COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60223 LAMAR GRIMES : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION DORIS M. GRIMES : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Domestic Relations Div. Case No. 73 D-45538. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Roy M. Kaufman, Esq. 745 Leader Building Cleveland, Ohio 44114 For Defendant-appellee: Michael J. Caticchio, Esq. 5001 Mayfield Road Lyndhurst, Ohio 44124 - 2 - SWEENEY, JAMES D., J.: Plaintiff-appellant LaMar Grimes appeals from the decision of the Court of Common Pleas, Domestic Relations Division, which denied his motion to modify alimony. The trial court affirmed the report and recommendations of the referee, which stated that the court had no jurisdiction to grant appellant's request. Defendant-appellee Doris M. Grimes did not submit a brief on appeal. In the final divorce decree, journalized on January 16, 1976, appellee was awarded fifty dollars a week as alimony which was terminable only on her death or remarriage. Appellant was also ordered to pay ten dollars a week to be applied to his alimony arrearage until the arrearage was liquidated. It is this 1 order that appellant seeks to change. The parties did not enter into a separation agreement; the terms contained in the divorce decree were issued from the bench but were approved by counsel of both parties. On August 14, 1989, appellant filed a motion to modify alimony. The motion was heard before a referee on April 16, 1990, and the report was issued on May 4, 1990. Appellant filed objections to the report on May 17, 1990, and on May 17, 1990, 1 Also as alimony, appellee was awarded appellant's interest in a two-family house located at 803 Thornhill Drive, Cleveland, Ohio. In addition, the decree awards "for partial additional alimony expenses" a sum of $2,000.00 to be paid to appellee and $750.00 to be paid to appellee's counsel. These terms are not contested in this appeal. - 3 - the objections were overruled. The trial court adopted the referee's report, and denied appellant's motion to modify. The report and recommendation of the referee stated: The Referee further finds that there is no reservation of jurisdiction; that the order for divorce was reached pursuant to agreement and approval of the parties; and that therefore the Court has no jurisdiction to modify said award. Supancik v. Supancik (1981), 66 Ohio St. 2d 360; Newman v. Newman (1954), 161 Ohio St. 247; see also Popovic v. Popovic (1975), 45 Ohio App. ed 57. (sic) Appellant's sole assignment of error: THE TRIAL COURT ERRED WHEN IT DISMISSED PLAINTIFF-APPELLANT'S MOTION TO MODIFY ALIMONY FOR LACK OF JURISDICTION. The Supreme Court recently discussed the issue of alimony in Kunkle v. Kunkle (1990), 51 Ohio St. 3d 64. The court stated: In Ohio, alimony consists of two components: a division of marital assets and liabilities, and periodic payments for sustenance and support. Kaechele v. Kaechele (1988), 35 Ohio St. 3d 93, 95, 518 N.E. 2d 1197, 1200. As part of a divorce proceeding, a trial court has equitable authority to divide and distribute the marital estate, and then consider whether an award of sustenance alimony would be appropriate. Holcomb v. Holcomb (1989), 44 Ohio St. 3d 128, 541 N.E. 2d 597; R.C. 3105.18(A). Courts in this state derive their power to award sustenance alimony from the statutes. R.C. 3105.18(A) and (B) provide a trial court with guidelines for determining whether alimony is necessary and the nature, amount and manner of alimony payments. Wolfe v. Wolfe (1976), 46 Ohio St. 2d 399, 414, 75 O.O. 2d 474, 482, 350 N.E. 2d 413, 423. - 4 - The modern view is that an alimony award should be terminable upon a date certain, except where a hardship would be worked on either party. An example would be where the marriage was of long duration, the parties of advanced age, and the homemaker-spouse has little opportunity to develop a career. Kunkle, supra, citing to Koepke v. Koepke (1983), 12 Ohio App. 3d 80. In the case sub judice, the divorce was final sixteen years ago and the alimony award was for an indefinite time. The parties involved are now both receiving social security. Appellant argues that due to his retirement, circumstances have changed, and he has requested that the alimony award made by the court in 1976 be changed. The court below declined to do so, and based the decision on a lack of jurisdiction. The case law is clear that when the divorce decree does not specifically reserve jurisdiction to the court, the court retains jurisdiction only where the alimony is indefinite and the decree was not rendered pursuant to an agreement between the parties. Conversely, where the alimony is indefinite and the decree incorporates an agreement between the parties, the court does not retain jurisdiction absent an express reservation. Popovic v. Popovic (1975), 45 Ohio App. 2d 57. In Popovic, the court held: It is not necessary that this agreement be an executed written separation agreement entered into prior to the hearing on the merits of the divorce case. It is sufficient - 5 - that the agreement is either written or oral and entered into prior to or at the time of the divorce trial or hearing. Robrock v. Robrock, 167 OhioSt. 479, 480, 5 O.O.2d 165 (1958); Mozden v. Mozden, 162 OhioSt. 169, 55 O.O. 4 (1954). Here, there is no evidence that the divorce decree was an incorporated agreement of the parties. The divorce was granted after a hearing before a referee; and the court's judgment entry states "Upon the evidence and due consideration thereof, the Court finds . . .." The court went on to make findings, order alimony, and order the division of property. The court made no finding that the parties entered into an agreement, and did not adopt an agreement as an order of the court. There is no transcript or other record which evidences an agreement of the parties at the time of the decree. Although counsel for both parties signed the judgment entry underneath the judge's signature, and underneath a line which states "approved:," we find these signatures to be a mere acknowledgment of the judicial decree. Absent other evidence of an agreement between the parties, the signature of counsel on a bench decree is not sufficient evidence to assume a prior agreement of the parties. Since the alimony award was for an indefinite time, and was issued pursuant to a bench decree, the trial court retains jurisdiction to hear a motion to modify alimony. Appellant's assignment of error is well taken. Judgment reversed. - 6 - This cause is reversed. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOHN T. PATTON, P.J., and PATRICIA A. BLACKMON, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .