[Cite as Salvato v. Salvato, 2013-Ohio-5268.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


LAWRENCE S. SALVATO,                            :      OPINION

                 Plaintiff-Appellant,           :
                                                       CASE NO. 2013-T-0024
        - vs -                                  :

WINDY SALVATO,                                  :

                 Defendant-Appellee.            :


Appeal from the Trumbull County Court of Common Pleas, Domestic Relations Division,
Case No. 2010 DR 381.

Judgment: Affirmed.


Robert J. Rohrbaugh, II, Robert J. Rohrbaugh, II, L.L.C., 4800 Market Street, Ste. A,
Boardman, OH 44512 (For Plaintiff-Appellant).

Matthew J. Blair, Blair & Latell Co., L.P.A., 724 Youngstown Road, Suite 12, Niles, OH
44446 (For Defendant-Appellee).

Jennifer R. Robbins, 7081 West Boulevard, Youngstown, OH           44512 (Guardian ad
litem).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Lawrence S. Salvato, appeals the judgment of the Trumbull

County Court of Common Pleas, Domestic Relations Division, adopting the magistrate’s

decision increasing the spousal support award in favor of his former wife, appellee,

Windy Salvato. At issue is whether the trial court exceeded its jurisdiction in modifying

the amount of spousal support. For the reasons that follow, we affirm.
      {¶2}   The parties were married in 1998. Two children were born as issue of the

marriage, their daughter, M.S., now age 14; and their son, S.S, now age eight.

      {¶3}   On November 16, 2010, Lawrence filed a complaint for divorce against

Windy. She filed an answer. The parties entered a settlement agreement with respect

to all issues, including property division, custody, child support, and spousal support,

which was set forth in a series of stipulations, which the trial court adopted and

incorporated in an agreed divorce decree, which was signed by the parties and filed on

November 15, 2011.

      {¶4}   Pursuant to the parties’ agreement, the decree provided that Windy would

be designated as legal custodian and residential parent of both children with liberal

visitation rights granted to Lawrence.

      {¶5}   With respect to child support and spousal support, again, by agreement of

the parties, the decree provided:

      {¶6}   12. [Lawrence] is ordered to pay [Windy] per the Ohio Revised

             Code Guidelines [child support], plus spousal support a total of two

             thousand dollars ($2,000.00) per month plus poundage through the

             Child Support Enforcement Agency.

      {¶7}   13. [Windy’s] $2,000.00 monthly payments will be allocated as

             follows: $1,158.80 is for [Lawrence’s] child support obligation. See

             calculation attached and marked as Exhibit “C”. [Lawrence] will pay

             [Windy] spousal support in the amount of $842.20 per month

             commencing on October 1, 2011 and continuing for a period of

             thirty-six (36) months.     [Lawrence’s] spousal support obligation




                                            2
              shall terminate in the event of the death of either party, [Windy’s]

              remarriage or [her] cohabitation with an unrelated male in a

              relationship similar to marriage.

       {¶8}   The spousal support shall not be modifiable unless [Lawrence’s]

              income falls below $57,250.00 or unless [Windy’s] income

              increases above $23,750.00.

       {¶9}   Thereafter, on March 14, 2012, Lawrence filed a motion to reallocate

parental rights and responsibilities, asking that he be designated as legal custodian and

residential parent of the parties’ 14-year-old daughter, M.S., and for a corresponding

reduction of child support.

       {¶10} The magistrate held a hearing on the motion on December 11, 2012.

Lawrence testified that the original award of child support, i.e., $1,158.80, was based on

the parties’ agreement that Windy would be designated as legal custodian and

residential parent of both children. Lawrence testified the parties had recently agreed

that Lawrence would have custody of M.S. He said that, pursuant to this agreement,

M.S. had moved in with him and his fiancé on October 5, 2012. Lawrence testified that

his child support obligation should be modified to reflect this change of custody. He

testified that, before this change, his finances were tight, and that if he was required to

continue the $2,000 monthly payment to Windy, it would create a hardship for him. He

said that, while his income will stay the same, with his daughter now living with him, his

expenses will increase due to items like food, extracurricular activities, and

transportation to and from school. Lawrence is employed at General Motors and his

annual income is $79,000/year.       His fiancé, with whom he resides, also works for




                                             3
General Motors and earns about $79,000/year. In contrast, Windy was a stay-at-home

mom during the 14 years of the parties’ marriage and has no job and no income of her

own with which to support her or her son.

      {¶11} Although Windy agreed that Lawrence should have legal custody of M.S.,

she testified that, pursuant to the parties’ agreement, she was entitled to a $2,000

monthly payment for child and spousal support for three years and requested that it

remain in effect. She testified it was her understanding that she would receive the

combined amount of $2,000 for child support and spousal support for three years,

regardless of the amount of each separate award. She said she understood the amount

of spousal support would be $2,000 less the amount of child support.

      {¶12} On December 19, 2012, the magistrate entered his decision. With respect

to the request for change of custody, by agreement of the parties, the magistrate placed

legal custody of M.S. with Lawrence. The parties stipulated to the revised child support

calculation. With respect to Windy’s support award, the magistrate decided as follows:

      {¶13} On the issue of spousal support and child support[, the] parties

             agreed that [Windy] was to receive $2,000.00 less child support but

             a total of $2,000.00 per month. Now that we have a split custody[,

             Windy is] to still receive $2,000.00 as follows: $723.00 per month

             child support and $1,277.00 per month spousal support. This new

             break down is effective 10/5/2012.

      {¶14} Lawrence timely filed objections to the magistrate’s decision and the

transcript of the hearing before the magistrate. Lawrence argued that the magistrate’s

decision increasing the amount of spousal support violated the plain language of the




                                            4
agreed divorce decree that the amount of spousal support was not modifiable unless

Lawrence’s annual income fell below $57,250 or Windy’s income was more than

$23,750. It was undisputed that neither party satisfied this condition. Based on his

objections, Lawrence requested an order reinstating spousal support at $842/month.

      {¶15} However, on February 14, 2013, the trial court overruled Lawrence’s

objections and adopted the magistrate’s decision. In support, the court found that the

parties had entered a stipulation, which was incorporated into the divorce decree, that

spousal support would be paid at the rate of the difference between $2,000 and the

amount of the child support award, for a total of $2,000, excluding poundage, for 36

months.

      {¶16} Lawrence appeals the trial court’s judgment, asserting the following for his

sole assignment of error:

      {¶17} “Trial court abused its discretion in modifying appellant’s previous order of

spousal support.”

      {¶18} While Lawrence’s assignment of error alleges the trial court abused its

discretion in modifying spousal support, he does not present any argument in support of

this assigned error. Instead, he asserts a jurisdictional argument.

      {¶19} Lawrence argues that, because the divorce decree provided that spousal

support would only be modifiable if Lawrence’s income was less than $57,250 or

Wendy’s income was more than $23,750 and neither party met this condition, the court

exceeded its jurisdiction under R.C. 3105.18 in modifying spousal support. Thus, the

only issue Lawrence raises on appeal is whether the trial court had jurisdiction to modify

the amount of spousal support as set forth in the divorce decree.




                                            5
       {¶20} In contrast, Wendy argues that, in modifying the amount of spousal

support, the court did not exceed its continuing jurisdiction.

       {¶21} R.C. 3105.18(F)(2) addresses the trial court’s continuing jurisdiction to

modify an award of spousal support. That section provides:

       {¶22} In determining whether to modify an existing order for spousal

              support, the court shall consider any purpose expressed in the

              initial order or award and enforce any voluntary agreement of the

              parties. Absent an agreement of the parties, the court shall not

              modify the continuing jurisdiction of the court as contained in the

              original decree. (Emphasis added.)

       {¶23} This court has held that issues regarding the jurisdiction of the domestic

relations court are reviewed de novo and, therefore, without deference to the trial court’s

determination. Kopczak v. Kopczak, 11th Dist. Ashtabula No. 2011-A-0056, 2012-Ohio-

3014, ¶14.

       {¶24} Here, the agreed divorce decree provided that Windy’s combined support

award was $2,000/month for three years and that this award was the sum of child

support and spousal support. Thus, Windy was to receive $2,000/month, regardless of

the amount of child support and spousal support. The apparent purpose of this award

was to equalize the parties’ positions in light of the length of the marriage (14 years) and

the great disparity between the parties’ employment and incomes. In modifying the

amount of spousal support, the trial court followed the parties’ agreement that the

combined amount of the support award would be $2,000/month.




                                             6
      {¶25}    The parties’ stipulations incorporated into the divorce decree confirm this

was the parties’ agreement. They provide in pertinent part:

      {¶26} MR. ROSSI [Windy’s attorney]:

      {¶27} Commencing October 1st, 2011, [Lawrence] is going to pay a

              combined child support/spousal support obligation in the sum of

              $2,000.00.

      {¶28} * * *

      {¶29} The parties agree spousal support, your honor, is paid at the rate of

              whatever the difference between the child support and the spousal

              support, for a total of [$]2,000, excluding poundage, for a period of

              thirty-six months.

      {¶30} It terminates upon: The death of either party; the cohabitation of

              [Windy] in a relationship with a third party; the remarriage of

              [Windy].

      {¶31} It is not * * * terminated or modifiable upon:

      {¶32} A change in the financial circumstances of either party, unless

              [Lawrence’s] income goes * * * to $57,250.00 or below, then, it can

              become * * * modifiable by the Court.

      {¶33} Or if [Windy] goes * * * to [$]23,750, or more than that, then, it

              becomes subject to modification * * * .

      {¶34} THE COURT:         Is that acceptable, Attorney Nosich [Lawrence’s

              attorney]?




                                            7
       {¶35} MR. NOSICH:        That’s acceptable, your Honor.      That was the

              Agreement.

       {¶36} Lawrence argues that, despite the provision in the decree that the $2,000

combined support order would remain in effect for three years, the decree also

contained a provision that spousal support was not modifiable unless Lawrence’s

income fell below $57,250 or Windy’s income was more than $23,750. He argues that,

since neither party’s income fell beyond his or her income threshold, the court did not

have jurisdiction to modify spousal support.

       {¶37} Thus, the issue before the trial court was which of these two competing

provisions was intended by the parties to prevail for purposes of determining the court’s

jurisdiction to modify spousal support.

       {¶38} An agreed divorce decree, like a separation agreement, is an agreement

of the parties that is made an order of the court. Zimmer v. Zimmer, 10th Dist. Franklin

No. 00AP-383, 2001 Ohio App. LEXIS 713, *5 (Feb. 27, 2001).

       {¶39} Like other contracts, an agreement incorporated in a divorce decree can

only be interpreted if the provisions are ambiguous or uncertain. Goulding v. Goulding,

11th Dist. Trumbull No. 2007-T-0011, 2007-Ohio-6927, ¶37.          Contract language is

ambiguous if the contract language is susceptible to two or more conflicting, yet

reasonable, interpretations. Covington v. Lucia, 151 Ohio App.3d 409, 2003-Ohio-346,

¶18 (10th Dist.), citing Potti v. Duramed Pharmaceuticals, Inc., 938 F.2d 641, 647 (6th

Cir.1991). Contracts are to be interpreted to carry out the intent of the parties, as that

intent is evidenced by the contractual language. Aultman Hosp. Assn. v. Community

Mut. Ins. Co., 46 Ohio St.3d 51, 53 (1989). The determination of whether provisions in a




                                               8
contract are ambiguous is a legal issue that we review de novo. Euclid Asphalt Paving

Co. v. Pricom Asphalt Sealcoating, Inc., 11th Dist. Lake No. 2004-L-175, 2005-Ohio-

7049, ¶17.

      {¶40} However, if the contract language is capable of two reasonable but

conflicting interpretations, there is an issue of fact as to the parties’ intent.   Inland

Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc., 15 Ohio St.3d 321, 322

(1984). When addressing conflicting provisions in a contract, the court must examine

parol or extrinsic evidence to determine the parties’ intent.     Euclid Asphalt Paving,

supra, at ¶16. Such extrinsic evidence may include the circumstances surrounding the

parties at the time the contract was made and the objectives the parties intended to

accomplish by entering into the contract. Covington, supra. The determination of the

parties’ intentions is a factual inquiry and, thus, we must presume that the trial court’s

interpretation of the agreement via the parties’ intentions is correct. Euclid Asphalt

Paving, supra, at ¶18. Thus, if the evidence supports more than one interpretation, we

shall give deference to the lower court’s credibility determinations. Id. “Accordingly,

where a contract is ambiguous, we will not overturn the trial court’s interpretation absent

a showing of an abuse of discretion.” Id. This court has stated that the term “abuse of

discretion” is one of art, connoting judgment exercised by a court, which does not

comport with reason or the record. Gaul v. Gaul, 11th Dist. Ashtabula No. 2009-A-

0011, 2010-Ohio-2156, ¶24.

      {¶41} In addressing these competing provisions, the trial court essentially found

they were in conflict, i.e., ambiguous.      While one provision entitles Windy to a

$2,000/month support payment, another provision allows modification of the spousal




                                            9
support only if either party’s income fell outside his or her income threshold. While the

$2,000 provision entitles Windy to this amount under any circumstances, thus requiring

modification of one support award if the other is modified, the income-threshold

provision would prevent the spousal support award to be modified in the circumstances

presented here. Applying the de novo standard of review to this determination, we hold

the trial court did not err in finding these provisions are ambiguous.

       {¶42} Next, with respect to the factual issue of the parties’ intent, the court was

entitled to consider Windy’s testimony that she understood she would receive

$2,000/month for three years, regardless of the amount of child support. During her

testimony, the following colloquy took place between her and the magistrate:

        {¶43} THE COURT: So if I understand your answer, at the time of your

              Divorce you believed that you were going to get $2,000.00 a month

              for thirty-six months; it didn’t matter which was which - - child

              support or spousal support - - but it was your understanding, at

              least, that you would get a total of $2,000.00 a month?

       {¶44} THE WITNESS: Yes.

       {¶45} In light of the foregoing evidence, the court found:        “On the issue of

spousal support and child support parties agreed that [Windy] was to receive $2,000.00

less child support but a total of $2,000.00 per month.” The court thus found the parties

intended that the provision in the decree that Windy would receive $2,000/month

prevailed over the provision that the amount of spousal support was only modifiable if

either party’s income fell beyond his or her income threshold. Since the record contains




                                            10
parol evidence supporting the court’s finding regarding the parties’ intent, we cannot say

the trial court abused its discretion.

       {¶46} Because the divorce decree authorized the trial court to modify the

spousal support award in order to maintain the combined $2,000 award, this provision

vested the trial court with jurisdiction to modify spousal support.

       {¶47} For the reasons stated in this Opinion, it is the judgment and order of this

court that the judgment of the Trumbull County Court of Common Pleas, Domestic

Relations Division, is affirmed.



DIANE V. GRENDELL, J., concurs,

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

                                _______________________


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


       {¶48} I respectfully dissent.

       {¶49} The majority finds no error in the trial court’s determination that the $2,000

combined order (for spousal support and child support) should remain in effect for three

years, pursuant to the parties’ agreement and stipulations, even though the record

reflects a clear change in circumstances in child support. Because I believe that a

modification in child support is mandated under the child support guidelines and R.C.

3109.05, I disagree with the majority’s position.

       {¶50} Parties cannot stipulate to jurisdiction. Durgans v. Durgans, 11th Dist.

Portage No. 2000-P-0026, 2001 Ohio App. LEXIS 492, *10, fn. 6 (Feb. 9, 2001); King v.




                                             11
King, 4th Dist. Adams No. 01CA719, 2002 Ohio App. LEXIS 1100, *11, fn. 7 (Mar. 8,

2002). “While trial courts may not have continuing jurisdiction to ‘modify’ an award or

agreement for the payment of 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.), quoting In re

Kirchgessner, 7th Dist. Columbiana No. 1176, 1978 Ohio App. LEXIS 9355 (Oct. 31,

1978).

         {¶51} R.C. 3105.18 is the statutory provision governing the award and

modification of spousal support. A court may modify an award of spousal support if the

circumstances of either party have changed and if the divorce decree contains a

provision reserving the court’s jurisdiction to modify. R.C. 3105.18(E). If a court finds a

change in circumstances, it must reexamine the existing award to determine if it is still

appropriate and reasonable.      Anspach v. Anspach, 11th Dist. Geauga No. 2007-G-

2762, 2007-Ohio-5207, ¶14.

         {¶52} On the other hand, in considering an award and modification of child

support, a trial court must follow the mandates of R.C. 3109.05. “Child support, unlike

spousal support, is specific to the child support guidelines and worksheet * * *.” Trickey

v. Trickey, 6th Dist. Lucas No. L-09-1307, 2011-Ohio-140, ¶16.          Children’s issues,

including child support, are always modifiable. See Boldt v. Boldt, 9th Dist. Summit No.

18736, 1998 Ohio App. LEXIS 5854, *7 (Dec. 9, 1998).

         {¶53} In this case, the record reflects that the $1,158.80 original child support

portion of the $2,000 combined order (for spousal support and child support) was based

on the parties’ previous agreement that Windy would be designated as legal custodian




                                            12
and residential parent of both children. However, the parties later agreed that Lawrence

would have legal custody of M.S., who moved in with him and his fiancé on October 5,

2012.

        {¶54} Lawrence testified at the December 11, 2012 hearing before the

magistrate that before this change in custody, his finances were “tight.” He explained

that if he were required to continue the combined $2,000 monthly payment to Windy, it

would create a hardship for him. Lawrence stated that with his daughter now living with

him, his expenses have increased due to items like food, extracurricular activities, and

transportation to and from school.

        {¶55} Nevertheless, the trial court kept the combined award at $2,000, (i.e., the

stipulated amount before the change in custody,) and the majority here finds no error.

However, I believe that Lawrence’s child support obligation of $1,158.80 (which was for

both children) should have been modified downward to reflect the change in custody.

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

make a decision upon the child support guidelines. Based on the foregoing, I believe

this matter should be reversed and remanded.

        {¶56} Accordingly, I respectfully dissent.




                                             13
