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Susan M. Harper v. David W. Harper

October 13, 2011

SUSAN M. HARPER PLAINTIFF-APPELLEE
v.
DAVID W. HARPER DEFENDANT-APPELLANT



Civil Appeal from the Cuyahoga County Common Pleas Court Domestic Relations Court Case No. CP D-325503

The opinion of the court was delivered by: Eileen A. Gallagher, J.

Cite as

Harper v. Harper,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: E. Gallagher, J., S. Gallagher, P.J., and Keough, J.

{¶1} Appellant David W. Harper appeals from an order of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, denying his motion for relief from judgment under Civ.R. 60(B)(4). For the following reasons we affirm.

{¶2} On March 19, 2009, appellee Susan M. Harper filed a complaint for divorce, which appellant answered and asserted a counterclaim. The case proceeded to trial on January 11, 2010. After four days of testimony, the parties reached an agreement resolving the parties' dispute and disposing of all pending issues. The agreement was reduced to writing in the form of a separation agreement. The trial court noted that each party had reviewed the agreement independently, and with counsel, and that each party understood the terms contained within the agreement. The separation agreement explicitly stated that the parties' agreement as to spousal support "shall not be modifiable by a Court of competent jurisdiction except to the extent necessary to effectuate the parties' intentions by issuance of wage orders, bank attachments, etc. * * *." In regards to the entire separation agreement, clause 12 provides that, "[e]xcept as otherwise expressly provided herein, this Agreement shall not be altered or modified, unless it be done in writing and signed by both parties." The trial court found the terms of the separation agreement to be fair, just, and equitable and incorporated the agreement into its February 17, 2010 judgment entry of divorce.

{¶3} Ten months later, appellant filed a Civ.R. 60(B) motion for relief from the judgment seeking an order from the trial court vacating the separation agreement. Appellant's attached affidavit explained that his sole source of income was his business, Harper Engineering, Inc., and that the financial institution from which the business derives its line of credit recently indicated that, absent a "drastic improvement," the business's line of credit would not be renewed. Appellant avered that his efforts to seek an alternative line of credit were unsuccessful. Appellant stated that, "without a line of credit from which to operate, I am concerned and afraid that Harper Engineering, Inc. will soon become not viable." Appellant concluded that he would not be able to pay his spousal support obligations and property division payments. Based on these circumstances, appellant argued that the prospective application of the separation agreement was no longer equitable.

{¶4} On January 27, 2011, the trial court denied appellant's Civ.R. 60(B) motion, citing the Ohio Supreme Court's decision in Knapp v. Knapp (1986), 24 Ohio St.3d 141, 493 N.E.2d 1353, and this court's holding in Pumper v. Pumper, Cuyahoga App. No. 93916, 2010-Ohio-4131. Appellant brought the present appeal asserting that the trial court erred in denying his Civ.R. 60(B)(4) motion and further erred by ruling on the motion without holding an evidentiary hearing.

{¶5} We begin our analysis by noting that the General Assembly has limited the jurisdiction of the courts to modify spousal support payments, which were agreed to pursuant to a separation agreement, that is incorporated into a divorce decree. This Court has previously stated that, "[t]he appropriate remedy, when there is a change in a party's circumstances after a divorce decree, is to file a motion to modify under R.C. 3105.18(E)." Hirsh v. Hirsh (Nov. 22, 1995), Cuyahoga App. No. 67977, at 4. "R.C. 3105.18 governs a trial court's authority to terminate or modify a spousal support order. In order for a trial court to modify the amount or terms of spousal support, the court must have jurisdiction to make the modification as provided in R.C. 3105.18(E)." Calabrese v. Calabrese, Cuyahoga App. No. 88520, 2007-Ohio-2760, at ¶19. R.C. 3105.18(E) provides in pertinent part:

"(E) If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies:

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 ...


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