limiting the scope of Wolfe
How later courts described this case
- limiting the scope of Wolfe
Written by the judges who cited it.
Distinguished
Distinguished by In re Adams, 45 Ohio St. 3d 219 (1989)
Appellee contends that McClain, supra, is distinguishable because it concerned modification rather than termination of alimony.
The opinion
Ford, J.,
dissenting. Wolfe v. Wolfe (1976), 46 Ohio St. 2d 399 [ 75 O.O.2d 474 ], held that the courts will reserve the right to modify an alimony award where that award was granted pursuant to an agreement of the parties in a divorce. The Wolfe decision was based essentially on the concept that the trial court has a continuing responsibility to ensure that equity and fairness be maintained between the parties. Query, isn’t the “continuing modification jurisdiction” of Wolfe a synonymous designation for the inherent equitable jurisdiction of a trial court?
“It is self-evident that a separation agreement, which purports to set a fair level of alimony for sustenance, as well as divide and distribute the property of the parties and settle their affairs, is not necessarily continually fair and equitable thereafter. We may assume that it is fair at the moment of its execution, and that it continues to be fair at the time of divorce if the parties offer it for inclusion and merger into the decree. At that point, all that can be said is that it sets a fair and equitable ‘initial level’ of obligations.
“Such initially fair agreements may be rendered manifestly oppressive in countless situations, such as where the custodian of the children fails to provide proper care and guidance, or where the receiver of alimony makes no attempt at self-support or where the economic situation of either or both of the parties drastically changes. The holding in this case, that a court has continuing modification jurisdiction over alimony for sustenance awards, is to assure that such awards are continually just.” Id. at 418-419 .
This rationale is equally applicable in a case such as the present where an alimony award has been granted pursuant to an agreement between the parties in a dissolution. Any change in R.C. 3105.65(B) as amended *292 cannot be interpreted as a revocation of the court’s inherent equity-powers. Therefore, I would not limit the Wolfe holding, and would extend it to an alimony award made pursuant to an agreement in a dissolution. On this basis, the present case should be affirmed.