[Cite as Sieverding v. Sieverding, 2012-Ohio-1238.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

                                                      :
Barbara J. Sieverding
     Plaintiff-Appellee                               :   C.A. CASE NO. 24549

vs.                                                   :   T.C. CASE NO. 98-DM-772

                                                      :   (Civil Appeal from
Michael J. Sieverding                                     Common Pleas Court,
     Defendant-Appellant                              :   Domestic Relations Division)

                                       . . . . . . . . .

                                          O P I N I O N

                    Rendered on the 23rd day of March, 2012.

                                       . . . . . . . . .

Anne C. Harvey, Atty. Reg. No. 0054585, 2310 Far Hills Avenue,
Dayton, OH 45419
     Attorney for Plaintiff-Appellee

Joseph W. Stadnicar, Atty. Reg. No. 0046851, 3836 Dayton-Xenia
Road, Beavercreek, OH 45432
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1}     This is an appeal from a final order of the domestic

relations court that modified provisions concerning spousal

support in a separation agreement incorporated into a decree of

dissolution.

        {¶ 2} On September 18, 1998, Michael and Barbara Sieverding
filed their petition for a decree dissolving their marriage of

thirty years.   A separation agreement was submitted in support

of the petition.     The separation agreement provides:

     {¶ 3} “Petitioner-Husband shall pay spousal support to Wife

in the amount of one thousand dollars ($1,000.00) per month

commencing the month that the final decree is filed and continuing

for a period of twelve (12) years or until the death of either

party or Wife’s remarriage whichever may first occur.      The Court

shall retain jurisdiction over the matter of spousal support.”

(Emphasis added.)

     {¶ 4} The domestic relations court granted the parties’

petition for dissolution on December 10, 1998.        The decree of

dissolution expressly incorporates their separation agreement,

including its spousal support provisions.

     {¶ 5} On March 4, 2010, Barbara filed a motion requesting an

increase in both the amount and duration of spousal support Michael

was ordered to pay.    Barbara alleged “a change in the financial

circumstances of the parties, as well as due to the conduct of

the Defendant during the dissolution as to disclosure of retirement

accounts, which has only recently become known to Plaintiff.”

(Dkt. 14).

     {¶ 6} On February 23, 2011, an Agreed Order, signed by Michael

and Barbara and the magistrate, was filed.      The Agreed Order was

approved by the court on that same date.   The Agreed Order provides,

in pertinent part:
[Cite as Sieverding v. Sieverding, 2012-Ohio-1238.]
                 (1) by agreement of the parties, it is hereby

        ordered as follows: the Respondent/Husband (Michael)

        shall pay $9,000.00 to Movant/Wife (Barbara) as and for

        spousal support, payable by March 14, 2011.                            This

        spousal support payment shall be paid directly.

                 (2) The obligation for spousal support shall

        terminate and the court does not retain jurisdiction.

        {¶ 7} On March 25, 2011, Michael filed a notice of appeal from

the February 25 Agreed Order.                         Barbara has not filed a brief as

Appellee.

        ASSIGNMENT OF ERROR

        {¶ 8} “THE TRIAL COURT, EVEN BY AGREEMENT OF THE PARTIES DOES

NOT HAVE THE AUTHORITY TO TERMINATE THE TRIAL COURT’S CONTINUING

JURISDICTION           PREVIOUSLY          INVOKED       PURSUANT   TO   REVISED   CODE   §

3105.18(E).”

        {¶ 9} R.C. 3105.18(E) provides, in pertinent part:

                 If * * * a continuing order for periodic payments

        of money as spousal support is entered in a divorce or

        dissolution of marriage action that is determined on

        or after January 1, 1991, the court that enters the decree

        of divorce or dissolution of marriage does not have

        jurisdiction to modify the amount or terms of the alimony

        or spousal support unless the court determines that the

        circumstances of either party have changed and unless

        one of the following applies:
                                                                   4

          (1) In the case of a divorce, the decree or a

     separation agreement of the parties to the divorce that

     is incorporated into the decree contains a provision

     specifically authorizing the court to modify the amount

     or terms of alimony or spousal support.

          (2) In the case of a dissolution of marriage, the

     separation agreement that is approved by the court and

     incorporated into the decree contains a provision

     specifically authorizing the court to modify the amount

     or terms of alimony or spousal support.

     {¶ 10} Michael relies on our holding in Apt v. Apt, 192 Ohio

App.3d 102, 2011-Ohio-380, 947 N.E.2d 1317.   Apt involved a decree

of divorce in which monthly payments of spousal support was ordered,

“subject to further jurisdiction of the Court.”       Subsequently,

by an agreed order, the court modified the decree to substitute

a lump-sum payment for the periodic payments for which the decree

had provided.   The agreed order also provided: “The continuing

jurisdiction of this court over the spousal support    is vacated.”

     {¶ 11} Several years later, the obligee in Apt filed charges

in contempt concerning the obligor’s failure to maintain a life

insurance policy the obligor had also been ordered to maintain

to secure his support obligation.    The domestic relations court

found that termination of the support obligation and revocation

of any continuing jurisdiction on that matter prohibited the court
                                                                      5

from exercising its jurisdiction to consider the matter of

insurance the obligor had a duty to maintain.

     {¶ 12} On review, we held in Apt that the court’s earlier order

vacating its continuing jurisdiction in the matter of spousal

support was ineffective.     We wrote:

            R.C. 3105.18(E)(2)1 does not operate to allow the

     court   to   create   its   jurisdiction.    That   section

     functions instead to prevent a loss of jurisdiction that

     would otherwise result with journalization of the final

     judgment and decree of divorce.          While the court’s

     stated “reservation” is necessary for that outcome to

     occur, the jurisdiction preserved is the product of R.C.

     3105.18(E)(2), which represents an exercise of the power

     conferred on the General Assembly by Section 4(B),

     Article IV, to determine the jurisdiction of the court

     of common pleas and its     divisions.    Just as it cannot

     create its own jurisdiction, a court cannot “vacate”

     the continuing jurisdiction that R.C. 3105.18(E)(2)

     confers.     Neither can that power be conferred on the

     court by agreement of the parties.

     {¶ 13} In Apt, we wrote that the domestic relations court’s

order vacating an order in a prior decree of divorce authorizing


        1
          The correct reference should have           been   to    R.C.
   3105.18(E)(1), Apt being a divorce case.
                                                                         6

the court to modify the periodic payments of spousal support awarded

in the decree was a “nullity.”      Id., at ¶ 16.      Our rationale was

that the order was necessarily void because it modified the final

decree itself, as opposed to the “nature, amount, and terms of

payment, and duration of spousal support,” R.C. 3105.18(B), ordered

in the decree.

     {¶ 14} We agree that the prohibition against modification of

final orders we discussed in Apt likewise prohibits orders vacating

a provision in a separation agreement incorporated into a decree

of dissolution that authorizes the court to modify an award for

periodic payments of spousal support. Michael contends that the

domestic relations court’s statement in the agreed order that the

court “does not reserve jurisdiction” concerning the lump sum

support its modification ordered could be construed to be such

a prohibited modification.        However, while such an order is a

“nullity,” any such error was harmless.

     {¶ 15} The authorization which the separation agreement confers

permitted the court to modify Michael’s obligation to make periodic

payments of spousal support and substitute a lump sum spousal

support   obligation   instead.      The   practical    effect   of   that

modification was to exclude the possibility of any so-called

reservation of jurisdiction, because R.C. 3105.18(E) applies to

an order for “periodic payments of money as spousal support,” and

therefore does not apply to lump sum awards.        R.C. 3105.18(E)(2)
                                                                  7

could not extend the court’s jurisdiction to modify the lump-sum

award in any event.   The court’s apparent intention to reject any

continuing jurisdiction pursuant to R.C. 3105.18(E)(2) to modify

its lump sum award therefore had no force or effect, and while

it was an error, the error was harmless.

     {¶ 16} The assignment of error is overruled.   The judgment of

the domestic relations court will be affirmed.



FROELICH, J., concurring:

     { 17} The parties were divorced and a final decree of

dissolution was filed in 1998.      That final appealable order

provided that the court shall retain jurisdiction over the matter

of spousal support.    I understand the surface logic of being

permitted to amend an order which itself gives the court continuing

jurisdiction.   However, perhaps excluding Civ.R. 60 relief (which

is not at issue here), neither a court nor the parties ten years

later can change that final appealable order since that would,

almost by definition, retroactively make it something other than

“final.”

     { 18} Therefore, to the extent the 2011 Order purported to

amend the 1998 Order by no longer retaining jurisdiction to modify

spousal support, it was in error; and the court still “retain[s]

jurisdiction over the matter of spousal support.”   But, since that

retained jurisdiction was exercised by permitting the spousal
                                                                   8

support obligation to be satisfied by a lump-sum payment, there

is no further spousal support obligation to which the continuing

jurisdiction applies.   Thus, as the majority concludes, the error

is harmless.



HALL, J., concurring,

     { 19} My colleagues conclude that the Domestic Relations

Court could not truncate its previously reserved continuing

jurisdiction over the issue of spousal support, but that the error

was harmless. I agree with that conclusion, although my reasoning

is somewhat different. I write to insure that we do not create

uncertainty about the enforcement of voluntary agreements between

parties.

     { 20} Both husband and wife desired to reduce future periodic

spousal support to a lump sum. Wife’s expectation was that she

would receive a substantial cash payment. Husband’s expectation

was that he would no longer be subject to the potential of future

spousal support. Their agreement should be enforceable. In my view,

inclusion of the language in their Agreed Order that upon payment

of the lump sum “The obligation for spousal support shall terminate

and the court does not retain jurisdiction” may not be sufficient

to alter the once-reserved continuing jurisdiction of the court,

but it does operate as an irrevocable waiver of the wife’s future

ability to later move the court for future spousal support. Thereby,
                                                               9

the agreement of the parties is enforceable because, even though

the court may still have jurisdiction, wife cannot successfully

approach the court for an increase.

                       . . . . . . . . .

Copies mailed to:


Anne C. Harvey, Esq.
Joseph W. Stadnicar, Esq.
Hon. Denise L. Cross
