as

such.

        {¶ 11} Holloway involved a question of alimony. However, the Ohio Supreme

Court in Robrock v. Robrock (1958), 167 Ohio St. 479, 150 N.E.2d 421, overruled in

part by Nokes v. Nokes (1976), 47 Ohio St.2d 1, 351 N.E.2d 174, found the rationale

“equally appropriate to a question involving an agreement relating to minor children”.

Citing Holloway, the Robrock Court stated:

        {¶ 12} “ ‘A decree granting divorce and awarding alimony is an order of court in

the enforcement of which the public has a vital interest. An alimony obligor is not

exempt from the operation of the decree by reason of the separation agreement. To

hold otherwise would be to reduce the status of a divorce and alimony decree to that of

a commercial transaction. Marriage, however, is not a matter of commerce, nor is it

merely a contract between the parties. Marriage is a basic social institution of the

highest type and importance, in which society at large has a vital interest.

        {¶ 13} “ ‘Where a court, in its divorce decree, adopts the language of a

separation agreement, it does not thereby reduce the status of the decree to that of a

mere contract. While a contract may become a decree of court, a decree of court cannot

assume the status of a mere contract. The right to alimony does not arise from any

business transaction, but from the relation of marriage.’” Id. at 483.
Stark County, Case No. 2011CA00102                                                     5


       {¶ 14} In order to modify a spousal support award, a trial court must specifically

reserve jurisdiction in its divorce decree or a separation agreement incorporated into

said decree. R.C. 3105.18(E); Bear v. Bear, Fifth App. Case Nos. 2004AP060042,

0043, 2005-Ohio-1490.     The question before us is whether the parties’ separation

agreement earlier gave the trial court jurisdiction to reduce the spousal support award

below $1700/month.

       {¶ 15} When parties dispute the meaning of a clause in their separation

agreement, the trial court must first determine whether the clause is ambiguous.

Butcher v. Butcher, 2011-Ohio-2550 (citation omitted). However, if the terms of the

separation agreement are unambiguous, a trial court may not clarify or interpret those

terms. Id.    “If the language of a written instrument is clear and unambiguous, the

interpretation of the instrument is a matter of law and the court must determine the

intent of the parties using only the language employed.” Woronka v. Woronka, Fifth

District App. No. 2010CA00193, 2010-Ohio-498, at paragraph 19.

       {¶ 16} The Separation Agreement at issue herein specifically provides Husband

is to pay Wife a monthly amount equal to one-half of his gross income as spousal

support, and less any amount of child support. At the time of the decree, the spousal

support award was $1,700/month, and “In no event, will the amount of spousal support

be less than this.”

       {¶ 17} We find the Separation Agreement clearly and unambiguously provides

the parties’ intent was for Wife to have one-half of Husband’s income, at an amount not

less than $1,700/month, less child support. While we find the trial court did, in fact,

reserve jurisdiction over the amount of spousal support, we find it correctly determined
Stark County, Case No. 2011CA00102                                                6


the agreement unambiguously stated spousal support would not be less than

$1,700/month.

       {¶ 18} Husband’s sole assignment of error is overruled.

       {¶ 19} The judgment of the Stark County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE
Stark County, Case No. 2011CA00102                                                  7


               IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


IN RE:                                      :
                                            :
ELIZABETH INKINEN-JUERGENSEN,               :
                                            :
         Appellee,                          :
                                            :
v.                                          :        JUDGMENT ENTRY
                                            :
JOHN JUERGENSEN,                            :
                                            :
         Appellant.                         :        Case No. 2011CA00102


         For the reasons stated in our accompanying Opinion, The judgment of the Stark

County Court of Common Pleas, Domestic Relations Division, is affirmed.         Costs

assessed to Appellant.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER


                                            s/ John W. Wise______________________
                                            HON. JOHN W. WISE
