In Re Dunn , 101 Ohio App. 3d 1 ( 1995 )

A separation agreement loses its contractual nature the moment it is accepted and incorporated into the final divorce or dissolution decree. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 75 O.O.2d 474, 350 N.E.2d 413, paragraph four of the syllabus;Bugay v. Bugay (1977), 53 Ohio App.2d 285, 288, 7 O.O.3d 336, 338, 373 N.E.2d 1263, 1265. The obligations of the agreement are then imposed by decree and may be enforced in contempt.Robrock v. Robrock (1958), 167 Ohio St. 479, 5 O.O.2d 165,150 N.E.2d 421, paragraph three of the syllabus; Bugay, supra, at 288, 7 O.O.3d at 336, 373 N.E.2d at 1265. The merger does not alter the fundamental nature of the agreement. For example, children still retain rights under the agreement as third-party beneficiaries. However, the merger affects the enforcement of the agreement and the ability to alter it since the parties must receive court approval to alter judicial decrees. Wolfinger v.Ocke (1991), 72 Ohio App.3d 193, 198, 594 N.E.2d 139, 142.

The "amendment" states that the parties intended to alter their obligations under the separation agreement, something they could not do without judicial approval. While the parties have the freedom to contract, here they are seeking to contract about obligations which arose out of their marriage. In Robrock,supra, 167 Ohio St. at 488, 5 O.O.2d at 170, 150 N.E.2d at 428, the Supreme Court quoted with approval from Holloway v.Holloway (1935), 130 Ohio St. 214, 216-217, 4 O.O. 156, 157,198 N.E. 579, 580 an alimony case, stating that the words "seem equally appropriate to a question involving an agreement relating to minor children[:]"

"A decree granting divorce and awarding alimony is an order of court in the enforcement of which the public has a vital interest. An alimony obligor is not exempt from the operation of the decree by reason of the separation agreement. To hold otherwise would be to reduce the status of the divorce and alimony decree to that of a commercial transaction. Marriage, however, is not a matter of commerce, nor is it merely a contract between the parties. Marriage is a basic social institution of the highest type and importance, in which society at large has a vital interest.

"Where a court, in its divorce decree, adopts the language of a separation agreement, it does not thereby reduce the status of the decree to that of a mere contract. While a contract may become a decree of court, a decree of court cannot assume the status of a mere contract. The right to alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support his wife. It is the law rather than contract which imposes this obligation upon the husband." Robrock, supra, 167 Ohio St. at 489, 5 O.O.2d at 170, 150 N.E.2d at 429.

This court has decided cases stating that a separation agreement is a binding contract before the decree is entered and it remains enforceable even if a petition for dissolution is dismissed, provided the parties intended that it survive the dismissal. Bourque v. Bourque (1986), 34 Ohio App.3d 284,518 N.E.2d 49; Flint v. Flint (Feb. 5, 1990), Clinton App. No. CA89-08-014, unreported, 1990 WL 8465; Taylor v. Taylor (Feb. 27, 1989), Madison App. No. CA88-08-019, unreported, 1989 WL 16731. These cases appear to be helpful by analogy, but after study I must conclude that they are not. These cases involve agreements before they were incorporated into a decree. Once they are incorporated into a decree, the rule that they lose their contractual nature applies. See Bourque, supra,34 Ohio App.3d at 286, 518 N.E.2d at 51.

Further, even assuming this is strictly a contract case, does the domestic relations court have jurisdiction to decide the matter? The parties cannot confer subject matter jurisdiction on a court by agreement where subject matter jurisdiction is lacking. State ex rel. Easterday v. Zieba (1991), 58 Ohio St.3d 251,256, 569 N.E.2d 1028, 1033, fn. 3; Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 238, 2 O.O.3d 408, 409,358 N.E.2d 536, 537, overruled on other grounds, Manning v. Ohio StateLibrary Bd. (1991), 62 Ohio St.3d 24, 577 N.E.2d 650.

In a dissolution, the court "retains jurisdiction to modify all matters pertaining to the allocation of parental rights and responsibilities for the care of the children, to the designation of a residential parent and legal custodian of the children, to child support, and to visitation." R.C. 3105.65(B). In Leonard v. Leonard (Aug. 17, 1992), Butler App. No. CA91-08-143, unreported, 1992 WL 201099, the trial court held the appellant in contempt for failure to pay one-half of his son's college expenses as provided for in the parties' decree of dissolution. This court rejected appellant's argument that the trial court had no jurisdiction to order support of an emancipated child. The court concluded that the agreement to assist with college expenses was separate and apart from appellant's legal duty to pay support for his minor children. Id. at 5. It stated that "the present case does not involve child support at all. Rather, it involves a debt voluntarily incurred by appellant in the separation agreement." Id. at 6. Since the agreement to pay for college expenses is separate from the obligation to pay child support, it is arguable that the court has no jurisdiction to modify the original agreement of the parties in that respect. However, I think this argument is somewhat weak given that the child's college expenses are arguably a matter pertaining to the responsibility for the care of the child.

Jurisdiction in domestic relations matters is purely statutory. Gibson v. Gibson (1993), 87 Ohio App.3d 426, 431,622 N.E.2d 425, 428; Owens v. Owens (1948), 85 Ohio App. 414,415-416, 40 O.O. 264, 265, 88 N.E.2d 922, 923. R.C. 3105.011 provides that "[t]he court of common pleas including divisions of courts of domestic relations, has full equitable powers and jurisdiction appropriate to the determination of all domestic relations matters." Even assuming that the "amendment" is an enforceable contract, if the case is simply a contract case as stated by the trial court, then it is arguably not a domestic relations matter at all. After all, the parties could contract about anything.

In Gibson, supra, 87 Ohio App.3d at 431, 622 N.E.2d at 428, the court held that the equity powers of the trial court in a division of property context did not confer upon the court the authority to enter a judgment for damages to a vehicle titled in the husband's name where it is neither authorized by the domestic relations statutes nor demanded by either party. See, also, Morgan v. Morgan (1984), 16 Ohio App.3d 136, 16 OBR 143,474 N.E.2d 1216 (the equity powers of the trial court do not confer upon the court the authority to order a sale of the former marital residence which is neither authorized by statute nor demanded by the adverse party). Nowhere do the domestic relations statutes authorize a domestic relations court to consider purely contractual issues between parties simply because they were married at one time.

The trial court's decision should be reversed, and therefore I respectfully dissent.