Saturday, July 20, 2013

Spousal Support Modification Issues: Court Reservation of Jurisdiction

Before a separation agreement or final decree of divorce is submitted to the court for adoption, language such as, “The Court shall maintain jurisdiction over the amount and duration of spousal support,” MUST be considered should future relief be a possible issue.

The Ohio Revised Code spells it out:

3105.18 Awarding spousal support - modification of spousal support. (Content edited for readability.)

(E)

(1) The decree of divorce 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 the amount or terms of alimony or spousal support.

(2)  In the case of a dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(F)

(1) For purposes of division (E) of this section and subject to division (F)(2) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as BOTH of the following apply:

(a) The change in circumstances is substantial and makes the existing award no longer reasonable and appropriate.

(b) The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was foreseeable.

(2) In determining whether to modify an existing order for spousal support, the court shall consider any purpose expressed in the initial order or award and enforce any voluntary agreement of the parties. Absent an agreement of the parties, the court shall not modify the continuing jurisdiction of the court as contained in the original decree.

“A court's reservation of jurisdiction is a FORM OF RELIEF awarded in a final judgment. Ohio Revised Code 3105.18(E)(2) authorizes the court to exercise the jurisdiction IT RESERVED by modifying a spousal support award. However, that section does not likewise authorize the court to modify its prior order by vacating its reservation of jurisdiction. Courts may not modify or vacate their prior final orders except pursuant to Civ. R. 60(B) or an express legislative mandate. The reservation of jurisdiction authorized by R.C. 3105.18(E)(2) is therefore not, by its own terms, subject to subsequent modification by the court.” [Edited excerpt taken from Apt v. Apt, 192 Ohio App. 3d 102; 2011 Ohio 380; 947 N.E.2d 1317; 2011 Ohio App. LEXIS 326, HN6.]

When a court expressly does not maintain jurisdiction over the amount and duration of spousal support, the party seeking relief from the court for any reason justifying a modification of the court ordered spousal support (such as an involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances) may file, as stated above, a motion pursuant to Civ. R. 60(B). The factors underlying Civ. R. 60(B) motions are set out below.

RULE 60. Relief From Judgment or Order

(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc.

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

Often relief from an order regarding the amount or duration of spousal support is premised on Civ.R. 60(B)(5). This rule provides that the trial court may relieve a party from a final judgment for any "reason justifying relief from that judgment." The rule is intended as a catch-all provision reflecting the inherent power of the trial court to relieve a person from the unjust operation of a judgment.

Before filing a motion pursuant to Civ.R. 60(B), the party seeking a modification of the court’s prior spousal support order must carefully consider Ohio Revised Code 3105.18 (E)(F) as set out above.
 
Should You Appeal The Court's Decision?
 
Trial Court's Discretion:
The trial court is accorded broad discretion in determining whether to modify an existing spousal support award. Hines v. Hines, 3d Dist. No. 9-10-15, 2010-Ohio-4807, ¶ 17; Mottice v. Mottice (1997), 118 Ohio App.3d 731, 735, 693 N.E.2d 1179.
A trial court's decision regarding modification of a spousal support award will not be disturbed on appeal absent a finding that the court abused its discretion.
See Bostick v. Bostick, 3d Dist. No. 1-02-83, 2003-Ohio-5121, ¶ 8, citing Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028.
An abuse of discretion amounts to the trial court being found to have made an unconscionable, unreasonable, or arbitrary judgment. You may feel the trial court made an error in its judgment, but, before pursuing a costly appeal, consider what an appellate court must find to hold the trial court's judgment constituted an abuse of discretion.
The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

3 comments:

  1. Court should be ensured this support pretty much. cheating husband nc

    ReplyDelete
  2. Thank you for sharing the information.

    Spousal support is becoming very important before finalizing the divorce and the law is now a days, is focusing on maintaining the jurisdiction of the amount and duration of any spousal support.

    There are many firms who are providing the service of spousal support and there is one such firm named as Barranco law who is providing the service of complex marital, family law and general trial practice as well as spousal support law.

    ReplyDelete