COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75511 SHELVEY J. MADAMA : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION LAWRENCE A. MADAMA, SR., et al. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT DECEMBER 23, 1999 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division Common Pleas Court Case No. D-215215 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: HENRY C. EPP, ESQ. 55 Public Square Suite 1350 Cleveland, Ohio 44113 For Defendants-Appellants: VINCENT A. STAFFORD, ESQ. Joseph G. Stafford & Assoc. 380 Lakeside Place 323 Lakeside Avenue, West Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.: -2- Appellant Lawrence A. Madama appeals the decision of the trial court dismissing his motion to modify spousal support for lack of jurisdiction. He assigns the following error for our review: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRORED [sic] AS A MATTER OF LAW WHEN IT DISMISSED THE APPELLANT'S MOTION TO MODIFY SPOUSAL SUPPORT FOR LACK OF JURISDICTION. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Appellant Lawrence A. Madama filed a motion to modify a 1992 indefinite spousal support award. The September 1992 order, signed by both parties,1 provided for appellee Shelvey J. Madama to receive $1,436.16 a month and any reduction of that amount would occur if the wife elected the husband's social security benefits; additionally,the order provided that the support obligation would terminate upon the wife's death, remarriage, or cohabitation. The order failed to retain jurisdiction in the trial court for future modifications. In fact, the reduction clause in the order set forth steps to actuate without the trial court's intervention. Neither party appealed the 1992 order. 1 Although previously referred to as an agreed entry by this court in Madama v Madama (Sept. 3, 1998), Cuyahoga App. No. 73288, unreported (finding trial courts award of spousal support and arrearages to appellee of $1,721.76 reasonable and affirming the order finding appellant in contempt), the entry of the court makes no reference to an agreement by the parties. See Grimes v. Grimes (July 2, 1992), Cuyahoga App. No. 60223, unreported (absent other evidence of an agreement the signature of the parties on a divorce decree issued from the bench is a mere acknowledgment). -3- After reviewing appellant's motion to modify, the trial court denied the motion for want of jurisdiction. Appellant objected to the magistrate's ruling and the trial court adopted the magistrate's decision in its entirety. Because the magistrate's decision only reviewed the jurisdictional issue, we limit our discussion to that issue as well. The sole issue in this appeal is whether the trial court's failure to retain jurisdiction is an abuse of discretion when the trial court awards spousal support for an indefinite period of time. In resolving this issue, we look to the standard of review, the history of the case, and the historical case law. The standard of review has most recently been defined by the Ohio Supreme Court as follows: The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing [***] considerations. State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 Ohio B. Rep. 311, 361, 473 N.E.2d 264, 313, quoting Spalding v. Spalding (1959), 355 Mich. 382, 384-385, 94 N.W.2d 810, 811-812. In order to have an abuse of that choice, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Nakoff v. Fairview General Hospital (1996), 75 Ohio St.3d 254, 256- 257. The history of the case is important to the question of whether appellant waived his right to raise his challenge to the 1992 indefinite spousal support award. In 1992, the trial court's -4- entry clearly did not retain jurisdiction over this spousal award for future review and appellant failed to challenge that entry or appeal it to this court. He did, however, challenge the award in an appeal to this Court in 1997 after the trial court held him in contempt. See Madama v. Madama (Sept. 3, 1998) Cuyahoga App. No. 73288, unreported. In that case, he challenged the 1992 judgment as excessive. However, because of the way appellant framed the issue, this Court merely addressed the question of whether the attachment order exceeded the 50% mandate of 15 U.S.C. 1673. We held that the withholding employer bears the burden of insuring that no more than 50% of appellant's wages are subject to an attachment. The historical case law in this jurisdiction is that prior to 1986, trial courts in reviewing judgment entries could infer continuing jurisdiction to modify when the entry awarded indefinite spousal support. See Gullia v. Gullia (1994) 93 Ohio App.3d 653. In Gullia, we recognized that a failure to follow the mandate of the 1986 amendment to R.C. 3105.18 constituted reversible error when the trial court failed to retain jurisdiction. Citing Nori v. Nori(1989) 58 Ohio App.3d 69; Shannon v. Shannon (Jan. 28, 1993), Cuyahoga App. No. 61714, unreported. The query is whether a failure to pursue the trial court's failure to retain jurisdiction on direct appeal forecloses an appellant seven years later from so doing. The magistrate in this case held that in order to address this issue appellant should have -5- pursued the matter in 1992 and is now foreclosed under the doctrine of waiver. We agree. It is obvious from a reading of [R.C. 3105.18] that the legislative intent was to ensure the finality of judgment in the area of domestic relations. Johnson v. Johnson (1993) 88 Ohio App.3d 319, 331. Accordingly, a party must challenge the trial court's failure to retain jurisdiction to modify spousal support awards in a timely manner by direct appeal. Id.; see, Lawson v. Garrison (September 4, 1998) Lucas App. No. L-98-1145, unreported. In all of the cases reviewed by this court the challenge by the appellant on the continuing jurisdiction issue had been made on direct appeal. Gullia, Shannon, Nori, and Robiner v. Robiner (Dec. 7, 1995), Cuyahoga App. No. 67195, unreported. Specifically in Robiner v. Robiner, the trial court retained jurisdiction to modify an indefinite spousal support award only upon the occurrence of certain events, including the plaintiff's election of social security upon defendant obtaining the age of sixty-two. On the appeal, this Court acknowledged that over the term of an indefinite award, significant changes of circumstances could arise that can not be foreseen or anticipated. Accordingly, this Court held that an abuse of discretion occurs when the trial court places restrictions on its ability to retain jurisdiction to modify an indefinite spousal support award. We, of course, find no quarrel with that case or any of its progeny. Those cases acknowledge the appellant's right to timely appeal where the trial court has failed to include the retention of -6- jurisdiction in an indefinite spousal support award. However, those cases do not mandate that all indefinite spousal support awards are per se reviewable by their nature. Johnson clearly states that the General Assembly intended for judgments to have finality. Consequently, we believe that a party who fails to object timely to an otherwise erroneous entry may very well waive the right to complain. Here, appellant waited seven years to address this issue. Thus, he is jurisdictionally barred from complaining now. Additionally, appellant argues that the language in the 1992 judgment entry that provides for automatic reductions upon the occurrence of certain events contained in his divorce decree must be interpreted as equivalent to a full retention of jurisdiction. Appellant cites Redoutey v. Redoutey (June 24, 1996), Scioto App. No. 95 CA 2387, unreported. In Redoutey, the trial court, retained full jurisdiction to review its indefinite spousal support award and committed itself to review the award at the end of four years. Approximately four months after the divorce decree, on motion by the payor spouse, the trial court terminated spousal support because the obligee/ex-wife had remarried. The obligee appealed arguing that the trial court restricted its jurisdiction to modify the support award prior to the specified four year review. The appeals court rejected the obligee's argument finding that trial court made a full reservation of jurisdiction to modify or terminate the award and that the language regarding the four year review was not a limitation on jurisdiction, but rather, committed the trial court to review its indefinite award at specific time in the future. Redoutey does not stand for the proposition espoused by appellant. In Redoutey, the trial court had retained jurisdiction even though it had limited itself. The appeals court found that the court had fully retained jurisdiction to modify in the event of changed circumstances. Here, the trial court flat out failed to retain jurisdiction. Although we believe this to be erroneous we are persuaded that, under Johnson, appellant has waived his right to complain. We conclude, therefore, that appellant waived his right to challenge the 1992 order when he failed to file a direct appeal; accordingly, the trial court did not abuse its discretion. Appellant's assigned error is overruled. Judgment affirmed. -8- It is ordered that appellee recover of appellants 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 Domestic Relations Division, Common Pleas 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. JAMES M. PORTER, A.J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON JUDGE 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. 22. 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 .