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Althammer v. Althammer

Court of Appeals of Ohio, Twelfth District

July 1, 2013

PAMELA ALTHAMMER, Plaintiff-Appellee/Cross-Appellant,
v.
DAVID ALTHAMMER, Defendant-Appellant/Cross-Appellee.

APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 20070547

Bruce S. Wallace, for plaintiff/appellee/cross-appellant

Mark J. Tekulve, for defendant/appellant/cross-appellee

S. POWELL, J.

{¶ 1} Appellant, David Althammer, appeals from the judgment of the Brown County Common Pleas Court denying his request for a reduction in his spousal support obligation to his former wife appellee, Pamela Althammer. We affirm.

{¶ 2} The parties were married in 1980. In 2008, the parties were granted a decree of legal separation, which incorporated their written separation agreement. Under the terms of the decree, David was required to pay Pamela $200 per week in spousal support, indefinitely. The decree contained a provision in which the parties agreed that "[t]he court specifically retains continuing jurisdiction to enforce, but not to modify, the spousal support award." The decree also contained a provision that stated, in the event either party institutes a divorce or dissolution proceeding, the parties' separation agreement "shall be disclosed and presented to the court in such proceeding with the request that it be adjudicated to be fair, just, and proper, and that this agreement and all its terms and provisions be incorporated into the Decree of Dissolution or Divorce Decree of said court."

{¶ 3} In 2011, David filed a motion to reduce his spousal support obligation, after he was laid off from his job at Sardinia Concrete. About one month later, he filed a complaint for divorce. The only contested issue between the parties involved modification of the spousal support award under the decree of legal separation. David argued the trial court had jurisdiction under R.C. 3105.18(D) to modify the spousal support award in the decree of legal separation. Pamela, who, at the time of these proceedings, had been unemployed for about 20 years, largely due to the fact that she has primary progressive multiple sclerosis, requested that the trial court enforce the terms of the decree of legal separation, including the one in which the parties agreed that the trial court "specifically retains continuing jurisdiction to enforce, but not to modify, the spousal support award."

{¶ 4} In 2012, the magistrate determined that "the parties to a legal separation can voluntarily waive the right for a court to retain jurisdiction in order to modify a spousal support award[, ]" and that David had done so by agreeing to the provision in the parties' separation agreement in which the parties agreed that the trial court would not retain continuing jurisdiction to modify spousal support. As a result, the magistrate concluded that David was legally obligated to continue to pay spousal support to Pamela in the amount of $200 per week, indefinitely. The trial court overruled David's objections to the magistrate's decision and adopted it as the order of the court.

{¶ 5} David now appeals, assigning the following as error:

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE TRIAL COURT ERRED IN FINDING THAT IT LACKED JURISDICTION TO MODIFY A SPOUSAL SUPPORT AWARD PURSUANT TO R.C. 3105.18(D).

{¶ 8} Assignment of Error No. 2:

{¶ 9} THE TRIAL COURT'S DECISION DENYING APPELLANT'S REQUEST FOR REDUCTION OR TERMINATION OF SPOUSAL SUPPORT CONSTITUTED AN ABUSE OF DISCRETION MANDATING REVERSAL.

{¶ 10} In his first assignment of error, David argues the trial court erred in finding that it lacked jurisdiction under R.C. 3105.18(D) to modify his spousal support obligation in the decree of legal separation. However, the trial court did not make such a finding. Instead, the trial court determined that the parties had agreed to voluntarily waive their rights to have the trial court retain jurisdiction under R.C. 3105.18(D) to modify the spousal ...


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