COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71829 MARY WISE : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION RAYMOND WISE : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : OCTOBER 9, 1997 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. D-196240 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellee: GEORGE V. MCCULLOCH, ESQ. JACOB A. H. KRONENBERG, ESQ. Ohio Savings Bldg. JANET L. KRONENBERG, ESQ. Suite 106 KRONENBERG & KRONENBERG 22255 Center Ridge Road 410 Midland Bldg. Rocky River, OH 44116 101 Prospect Avenue Cleveland, OH 44115-1092 PATTON, P.J. Defendant-appellant, Raymond Wise ( husband ), appeals the decision of the domestic relations court denying his motion to 2 dismiss and granting plaintiff-appellee, Mary Wise's ( wife ) claim for spousal support. Husband and wife's thirty year marriage ended in a divorce, finalized on March 23, 1979. Eight children were born during this marriage. Subsequent to the divorce, the parties continued to live together as husband and wife for another ten years, creating a common law marriage. In 1989, wife filed a complaint for alimony only. The final decree was journalized on March 15, 1990 and wife was granted a legal separation. The decree also stated that husband must provide wife with medical insurance and a life insurance policy. A few years later, on July 28, 1995, wife filed a contempt motion against husband for failure to pay medical bills, alimony, and attorney fees. On December 21, 1995 wife filed a second contempt motion again complaining of failure to pay. Husband responded to the second contempt motion by filing a motion to dismiss for failure to state a claim upon which relief can be granted. Husband argued that in the final decree there was no mention of an ongoing obligation whereby he had to pay spousal support thus he should not be held in contempt because he did not violate any court order. Wife stated her complaint for alimony was based on an interlocutoryorder which resulted in husband paying her $1,000.00 a month. She claimed husband made this monthly payment for five years before stopping payment. 3 The magistrate found that relief under Civ.R. 60(A) is appropriate and considering the length of the marriage, the nature of the action (for spousal support), that Defendant did not challenge Plaintiff's right to support during these proceedings, and Plaintiff's reliance on Defendant's sending her the funds, this Court, as a Court of equity, must effectuate the intent of the parties. The court then granted wife permanent spousal support in an amount of $1,000.00 a month based on a Civ.R. 60(A) omission stating [t]he final judgment is hereby corrected to incorporate the terms of the Agreed Judgment Entry of support entered October 30, 1989. Husband now appeals this finding and assigns a single assignment of error, stated as follows: THE TRIAL COURT ERRED IN MODIFYING THE PARTIES 1990 DECREE OF LEGAL SEPARATION TO INCLUDE A DUTY OF PERMANENT SUPPORT AND IN DETERMINING THAT APPELLANT HAD BREACHED THAT DUTY. Husband submits three arguments on appeal. First, he claims the lower court erred in its application of Civ.R. 60(A). Husband argues Civ.R. 60(A) is inapplicable because this rule permits corrections of blunders in judgment such as clerical errors and is not intended to correct the substantive mistakes, which occurred in the present case. In contrast, wife argues the lower court recognized the clear intent of the parties and prior judgments by granting her spousal support. Thus, the modification pursuant to Civ.R. 60(A) was appropriate. The record reveals that a temporary support hearing was held in 1989 pursuant to the wife's motion for temporary alimony filed 4 contemporaneously with her complaint for alimony. At the hearing the parties entered into a handwritten agreement which stated: The parties agree that this matter as to temporary and permanentalimony i.e. (The main cause of action herein) is settled: 1. Defendant husband agrees to pay half (/) from the Cleveland Fire Fighter's Pension Plan and 2. Half (/) his Social Security payment 3. Both payments will, at this time, be deposited in Plaintiff/wife's account at Women's Federal Savings on Ridge Road, in the amount of $1,000.00. 4. The above terms are to be the final order of this Court once a QDRO is prepared. (emphasis added). Also contained in the record is a handwritten letter husband wrote to wife which stated: Dear Mary, I promise sincerely (an irrevocable promise) to deposit into your Women's Federal account at least half of all monies received from both pension checks each month and will stop the abuse forever. You have earned the above money for your devoted care for me and our children. This will put an end to the stress you've been under and now we can carry on with our life together. Raymond Wise In addition, following this agreement husband made the $1,000.00 monthly payments to wife for a period of five years. Civ.R. 60(A) permits a trial court, in its discretion, to correct clerical mistakes which are apparent on the record, but it does not authorize a trial court to make substantive changes in judgments. Londrico v. Delores C. Knowlton, Inc. (1993), 88 Ohio App.3d 282, 285. The term clerical mistake refers to a mistake or omission, mechanical in nature and apparent on the record which does not involve a legal decision or judgment. Id. 5 In the present case, there is an omission. On October 30, 1989 the parties agreed to a permanent spousal support award and pursuant to this agreement husband began making $1,000.00 monthly payments. Four months later, on March 15, 1990, the lower court entered a final judgment but failed to incorporate the earlier agreed spousal support. However, the husband continued to make the monthly payments apparently under the impression that the settle- ment agreement had been incorporated into the divorce decree. Eventually, husband stopped making payments and after wife filed two motions for contempt the lower court granted the award of spousal support. Husband claims requiring him to pay spousal support is a denial of his substantive rights. However, husband cites no case law in support of his contention that correcting an omission in a prior judgment such as requiring a husband to continue to pay spousal support is a denial of a substantive right. Therefore, construing the evidence in the record, that husband continued to make these payments for six years, that husband acknowledged this obligation in a letter he wrote to wife, and the fact that during all the proceedings husband never contested spousal support, we conclude that the omission of the spousal support award was a clerical error which was apparent from the record and the lower court correctly applied Civ.R. 60(A). Husband next argues wife is precluded from using Civ.R. 60(A) or 60(B)(1) because she failed to file her motion for relief from judgment within the one year time period. Wife maintains the one year time period is inapplicable to the present case because the 6 lower court used Civ.R. 60(A) and not 60(B)(1). Therefore, her motion for relief was timely filed because Civ.R. 60(A) uses a reasonable standard and not a one year period. The lower court used Civ.R. 60(A) in the present case. The rule states clerical mistakes and omissions may be corrected by the court at any time on its own initiative or on the motion of any party. This allows a court at any time to correct mistakes or omissions, thus there was no failure by the wife to timely file her motion for relief from judgment. Lastly, husband argues the merger doctrine applies and the lower court erred by enforcing the interlocutory order for spousal support. Husband claims the merger doctrine precludes the lower court from awarding wife spousal support because the merger doctrine provides that interlocutory orders are merged in the final decree and the right to enforce such interlocutory orders does not extend beyond the final decree unless the orders have been reduced to a separate judgment or have been considered by the trial court and specifically referred to within the decree. Colom v. Colom (1979), 58 Ohio St.2d 245. Essentially, husband claims the order awarding the wife spousal support was an interloc- utory order and interlocutory orders cannot be enforced once there a final decree is entered. In support of this argument, defendant cites voluminous case law. However, this case law can be distinguished by the fact that in every case cited by husband the court orders were temporary in nature. The merger doctrine holds that temporary orders not merged 7 into the final decree are waived. In the present case, the spousal support award was not a temporary order but rather a permanent award and therefore it did not merge into the final decree and was not waived. The reasoning in Colom and the principles of the merger doctrine do not apply to the facts of the present case. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. 8 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 Court of Common Pleas 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. SPELLACY, J. HOLMES, J.,* CONCURS. JUDGE JOHN T. PATTON *SITTING BY ASSIGNMENT: ROBERT E. HOLMES, RETIRED JUSTICE OF THE OHIO SUPREME COURT. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .