Colom v. Colom

389 N.E.2d 856, 58 Ohio St. 2d 245, 12 Ohio Op. 3d 242, 1979 Ohio LEXIS 423

• Court: Ohio Supreme Court
• Decided: May 30, 1979
• Docket: No. 78-1286
• Status: Published

Opinions

Holmes, J.

The sole issue to be decided by this court is whether enforcement proceedings for the collection of an arrearage from an order of temporary alimony may be brought after the entry of a final decree of divorce where the arrearage for the temporary alimony has not been mentioned by (ho (rial court in the decision or decree, or where there has not been a separate judgment entered ■upon any such arrearage.

The intermediate appellate courts in Ohio differ on this issue. The Court of Appeals for Cuyahoga County below determined that no such separate action upon .the. arrearage survives the divorce decree. However, the Court of Appeals for Summit County, for example, differs in the •case of Yonally v. Yonally, supra. Paragraph two of the syllabus in that case states as follows:

“The merger of a temporary alimony order in the final decree of divorce does not extinguish the right of the former spouse to collect the arrearage that accrued under the temporary alimony order before the merger occurred.”

Courts in other states seemingly are split upon this issue. See Annotation 154 A. L. R. 530.

Although there is less than unanimity within this court on this question, the majority feel that the better ride to be followed by the courts of Ohio is that which tends to eliminate delayed actions upon old or “stale” claims. It is our view that not only should the interim orders be merged within the final judgment, but the right of action or enforcement of such interim orders should not be extended beyond the final decree unless specifically reduced to judgment or referred to within the decree.

It is our view that the final judgment should replace all that has transpired before it. This extension of the merger doctrine to terminate any continuing rights acquired within temporary orders will not necessarily work a hardship upon the beneficiary of such temporary orders in that a protection may be provided for the continuance of the effect of such orders. First, the arrearage may be reduced to a judgment. This, of course, would be a separate judgment not affected by the subsequent judgment on the merits in the domestic relations case. Second, the moving party may seek to have the arrearages included as an additional portion of the final judgment. In the event that the trial court refuses to include the arrearages in the final order, the moving party would have a' right to appeal that issue to the Court of Appeals. Third, if there is allegedly an oversight or error upon the part of the trial court in not including the arrearage within the final decree, there may well be presented a proper instance for the invoking of a motion for relief from judgment pursuant to Civ. R. 60(B).

Again, we believe that the extension of the merger doctrine to extinguish the right of further action on interlocutory orders that have not been included within the decree or reduced to judgment serves the salutary purpose of consolidating the adjudicated rights and duties of the parties into a single document, and prevents the resurrection of the interlocutory matters after the decree. Unless later successfully challenged, it may be reasonably presumed that the trial court in entering the final decree took into consideration all that has transpired in the matter between the parties prior to the decree.

Based upon the foregoing, the judgment of the Court of Appeals is hereby affirmed.

Judgment affirmed.

Celbbrezze, C. J., Herbert and P. Brown, JJ., concur. W. BROwn, Sweeney and Looker, J.J., dissent.