[Cite as Haverdick v. Haverdick, 2013-Ohio-4303.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


MADELINE R. HAVERDICK,                              :   OPINION

                 Plaintiff-Appellant,               :
                                                        CASE NO. 2012-T-0085
        - vs -                                      :

FRANK HAVERDICK, JR.,                               :

                 Defendant-Appellee.                :


Appeal from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 2004 DR 417.

Judgment: Affirmed.


Michael A. Scala, 244 Seneca Avenue, N.E., P.O. Box 4306, Warren, OH 44482 (For
Plaintiff-Appellant).

Gary R. Rich, 342 Mahoning Avenue, N.W., P.O. Box 4010, Warren, OH 44482-4010
(For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Madeline R. Haverdick, n.k.a. Madeline Prezioso, appeals from

the judgment of the Trumbull County Court of Common Pleas, Domestic Relations

Division, denying her motion to reinstate spousal support. For the reasons discussed

below, we affirm the trial court’s judgment.

        {¶2}     In September 2004, appellant filed a complaint for legal separation from

appellee, Frank Haverdick. The case was initially settled by way of stipulation; the
matter was reopened, however, after the trial court granted a motion for new trial filed

by appellee. The parties eventually agreed that appellee would take possession of the

marital residence. The parties further stipulated to a division of marital property and

household items.      They also stipulated to a spousal support arrangement. The

stipulations provided that appellee would pay appellant $1,000 per month commencing

on February 1, 2009 and continuing until appellee retires.        The stipulations further

provided that spousal support would terminate upon the death of either party,

appellant’s remarriage, or upon appellant’s cohabitation in a like-marital state. And, the

court reserved jurisdiction to modify the support agreement if appellant elected to

immediately commence drawing on her marital share of appellee’s pension.               The

numerous stipulations were incorporated into the final divorce decree that was entered

on January 21, 2009.

       {¶3}   The record indicates that appellant retired and ceased paying spousal

support. Appellant filed a motion to reinstate spousal support, arguing the trial court, via

the parties’ divorce decree, retained jurisdiction to modify or revisit the issue of spousal

support. Appellee filed a memorandum in opposition to the motion, asserting the parties

stipulated that spousal support would cease upon appellee’s retirement.           And, the

judgment on divorce, which incorporated those stipulations, reserved jurisdiction over

spousal support only if appellant chose to begin drawing on appellee’s pension prior to

his retirement, a situation which did not occur.

       {¶4}   On September 20, 2012, the trial court issued its judgment denying

appellant’s motion and this appeal followed. Appellant assigns the following error for

our review:




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         {¶5}   “The trial court erred, to the detriment of appellant, by denying appellee

[sic] spousal support.”

         {¶6}   Appellant asserts the divorce decree and the stipulations conflict and

therefore additional testimony was necessary to establish the parties’ intent. We do not

agree.

         {¶7}   The divorce decree expressly stated the court approved the parties’

stipulations and incorporated them into the judgment.             Both the decree and the

stipulations addressed the issue of spousal support. The decree provides:

         {¶8}   [Appellee] shall pay [appellant], as for spousal support the amount

         of $1,000.00 per month, plus processing fee, subject to a change in

         circumstances of the parties, such as if [appellant] remarries, death of one

         party; [appellant’s] cohabitation in a like marital state. Further, in the event

         [appellant] can immediately begin to draw her marital share of [appellee’s]

         pension, the Court will retain jurisdiction and review said support.

         {¶9}   The stipulations echoed these points but further added that the $1,000-

per-month obligation would “commence February 1st of 2009 and continue until such

time as [appellee] retires.”

         {¶10} Read together, the decree and the stipulations are redundant with the

exception of when the support would commence and when, irrespective of the other

conditions, it would, with certainty, terminate, i.e., upon appellee’s retirement. Simply

because the decree did not explicitly state retirement as the point at which the support

order would terminate does not imply the parties did not intend this result. To the




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contrary, as there was no objection to this point at the hearing on stipulations, the

retirement-termination provision unequivocally reflects the parties’ intent.

        {¶11} Stipulations are voluntary agreements between opposing parties, and thus

are subject to principles of contract law and a de novo standard of review. State v.

Blaine, 4th Dist. Highland No. 03CA9, 2004-Ohio-1241, ¶11-12, citing Black’s Law

Dictionary (7th Ed. 1999) 1427. Stipulation agreements, like contracts, should be

interpreted to carry out the intent of the parties as evidenced by the contract’s language.

See Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, ¶9.

        {¶12} The agreement relating to the commencement date and the specific

termination date was part of the stipulations and incorporated into the court’s final

judgment. Because the court fully incorporated the stipulations into its decree, it did not

need to expressly address this point in its decree.                    We therefore hold the parties

intended the support order to terminate upon appellee’s retirement.1

        {¶13} Although appellant does not argue the point on appeal, it is also worth

pointing out that the court reserved jurisdiction to review the issue of support only in the

event appellant commenced an immediate draw on appellee’s pension. Appellant does

not assert this appeal is based upon her accepting an early draw on appellee’s pension.

Indeed, the record indicates appellant declined to exercise this option. Given these



1. The dissenting opinion observes that jurisdiction over domestic relations matters is determined by
statute and thus parties cannot stipulate to a court’s subject matter jurisdiction. With respect to the issue
of spousal support, however, R.C. 3105.18(E)(1) provides that a court does not have jurisdiction to modify
spousal support unless, 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.” In this case, neither the decree, nor the
agreement relating to property division and spousal support, i.e., the stipulations, include an unconditional
reservation of jurisdiction to modify the support order. The court reserved jurisdiction over the issue of
support only if appellant began to immediately draw on appellee’s retirement benefits; a circumstance that
did not occur. Statutorily, therefore, the court could not unconditionally revisit the issue of spousal support
as appellant asserts.


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facts, the conditional jurisdictional reservation was rendered inoperative once appellee

retired. A review of the decree and the stipulations demonstrate that the court did not

expressly reserve jurisdiction to review the issue unconditionally.           And, neither the

decree nor the stipulations suggest the parties intended the court to possess continuing

jurisdiction over the issue after appellee’s retirement. We therefore hold, as a matter of

law, appellee’s spousal support obligation terminated upon his retirement and the trial

court is without jurisdiction to address, let alone reinstate, its earlier order.

       {¶14} Appellant’s assignment of error lacks merit.

       {¶15} For the reasons discussed in this opinion, the judgment of the Trumbull

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



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                                 ______________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


       {¶16} I respectfully dissent.

       {¶17} The majority points out that the divorce decree and the stipulations

demonstrate that the trial court did not expressly reserve jurisdiction to review the

spousal support issue “unconditionally.” The majority also contends that neither the

decree nor the stipulations suggest the parties intended the trial court to possess

continuing jurisdiction over the issue after appellee’s retirement. Thus, the majority

concludes that appellee’s spousal support obligation terminated upon his retirement and




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the trial court is without jurisdiction to address, let alone reinstate, its earlier order. I

disagree.

       {¶18} Parties cannot stipulate to jurisdiction. Durgans v. Durgans, 11th Dist. No.

2000-P-0026, 2001 Ohio App. LEXIS 492, *10, fn. 6 (Feb. 9, 2001); King v. King, 4th

Dist. No. 01CA719, 2002 Ohio App. LEXIS 1100, *11, fn. 7 (Mar. 8, 2002). With respect

to spousal support, “‘the court entering such judgment has continuing jurisdiction to

enforce or construe the rights of the parties.’” McLaughlin v. McLaughlin, 178 Ohio

App.3d 419, 2008-Ohio-5284, ¶13 (4th Dist.2008), quoting In re Kirchgessner, 7th Dist.

No. 1176, 1978 Ohio App. LEXIS 9355 (Oct. 31, 1978).

       {¶19} In this case, regarding appellee’s retirement, the stipulations, when read in

their entirety, allow for a spousal support examination. In addition, the trial court, via the

parties’ divorce decree, retained jurisdiction to revisit the issue of spousal support.

Thus, the language of both documents allows the court to examine the spousal support

issue after appellee’s retirement.      Jurisdiction of the domestic relations court is

determined by statute and cannot be modified or altered by the parties by contract or

agreement after the court’s retention of jurisdiction in the original decree. Therefore, in

this writer’s humble analysis, the court is required to hold a hearing and make a

decision upon the factors outlined in R.C. 3105.18. Based upon the foregoing, the trial

court erred in denying appellant due process through its denial of a hearing on her

request to reinstate spousal support.

       {¶20} I believe this matter should be remanded to the trial court for a hearing on

the statutory requirements for modification of spousal support and the merits of

appellant’s request to reinstate.




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{¶21} Thus, I dissent.




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