Meinke v. Meinke

Handwork, P.J. This case is before the court on an appeal from the Lucas County Court of Common Pleas, Domestic Relations Division. The parties were divorced in 1983. At that time, the trial court awarded sustenance alimony to the appellant, Doris A. Meinke, in the amount of $800 per month for a period of five years, or until her death, remarriage or further order of the court. Mrs. Meinke appealed to this court stating that the award of alimony should have been larger. This court agreed, and in our decision and journal entry, Meinke v. Meinke (July 22, 1983), Lucas App. No. L-83-109, unreported, we modified the alimony award as follows at 3: “* * * [W]e modify the judgment of the trial court and award appellant $1,200.00 per month for five years, or until her death, remarriage or further order of the Domestic Court. Should appellant become gainfully employed at a salary in excess of what she was making at the time of the decree, the trial court may, upon proper motion and evidence, reduce that award.” (Emphasis added.) Two months before the end of the five-year term, appellant filed a motion to modify alimony. She requested an increase in the amount and an extension of the period of alimony past the original five-year limit. This motion was denied by the trial court. The trial court stated that the appellate court’s judgment entry language, “until * * * further order of the Domestic Court,” reserved jurisdiction to modify the alimony award only within the original five-year period, but not beyond that time. Mrs. Meinke appeals from that decision with one assignment of error, which states: “The trial court erred as a matter of law in interpreting the court of appeals’ award for alimony as limiting the trial court’s jurisdiction to modify alimony as to amount and term of years only within the five (5) year period.” The rule governing when an award of sustenance alimony is modifiable is set forth in Ressler v. Ressler (1985), 17 Ohio St. 3d 17, 17 OBR 14, 476 N.E. 2d 1032, syllabus: “A decreeing court does not have continuing jurisdiction to modify a sustenance alimony award that was made for a fixed period of years even though the award is subject to termination in the event of death, remarriage or cohabitation unless the decreeing court expressly reserves jurisdiction to modify.” (Emphasis added.) Appellee Dean L. Meinke argues, and the lower court held, that the reservation of jurisdiction in the instant case, “until * * * further order of the Domestic Court,” expressly reserves jurisdiction to modify the alimony only within the original five-year period. We disagree. Further order of the court means further order of the court. If a trial court wishes to reserve jurisdiction to modify a sustenance alimony award only within the original period of the award, it must expressly state that intention. See, for example, Kenney v. Kenney (Jan. 21, 1988), Huron C.P. No. 47809, unreported, where the court stated: “It is further Ordered, Adjudged and Decreed that specific jurisdiction shall be and hereby is reserved to modify the amount and terms of the awards of rehabilitative alimony provided in this judgment during the *173 respective terms (periods) provided, and no more. R.C. 3105.18(D)(1).” Appellee also relies on this court’s prior decisions in Mattoni v. Mattoni (Feb. 22, 1980), Lucas App. No. L-79-129, unreported (Mattoni I), and Mattoni v. Mattoni (Sept. 30, 1986), Lucas App. No. L-85-285, unreported (Mattoni II), to support his position. In Mattoni I this court modified the trial court’s alimony award and stated: “ ‘At the end of five years from the date of the judgment entry, without the necessity of showing a change in circumstances, the matter of the alimony award shall, on motion of either party, be reconsidered for such modification as the trial court may deem proper at that time.’ ” (Quoted in Mattoni II at 3.) In Mattoni II at 13, we held that the above quote from Mattoni I “constitutes an express reservation of jurisdiction to modify the original five year alimony award granted. Consequently, it was entirely within the jurisdiction of the trial court to order alimony beyond the original five year award.” Mattoni II at 13. In Mattoni II, we did not hold, however, that this was the only language which would reserve such jurisdiction. Appellee further argues that the reservation of jurisdiction in the instant case cannot be interpreted to include the power to modify the alimony award after the five-year term has ended because this court added the sentence, “[s]hould appellant become gainfully employed at a salary in excess of what she was making at the time of the decree, the * * * court may, upon proper motion and evidence, reduce that award,” after the words, “until * * * further order of the Domestic Court.” Appellant contends that the addition of this sentence “make[s] no sense” if jurisdiction to modify the alimony award beyond the five years was retained. We find that the addition of this sentence, being advisory only, does nothing to change the complete reservation of jurisdiction to modify the sustenance alimony award. Thus, we hold that when a court awards sustenance alimony for a number of years or “until * * * further order of the * * * Court,” that court has expressly retained jurisdiction to modify both the amount of the alimony and the length of time the alimony is to be paid. Accord Purpura v. Purpura (1986), 33 Ohio App. 3d 237, 515 N.E. 2d 27. Accordingly, we find appellant’s sole assignment of error well-taken. On consideration whereof, the court finds substantial justice has not been done the party complaining and the judgment of the Lucas Counfy Court of Common Pleas, Domestic Relations Division is reversed. This cause is remanded to said court for further proceedings not inconsistent with this opinion. It is ordered that appellee pay the court costs of this appeal. Judgment reversed and cause remanded. Connors and Glasser, JJ., concur.