[Cite as Hague v. Kosicek, 2019-Ohio-2089.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


 CARLA R. HAGUE,                                   :        OPINION

                   Plaintiff-Appellant,            :
                                                            CASE NO. 2018-A-0060
         - vs -                                    :

 MAURI KOSICEK, EXECUTOR OF THE :
 ESTATE OF CHARLES G. HAGUE,

                   Defendant-Appellee.             :


 Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018 CV
 00199.

 Judgment: Affirmed.


 Gary L. Pasqualone, Curry and Pasqualone, 302 South Broadway, Geneva, Ohio 44041
 (For Plaintiff-Appellant).

 David E. Lowe and Katie E. Christman, Thrasher, Dinsmore & Dolan, LPA, 100 7th
 Avenue, Suite 150, Chardon, Ohio 44024 (For Defendant-Appellee).


THOMAS R. WRIGHT, P.J.


        {¶1}      Appellant, Carla R. Hague, appeals the trial court’s judgment overruling her

objections to a magistrate’s decision and ruling that she is not entitled to receive further

spousal support from the Estate of Charles G. Hague. She contests that under the terms

of the underlying divorce decree, her right to spousal support terminates upon Charles’s

death. We affirm.

        {¶2}      In June 2016, Charles was granted a divorce from appellant on the grounds
of incompatibility.     Incorporated into the divorce decree is Charles’s and Carla’s

separation agreement. As to spousal support, the divorce decree states:

       {¶3}    ”IT IS FURTHER ORDERED that [Charles] shall pay directly to the Wife for

an indefinite period, the sum of $1,326.80 per month or until the earliest of the death of

Wife, Wife’s remarriage, or Wife’s cohabitation with an unrelated person as though

married.

       {¶4}    “The said spousal support shall not be modifiable, nor shall the Court retain

jurisdiction thereof * * *.”

       {¶5}    Charles died on January 15, 2018, and a probate action was commenced

in the Ashtabula County Court of Common Pleas. On February 5, 2018, appellee, Mauri

Kosicek, was appointed executor of Charles’s estate.

       {¶6}    When appellant did not receive spousal support following Charles’s death,

she filed a claim against his estate. She argued that Charles’s death does not terminate

the estate’s obligation to pay monthly support because the divorce decree refers to her

death, her remarriage, and her cohabitation as support ending events. Appellee rejected

appellant’s claim against the estate.

       {¶7}    Approximately one month later, appellant filed this separate action against

appellee seeking spousal support from Charles’s estate.       Her complaint also seeks an

order compelling the estate to reserve sufficient funds to continue to pay spousal support

for the remainder of her life or until she remarries or cohabitates with another person.

       {¶8}    After appellee answered the single-claim complaint, the trial court referred

the case to a magistrate. Without holding an evidentiary hearing, the magistrate ordered

both parties to brief the merits. Specifically, the magistrate instructed the parties to




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address the application of R.C. 3105.18(B) as it pertains to the spousal support order in

the divorce decree. That statute provides, in pertinent part:

       {¶9}    “Any award of spousal support made under this section shall terminate upon

the death of either party, unless the order containing the award expressly provides

otherwise.”

       {¶10} Appellant argued that since the order specifically states three contingencies

upon which spousal support terminates, none of which is Charles’s death, the order

“expressly” provides that the payments are to continue after his death. Alternatively, she

asserted that if there is ambiguity regarding their intent, parol evidence must be

considered. Appellant attached to her brief the affidavit of the attorney who represented

her in the divorce action averring that Charles and appellant agreed that spousal support

would survive his death because he was already terminally ill at the time of the divorce.

       {¶11} Appellee maintained that the statute mandates termination of spousal

support absent express language stating to the contrary. (Appellee further argued that

there is no express language to the contrary and that parol evidence could not be

considered.)

       {¶12} The magistrate rejected appellant’s argument that the intent for the spousal

support to continue after Charles’s death could be implied from the other provisions of the

support order.    The magistrate held that under R.C. 3105.18(B), Charles’s support

obligation terminated at his death because there is no express language otherwise. In

addition, the magistrate held that the affidavit of appellant’s divorce attorney could not be

considered under the parol evidence rule.

       {¶13} Appellant objected to the magistrate’s decision, restating her prior




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argument.

         {¶14} After hearing oral arguments on the objections, the trial court overruled the

objections and adopted the magistrate’s decision. The trial court held that parol evidence

could not be considered because the spousal support order is clear and unambiguous,

and does not expressly state that spousal support continues after Charles’s death. The

trial court ordered that the obligation to pay spousal support terminates upon Charles’s

death.

         {¶15} On appeal, appellant assigns three assignments of error:

         {¶16} “[1.] The trial court erred in its adoption of the magistrate’s decision in

appellee’s favor ruling that under ORC 3105.18(B) spousal support terminated upon the

death of [Charles Hague].

         {¶17} “[2.] The trial court erred in its adoption of the magistrate’s decision in

appellee’s favor in excluding attorney’s affidavit which sets forth the true intent of the

parties.

         {¶18} “[3.] The trial court erred to the prejudice of plaintiff-appellant as it lacked

jurisdiction to rule that spousal support terminated upon [Charles Hague’s] death.”

         {¶19} Under her first assignment, appellant challenges the trial court’s application

of R.C. 3105.18(B). She asserts that the “expressly provides otherwise” requirement has

been satisfied because the spousal support order specifically provides for the termination

of such support upon the payee’s death, remarriage, or cohabitation.

         {¶20} Appellant relies upon Forbis v. Forbis, 6th Dist. Wood Nos. WD-04-056 and

WD-04-063, 2005-Ohio-5881. In Forbis, the divorce decree addressing termination of

spousal support is identical to the language in our case; i.e., the Forbis decree states that




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spousal support terminates upon the earliest of the wife’s death, her remarriage, or her

cohabitation with a nonrelative male. The Forbis court held: “Since the [trial] court omitted

[the husband’s] death as a terminating factor, the court clearly expressed its intent for

spousal support to continue after his death.” Id. at ¶74.

       {¶21} Other courts, however, are in conflict with Forbis. In Woodrome v.

Woodrome, 12th Dist. Butler No. CA2000-05-074, 2001 WL 290067 (Mar. 26, 2001), the

court began its analysis with the use of the word “expressly” in the statute. The court then

quoted the following definition: “Expressly means ‘in an express manner; in direct or

unmistakable terms; explicitly, the opposite of impliedly.’     Black’s Law Dictionary (6

Ed.Rev.1990).” Id. at *1.

       {¶22} In Woodrome, the divorce decree provides for indefinite spousal support.

While acknowledging that the language is sufficient to imply that spousal support survives

the payor’s death, it does not expressly provide for it. Accordingly, the spousal support

obligation ended at his death. Id.

       {¶23} In Budd v. Munka, 9th Dist. Summit No. 27051, 2014-Ohio-4185, wife was

ordered to pay spousal support for 120 consecutive months or until husband’s death. On

direct appeal, wife argued that the trial court erred in not including her death as a

termination event. In rejecting this argument, the Budd court stated:

       {¶24} “Wife asserts that the trial court’s omission of death of Wife while including

death of Husband requires the conclusion that the death of Wife would not be a condition

that would terminate spousal support. However, the trial court’s entry does not expressly

provide that spousal support will not terminate if Wife dies. Said another way, the entry

does not state that the Wife’s spousal support obligation will continue after her death.




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While there may [be] an implication that spousal support would not terminate upon Wife’s

death from the trial court’s language, an implication is not equivalent to an express

provision.   Accordingly, because the entry does not expressly provide that spousal

support will not terminate upon Wife’s death, pursuant to R.C. 3105.18(B), spousal

support also terminates upon Wife’s death.” (Emphasis sic). (Citation omitted.) Id. at ¶

22. See also Shaw v. Shaw, 12th Dist. Fayette No. CA96-05-013, 1996 WL 551423, *3

(Sept. 30, 1996).

       {¶25} Given the legislature’s use of the word “expressly” in R.C 3105.18(B), Forbis

is unpersuasive; i.e., we reject the holding that the continuation of spousal support after

the payor’s death can be implied from the other terms of the spousal support award.

Consistent with Woodrome, Budd, and Shaw, R.C. 31105.18(B) can only be satisfied

when the terms of the award expressly state that the payment is to extend beyond payor’s

death. In the absence of express language, the duty to pay spousal support ends when

the payor dies.

       {¶26} Here, the spousal support award does not expressly provide that Charles’s

obligation continues after his death. Appellant’s first assignment lacks merit.

       {¶27} Under her next assignment, appellant claims the trial court erred in failing

to consider her attorney’s affidavit.

       {¶28} “The parol evidence rule states: ‘absent fraud, mistake, or other invalidating

cause, the parties’ final written integration of their agreement may not be varied,

contradicted or supplemented by evidence of prior or contemporaneous oral agreements,

or prior written agreements.’ Galmish v. Cicchini, 90 Ohio St.3d 22, 26, 734 N.E.2d 782,

2000-Ohio-7, quoting 22 Williston Contracts, (4th Ed.1999), 569-570, Section 33:4.”




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Euclid Asphalt Paving Co., Inc. v. Mount Zion Fellowship Church, 11th Dist. Lake No.

2004-L-175, 2005-Ohio-7049, ¶ 16. Therefore, when the terms of an agreement are clear

and unambiguous, parol evidence cannot be considered in construing the terms. Currier

v. Penn-Ohio Logistics, 187 Ohio App.3d 32, 2010-Ohio-198, 931 N.E.2d 129, ¶ 74 (11th

Dist.).

          {¶29} On the other hand, “[w]here a term is ambiguous, parol evidence is

admissible to interpret, but not to contradict, the express language of the contract. Ohio

Historical Soc. v. Gen. Maintenance & Eng. Co. (1989), 65 Ohio App.3d 139, 146, 583

N.E.2d 340 (citations omitted). ‘[I]f such an ambiguity is alleged, it must arise from the

language of the contract itself and, therefore, courts will not admit parol evidence to

construe an ambiguity forced into the contract to strain the apparent meaning of the

language.’ Fireman’s Fund Ins. Co. v. Mitchell-Peterson, Inc. (1989), 63 Ohio Ap.3d 319,

328, 578 N.E. 2d 851, citing Cincinnati v. Gas Light & Coke Co. (1895), 53 Ohio St. 278,

286-287, 41 N.E. 239 * * *.” Sherock v. Ohio Municipal League Joint Self-Ins. Pool, 11th

Dist. Trumbull No. 2003-T-0022, 2004-Ohio-1515, ¶ 16.

          {¶30} Here, the divorce decree lacks ambiguity. By operation of law, spousal

support terminates upon the death of the payor unless the order expressly states

otherwise. R.C. 3105.18(B). The trial court did not err in not considering parol evidence.

The second assignment is also without merit.

          {¶31} Under her final assignment, appellant maintains that by concluding that the

spousal support obligation ended when Charles died, the trial court amended the support

award as set forth in the divorce decree. She further maintains that since there was no

reservation of jurisdiction over spousal support, the trial court exceeded the scope of its




                                              7
jurisdiction.

       {¶32} As stated however, the trial court correctly applied R.C. 3105.18(B) and

enforced the spousal support provision. It did not amend spousal support or exceed its

scope. The third assignment is not well taken.

       {¶33} The judgment of the Ashtabula County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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