Barrows v. Barows, Unpublished Decision (12-29-2004)
This text of 2004 Ohio 7163 (Barrows v. Barows, Unpublished Decision (12-29-2004)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
{¶ 3} While Appellant's first appeal was under consideration, she filed a second motion for modification of support. Appellant moved a second time for modification on the basis that her income had been drastically reduced when she lost her job and was forced to take a lower paying job. In addition, Appellant again alleged that Appellee's cohabitation with Ms. Ross warranted a reduction in support. The trial court agreed that Appellant's loss of income warranted a reduction in spousal support and her obligation was reduced from $500.00 per month to $300.00 per month. However, the trial court again found that Appellee's cohabitation did not amount to a change of circumstances sufficient to warrant an additional reduction in support. Appellant timely appealed this decision, raising two assignments of error. As these assignments are interrelated, they will be addressed together.
{¶ 4} In both her assignments of error, Appellant contends that the trial court abused its discretion when it failed to acknowledge a change of circumstances based upon Appellee's current living arrangement with Beth Ross and erred in failing to terminate her support obligation. This Court finds that the trial court lacked jurisdiction to rule on Appellant's motion.
{¶ 5} We begin by noting that a "lower court retains all jurisdiction not inconsistent with that of the appellate court to review, affirm, modify or reverse the final order, judgment or decree from which the appeal has been perfected." In re Kurtzhalz (1943),
{¶ 6} As such, the trial court lacked jurisdiction to make a determination as to whether Appellees' cohabitation warranted a modification in support. Therefore, the trial court lacked jurisdiction to rule on Appellant's motion to modify support. Accordingly, Appellant's assignments of error are dismissed as moot.
Judgment vacated, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Exceptions.
Carr, P.J. Whitmore, J. Concur.
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2004 Ohio 7163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrows-v-barows-unpublished-decision-12-29-2004-ohioctapp-2004.