No. 25145 | Ohio Ct. App. | May 25, 1960
OPINION
On October 2, 1957, divorce was granted to defendant-appellee. The decree as journalized, among other things, provides:
“The court further finds that heretofore the parties have made a division of their personal property and effects owned during the time of their marriage.”
Further along in the decree of divorce, the Court made the following order:
*544 “It is further ordered, adjudged and decreed that the plaintiff pay to the defendant as alimony the sum of Six Thousand Dollars ($6,000.00). The sum is hereby ordered to be paid by the plaintiff in consecutive equal monthly installments of not less than One Hundred Dollars ($100.00) each beginning on the first day of October, 1957, and to continue to be paid on the first day of every calendar month thereafter until the entire sum of Six Thousand Dollars ($6,000.00) is paid in full, for which judgment is hereby rendered and execution may issue.”
On January 28, 1959, plaintiff-appellant filed the following motion:
“Now comes the plaintiff and moves this honorable court to modify the Journal Entry and decree of Divorce filed October 2, 1957, for the reason that the conditions existing at the time of the divorce have been completely altered since the divorce was granted primarily in that the plaintiff has remarried, as has the defendant; and therefore, the defendant is not entitled to any further alimony; therefore plaintiff requests that the order as to the alimony be terminated for to continue said alimony payment is inequitable,' unjust, and unreasonable, and further for the reasons set forth in the affidavit, attached hereto and made part hereof.”
On December 29, 1959, the Common Pleas Court overruled the motion for the reason that the Court found that the judgment was a lump-sum judgment and not subject to modification. From this judgment overruling the motion to modify the plaintiff-appellant filed his notice of appeal, and the case is before this Court on questions of law.
The trial court declined to modify the order embraced in the divorce decree for the reason that it was an award of alimony in gross as expressed by the plain language of the order, and in the absence of any one of the ten statutory grounds found in §2325.01 R. C., the court was without jurisdiction to vacate or modify the same. No express jurisdiction was reserved by the trial Court. The journal entry discloses that the Court rendered judgment for the full amount of $6,000.00 and permitted the plaintiff-appellant to pay the same in monthly installments.
We are in complete agreement with the trial Court that this was a final judgment for alimony in gross and not subject to modification. There is nothing in the decree nor in the record to support the defendant-appellee’s contention that this order was for support of the defendant. It was an award made by the Court in the exercise of its full equity powers of a fixed sum certain payable in specific monthly payments with a definite termination.
Judgment of the trial court affirmed.
Exceptions. Order see journal.