[Cite as Koehler v. Koehler, 2013-Ohio-336.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




FREDA KOEHLER a.k.a. Rush,                       :

        Plaintiff-Appellant,                     :     CASE NOS. CA2012-06-058
                                                                 CA2012-07-059
                                                 :
   - vs -                                                      OPINION
                                                 :              2/4/2013

FRANCIS A. KOEHLER,                              :

        Defendant-Appellee.                      :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                        DOMESTIC RELATIONS DIVISION
                       Case Nos. 10DR33620 and 11DR35210



Jeffrey E. Richards, 147 Miami Street, P.O. Box 536, Waynesville, Ohio 45068, for plaintiff-
appellant

Christopher J. Cornyn, P.O. Box 332, Brookville, Ohio 45309, for defendant-appellee



        HENDRICKSON, P.J.

        {¶ 1} Plaintiff-appellant, Freda Koehler n.k.a. Rush, appeals from a judgment entry

and final decree of divorce entered by the Warren County Court of Common Pleas, Domestic

Relations Division, which found that it did not have jurisdiction to modify a pre-existing

spousal support order that had been set forth in a decree of legal separation. For the

reasons discussed below, we reverse the trial court's decision and remand this matter for

further proceedings.
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       {¶ 2} Appellant and defendant-appellee, Francis Koehler, were married in 1990. In

April 2010, appellant filed a complaint for divorce. Thereafter, appellee filed a counterclaim

for divorce. A final divorce hearing on the matter occurred on December 17, 2010. However,

on February 7, 2011, the parties filed a motion to convert the action to a legal separation

action. That same day, the trial court entered its Judgment Entry and Final Decree of Legal

Separation, which was signed by the trial court judge, appellant, appellee, and the parties'

respective counsel. See Koehler v. Koehler, Warren C.P. No. 10DR33620 (Feb. 7, 2011).

       {¶ 3} Pursuant to the decree of legal separation, "[t]his Final Judgment Entry and

Decree of Legal Separation constitutes a full and complete settlement of all rights and

responsibilities between the parties and there are no covenants, conditions, representations

or agreements, oral or written, of any nature whatsoever, other than those herein contained."

The terms of the decree specified that appellee was to provide spousal support to appellant

as follows:

              Beginning December 1, 2010, [appellee] shall pay [appellant's]
              car loan in regular monthly payments in the amount of two-
              hundred and ten dollars ($210.00) paid directly to River Valley or
              other such financial institution who holds the loan for
              [appellant's] car. Such monthly payments shall continue until the
              balance of the car loan is paid off in full. This monthly payment
              by [appellee] shall be in consideration of spousal support to
              [appellant]. No other spousal support payments shall be made
              by and between either spouse. The Court shall not have
              continuing jurisdiction of the amount or the duration of spousal
              support.

Neither party appealed from the trial court's February 7, 2011 Judgment Entry and Final

Decree of Separation.

       {¶ 4} On December 23, 2011, appellant filed a complaint for divorce and sought

temporary and permanent orders for spousal support. Appellee counterclaimed for divorce,

and in his answer to appellant's complaint, denied that the trial court had jurisdiction to

modify the spousal support order set forth in Case No. 10DR33620. Both appellant and
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appellee submitted briefs to the trial court on the issue of whether the court had jurisdiction to

modify spousal support. In an entry dated March 13, 2012, the trial court held the "spousal

support order [in the decree of legal separation] was clear that the Court shall not have

continuing jurisdiction of the amount or duration of spousal support." The Court concluded

that, "as a matter of law, * * * it has no jurisdiction to modify spousal support whether there

are changed circumstances of a party or not."

       {¶ 5} A final hearing on appellant's complaint for divorce and appellee's counterclaim

for divorce was held on June 21, 2012. Thereafter, the trial court filed its Judgment Entry

and Final Decree of Divorce. In its entry, the trial court expressly incorporated its March 13,

2012 holding regarding spousal support.

       {¶ 6} Appellant appeals the trial court's decision regarding spousal support, raising as

her sole assignment of error the following:

       {¶ 7} THE TRIAL COURT ERRED IN FINDING THAT IT HAD NO JURISDICTION

TO MODIFY SPOUSAL SUPPORT.

       {¶ 8} In her sole assignment of error, appellant argues the trial court erred in refusing

to consider a modification of the spousal support order set forth in the decree of separation.

Appellant contends that "[t]he terms of the legal separation were court ordered and not the

result of a settlement agreement or a contract," and, therefore, R.C. 3105.18(D) provides the

trial court with continuing jurisdiction to modify the support order. Appellee argues, however,

that the terms set forth in the decree of separation "were agreed to between the parties in a

non-contested legal separation proceeding and incorporated into a final decree."

       {¶ 9} Whether the trial court has jurisdiction to consider a modification of spousal

support presents a question of law. Questions of law are reviewed by appellate courts de

novo. Turner v. Langenbrunner, 12th Dist. No. CA2003-10-099, 2004-Ohio-2814, ¶ 12.



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       {¶ 10} R.C. 3105.18(D) states that "[i]n an action brought solely for an order for legal

separation under section 3105.17 of the Revised Code, any continuing order for periodic

payments of money entered pursuant to this section is subject to further order of the court

upon changed circumstances of either party."         (Emphasis added.)       Pursuant to R.C.

3105.18(D), the trial court cannot, on its own accord, relinquish jurisdiction to modify a

spousal support order. Compare R.C. 3105.18(E) (which provides that in a divorce or

dissolution of marriage, the trial court does not have jurisdiction to modify the amount or

terms of spousal support unless the trial court specifically reserves jurisdiction to so modify

the ordered spousal support). Where a legal separation is granted, the trial court retains

jurisdiction to modify spousal support. See Dunlap v. Dunlap, 9th Dist. No. 23860, 2008-

Ohio-3201, ¶ 26 (finding that the trial court's statement in the decree of legal separation that

"[s]pousal support shall not remain under the jurisdiction of this Court" did not relinquish the

court's jurisdiction to modify spousal support); Condit v. Condit, 190 Ohio App.3d 634, 2010-

Ohio-5202 (1st Dist.). The parties, however, may contractually waive the right to seek

modification of spousal support. Condit at ¶ 13.

       {¶ 11} In Condit, a husband and wife entered into a separation agreement that was

later incorporated into a decree of legal separation. Id. at ¶ 2. The separation agreement

provided that the husband was to pay the wife $1,500 per month in spousal support for seven

years. Id. at ¶ 3. The agreement also stated that "such spousal support shall not be subject

to further review of the Court." Id. The wife later filed a complaint for divorce, and the

husband asked the court to modify the spousal support order. Id. at ¶ 4. The trial court

refused to consider modifying the spousal support order, holding that the issue of spousal

support had been addressed in the decree of legal separation and the court did not retain

jurisdiction. Id. at ¶ 5. On appeal, the First District determined that the trial court had

jurisdiction to modify spousal support pursuant to R.C. 3105.18(D).           Id. at ¶ 7-9.   It
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determined, however, that the parties "could waive the right to seek modification of spousal

support as a contractual matter between themselves." Id. at ¶ 13. In determining whether

the parties intended to waive this right, the First District held that the court should look to the

separation agreement adopted by the decree of dissolution and apply the same rules of

construction that govern other contracts. Id. at ¶ 11. The court determined that the plain

language of the parties' separation agreement demonstrated the "parties' intent * * * that

spousal support would not be modifiable." Id. at ¶ 13. Accordingly, the First District

determined that the trial court did not err in denying the husband's motion to modify spousal

support.

       {¶ 12} The facts in the present case differ significantly from the facts in Condit. Here,

there is no separation agreement attached or incorporated into the trial court's decree of legal

separation. In fact, the decree of legal separation specifically stated that "[t]his Final

Judgment Entry and Decree of Legal Separation constitutes a full and complete settlement of

all rights and responsibilities between the parties and there are no covenants, conditions,

representations or agreements, oral or written, of any nature whatsoever, other than those

herein contained." (Emphasis added.) Although appellee argues that the terms set forth in

the decree of separation "were agreed to between the parties in a non-contested legal

separation proceeding and incorporated into a final decree," there is nothing in the record to

support his contention. While the decree of legal separation was signed by the trial court

judge, appellant, appellee, and the parties' respective counsel, the decree does not indicate

that the terms set forth in the document were reached by the parties' agreement, does not

reference a separate, on-the-record agreement between the parties, and does not

incorporate a separation agreement executed by the parties. Thus, there is no evidence in

the record that the parties sought to contractually waive the right to seek modification of

spousal support.
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       {¶ 13} Accordingly, we find that pursuant to R.C. 3105.18(D), appellant was entitled to

seek modification of the spousal support order contained within the decree of legal

separation. The trial court erred by refusing to exercise jurisdiction to consider whether

modification of the spousal support order was appropriate.

       {¶ 14} We hereby reverse the trial court's March 13, 2012 entry finding that it did not

have continuing jurisdiction to modify the spousal support order entered in the decree of legal

separation. We further reverse the decree of divorce to the extent it holds that the trial court

did not have jurisdiction to consider a modification of the previously ordered spousal support

award contained in the decree of legal separation.

       {¶ 15} Judgment reversed, and the matter remanded for further proceedings

consistent with this opinion.


       RINGLAND and M. POWELL, JJ., concur.




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