Opinion
No. 33682
Decided October 27, 1954.
Divorce and alimony — Alimony award not support order for child, when — Decree reciting existence of agreement between parties — Reviewing court to assume a purpose for such recitation — Conformity with agreement — Alimony decree based on agreement of parties — Not subject to modification after term, when.
1. In a divorce action in which the plaintiff wife asks for alimony and not for support for a minor child with the result that she is awarded a decree which includes a weekly allowance designated as alimony but no order for support of the child, such award is for alimony for the wife and is not an order for the support of the child.
2. When in its decree the trial court recites the existence of an agreement between the parties and then proceeds to itemize various allowances, a reviewing court is not permitted to assume that the trial court had no purpose in mentioning such agreement or that such allowances were not in conformity with such agreement.
3. Such alimony decree is not subject to modification at a subsequent term of court. ( Law v. Law, 64 Ohio St. 369, and Newman v. Newman, 161 Ohio St. 247, approved and followed.)
APPEAL from the Court of Appeals for Belmont County.
In the year 1943 in the Court of Common Pleas, the plaintiff sued her husband, the defendant, for a divorce, alimony and the custody of their minor child.
The court awarded the plaintiff a decree for (1) a divorce on the ground of adultery, (2) alimony in the sum of $10 per week together with a small amount of property, and (3) custody of the child.
Nine years later in 1952, the defendant husband filed a motion to modify that part of the decree providing for the alimony of $10 per week, claiming that the alimony award was for the support of the minor child until she reached the age of 18 years, that that age had been attained, and that the alimony order should therefore be terminated.
The trial court held that the allowance of $10 per week was alimony for the plaintiff wife and not support for the child, that the allowance was the result of a parol agreement between the parties, and that hence the court was without jurisdiction to modify it.
On an appeal to the Court of Appeals on questions of law, the judgment of the trial court was reversed on the ground that the trial court did have jurisdiction because the decree did not specifically recite the approval of an agreement between the parties.
The cause is in this court for a review by reason of the allowance of the plaintiff wife's motion to certify the record.
Messrs. Kinder, Kinder Kinder, for appellant.
Mr. Austin C. Furbee, for appellee.
It is undisputed that, if the award of $10 per week is alimony and the result of an agreement — written or parol — between the parties, the trial court is without jurisdiction to modify it, as held by this court in the cases of Law v. Law, 64 Ohio St. 369, 60 N.E. 560, and Newman v. Newman, 161 Ohio St. 247, 118 N.E.2d 649.
In the Law case the syllabus reads as follows:
"A divorce being decreed for the aggression of the husband, and alimony being adjudged to the wife in accordance with an agreement of the parties, the terms of the decree as to alimony are not, if unaffected by fraud or mistake, subject to modification upon a petition filed by the former husband after the term at which the original decree was made."
The syllabus in the Newman case is:
"An alimony decree based on an agreement between the parties is not subject to modification by a court after term in the absence of mistake, misrepresentation or fraud and in the absence of a reservation of jurisdiction with reference thereto. ( Law v. Law, 64 Ohio St. 369, approved and followed.)"
In the instant case is the award an order for the support of the child or is it alimony for the wife?
A study of the record leaves no doubt about the nature of the award. In the first place the prayer of the plaintiff's petition contains no request for support for the child but the plaintiff does ask for alimony. This certainly constituted ample notice to the defendant that the plaintiff's request was for alimony for herself and not for support for the child. Secondly and of controlling importance, in the trial court's journal entry the subject of alimony is mentioned twice and there is no hint of support for the child. Nor is there a reservation of jurisdiction as to the item of alimony. The court's journal imports verity, and if it contains an inaccuracy, that court is the place to have the correction made.
Was the alimony award made as a result of an agreement between the parties?
Again the answer is found in the journal of the trial court. In the original decree appears the recital, "And the court having heard said cause on plaintiff's petition for alimony and it having been represented to the court that an agreement respecting the same has been made by the plaintiff and the defendant it is ordered that * * *." However, the defendant emphasizes the fact that the decree does not expressly approve the agreement between the parties. He insists that the mention of such an agreement is mere surplusage and hence of no consequence. This court finds itself unable to agree with that conclusion. Of course it would be better if the decree contained an express approval of the agreement. But it is not to be assumed that the trial court had no purpose in mentioning the agreement. At the very threshold of the paragraph relating to alimony and the division of property, the court makes reference to the agreement and then proceeds to itemize that part of the decree. Furthermore, in the opinion and in the journal entry relating to the defendant's motion to modify the decree, the trial court leaves nothing to inference in its conclusive statement that "the decree of divorce approved an agreement for property settlement and alimony made by and between the parties under which situation the court has no jurisdiction to modify the same." This is the language of the same judge who granted the original decree nine years previously.
Under these circumstances a reviewing court is not at liberty to disregard the unambiguous statements of the trial court that it awarded the plaintiff the requested alimony and that the award was based on an agreement between the parties.
The judgment of the Court of Appeals must be reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.