COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60311 JULIE RUSSELL : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD L. RUSSELL : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 2, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Domestic Relations Division Case No. D-191045 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: THOMAS A. KONDZER, ESQ. IRENE A. HOLYK, ESQ. KOLICK & KONDZER CLIMACO, CLIMACO, SEMINATORE, 24500 Center Ridge Road LEFKOWITZ & GAROFOLI CO. Suite 175 The Halle Building, 9th Floor Westlake, Ohio 44145 1228 Euclid Avenue Cleveland, Ohio 44115 - 2 - J.F. CORRIGAN, P.J., Defendant Richard Russell appeals from the order of the trial court which determined that the court lacked jurisdiction to modify the sustenance alimony provision of the dissolution decree which terminated defendant's marriage to plaintiff Julie Russell. We affirm. I. On December 15, 1988, the parties filed a petition for dissolution of marriage. Appended to this petition was the parties' separation agreement which provided in relevant part as follows: 2. ALIMONY: Husband shall pay to the Wife the sum of Twenty-Eight Hundred Dollars ($2,800.00) per month as and for support alimony beginning December 1, 1988, and each month thereafter, on the first day of each month in advance, until her sixty-fifth birthday or her death or remarriage, whichever event occurs first. *** 13. MODIFICATION BY THE PARTIES: Except in the event of a decree of dissolution of marriage, and only by Court order, or except as herein otherwise provided, this Agreement shall not be altered or modified, unless it be done in writing and signed by both parties. ****. On January 27, 1989, the trial court issued a decree of dissolution which incorporated the parties' separation agreement. On February 14, 1990, defendant moved to modify the foregoing sustenance alimony provision, contending that his - 3 - financial circumstances had changed, and that he was unrepresented during the dissolution proceedings. In June 1990, the parties submitted briefs to Referee Neel in which they presented their positions relative to the trial court's jurisdiction to modify the alimony provision. Thereafter, on June 24, 1990, the trial court dismissed defendant's motion to modify, in an entry which provided: "On February 14, 1990 counsel filed Motion to Modify Alimony #161693, per Referee Bernadette Neel, motion be and is hereby dismissed for want of jurisdiction. "IT IS SO ORDERED." Defendant now appeals, assigning two errors which we shall consider in reverse order. II. Defendant's second assignment of error states: "WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DISMISSING APPELLANT'S MOTION TO MODIFY ALIMONY PAYMENTS WHERE THE PARTIES HAD AGREED TO CONTINUING JURISDICTION FOR SUCH PURPOSE AND THE SEPARATION AGREEMENT WAS INCORPORATED INTO A DECREE OF DISSOLUTION OF MARRIAGE." R.C. 3105.65 provided as follows at the time the parties executed their separation agreement: "If, upon review of the testimony of both spouses, and the report of the investigator pursuant to the civil rules, the court approves the separation agreement and any amendments to it agreed upon by the parties, it shall grant a decree of dissolution of marriage that incorporates the separation agreement. A decree of dissolution of marriage has the same effect upon the - 4 - property rights of the parties, including right of dower and inheritance, as a decree of divorce. The court has full power to enforce its decree, retains jurisdiction to modify all matters of custody, child support, and visitation, and, only in accordance with division (D)(2) of section 3105.18 of the Revised Code, has authority to modify the amount or terms of alimony." (Emphasis added.) (141 Ohio Laws, Part II, 3388, 3390.) R.C. 3105.18(D)(2) in turn provided: "If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after the effective date of this amendment, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony unless the court determines that the circumstances of either party have changed and unless one of the following applies: "*** "(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." (Emphasis added.) (141 Ohio Laws, Part II, 3388, 3389.) Thus, in order for a trial court to have jurisdiction to modify an alimony provision which is incorporated into a decree of dissolution, the decree must contain a provision which specifically authorizes modification of the terms or amount of this provision. See, Colley v. Colley (1989), 43 Ohio St. 3d 87; Crouser v. Crouser (1988), 39 Ohio St. 3d St. 177, 179. - 5 - In this case, the language relied upon by defendant is as follows: "Except in the event of a decree of dissolution of marriage, and only by Court order, or except as herein otherwise provided, this Agreement shall not be altered or modified, unless it be done in writing and signed by both parties." We find this language insufficient to confer jurisdiction upon the court to modify the amount and terms of alimony, as it fails to specifically authorize such a modification. That is, the language merely indicates that unspecified modification will be permitted if a dissolution is subsequently entered, and the language therefore constitutes nothing more than an acknowledgement of R.C. 3105.65(B). Defendant contends, however, that the language at issue is indistinguishable from the language at issue in Colley v. Colley, supra, which was determined to confer jurisdiction for modification. The language in Colley v. Colley, supra, however, provided that "[a]ll of the provisions [in the Separation Agreement] are subject to the continuing jurisdiction of the Court." As noted previously, however, the language at issue here does not specify that which may be modified, and does not specifically authorize modification of alimony. Defendant further claims that modification should be permitted because it was his understanding that the parties' separation agreement did confer continuing jurisdiction to modify the alimony provision, and the refusal to recognize continuing - 6 - jurisdiction would work a fraud upon him. As the question of jurisdiction is to be determined solely with reference to the controlling statutes, court decisions interpreting those statutes, and the language of the relevant court entries, cf. Colley v. Colley, supra, these contentions are insufficient to alter our holding. Moreover, these allegations were set forth in defendant's partial motion to vacate, which is currently pending before the trial court. Thus, they must first be considered by the trial court, before being raised here. Defendant's second assignment of error is overruled. III. Defendant's first assignment of error states: "WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ENTERING THE JULY 27, 1990 JOURNAL ENTRY WITHOUT A REFEREE'S REPORT BEING ISSUED." Civ. R. 53 provides in pertinent part: (C) Powers. The order of reference to a referee may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of his report. *** (E) Report. (1) Contents and filing. The referee shall prepare a report upon the matters submitted by the order of reference. The referee shall file the report with the clerk of the court and shall mail a copy to the parties. *** (Emphasis added.) - 7 - (2) Objections to report. A party may, within fourteen days of the filing of the report, serve and file written objections to the referee's report. If objections are timely served and filed by any party, any other party may serve and file objections within ten (10) days of the date on which the first objections were filed, or within the time otherwise prescribed by this rule, whichever period last expires. Such objections shall be considered a motion. Objections shall be specific and state with particularity the grounds therefor. Upon consideration of the objections the court may: adopt, reject or modify the report; hear additional evidence; return the report to the referee with instructions or hear the matter itself. ****." By local rule of court, an order of reference is automatically made with respect to all motions unless the assigned judge indicates otherwise. Loc. R. 16 of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division. Cf. White v. White (1977), 50 Ohio App. 2d 263, 267. A report, and an opportunity to raise objections are in turn required where automatic reference is made. Civ. R. 53(E). However, the failure to comply fully with Civ. R. 53(E) may be considered harmless where the complaining party fails to demonstrate that the procedures employed were prejudicial to his substantive rights. See Eisenberg v. Peyton (1978), 56 Ohio App. 2d 144, 149. In this case, the matter was clearly referred to a referee by operation of Loc. R. 16. Accordingly, the referee should have issued a report, and the court should have allowed time for - 8 - objections before rendering judgment. However, because the ruling of the trial court was correct by application of the relevant statutes and Colley v. Colley, supra, we recognize no prejudice to defendant and therefore deem the error harmless. The first assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court, Domestic Relations Division 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. LEO M. SPELLACY, J., CONCURS. BLANCHE KRUPANSKY, J., CONCURS IN JUDGMENT ONLY. JOHN F. CORRIGAN PRESIDING 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. .