“Applying the principle of expressio unius est exclusio alterius [to the separation agreement], which means that the expression in a contract of one or more things of a class implies the exclusion of all not expressed, the trial court did not abuse its discretion in limiting [the husband]’s obligation to those terms specified in the agreement.”
How later courts described this case
- “Applying the principle of expressio unius est exclusio alterius [to the separation agreement], which means that the expression in a contract of one or more things of a class implies the exclusion of all not expressed, the trial court did not abuse its discretion in limiting [the husband]’s obligation to those terms specified in the agreement.”
Written by the judges who cited it.
The opinion
Cacioppo, Presiding Judge,
dissenting.
I respectfully dissent. In
In re Dissolution of Marriage of Seders
(1987), 42 Ohio App.3d 155 , 536 N.E.2d 1190 , we held that a trial court does not have
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the power to modify the terms of a separation agreement entered into between the parties. In this case, the trial court has limited Nicholas’s obligation far short of that which the parties intended.
This case does not present a situation in which an ambiguous term must be clarified. Although, standing alone, the term “college costs” is ambiguous, the list of terms which follow “college costs” in this case defines that term. The items listed after “college costs” are similar in nature. Tuition, fees and books are common and necessary expenses associated with a college education. On its face, the agreement defines “college costs” as those expenses ordinarily and customarily associated with college which are paid directly to the education institution, or arise through institution requirements. The word “including,” which links “college costs” to “tuition, fees and books,” is an inclusive, rather than an exclusive, modifier. “Including” indicates that the term “college costs” includes but is not limited to the items listed. Therefore, the agreement speaks to college costs other than those enumerated, but which are similar in nature.
If the agreement is construed strictly against the party who prepared it, Darla, then the term “college costs” includes those costs which are ordinary, customary and necessary college expenses. For example, the term “college costs” includes the cost of on-campus meals and housing where the fees for such are paid directly to the college. The term “college costs” excludes the cost of off-campus meals and housing where the fees for such are not paid directly to the college.