
    Folz v. Folz.
    (Decided February 15, 1932.)
    
      
      Mr. Charles F. Hornberger, for plaintiff in error.
    
      Mr. Roy Manogue and Mr. James Lewis Homer, for defendant in error.
   Hamilton, J.

This error proceeding grows out of an alimony decree in favor of Emma Folz, plaintiff in error here, against Frank W. Folz, defendant in error.

The decree was entered the 17th day of July, 1923, in which the court, among other things, made an award of alimony of $100 per month in favor of the wife, Emma Folz.

On January 25, 1931, the husband, Frank W. Folz, filed a motion for modification of that decree. The case was heard on the motion by the trial court, resulting in a judgment modifying the decree by reducing the payments from $100 per month to $50 per month, and the court further found that there were arrearages of alimony under the former.order, which were ordered paid up.

Emma Folz prosecutes error to that judgment of modification, and Frank W. Folz files a cross-petition in error, both seeking a reversal of the judgment.

The first point of error stressed by Emma Folz, plaintiff in error, is that the court committed, error in refusing to admit evidence offered by her, tending to prove that the decree for alimony of July 17,1923, was entered by agreement of the parties, and, being so made, is not subject to modification, the agreement having been carried into the decree.

It is the law that an agreement between the parties for alimony at the time of the divorce, if carried into the decree, is not subject to modification.

It is also the law that oral evidence is permissible to prove such an agreement and that the agreement was carried into the decree. This was decided in the case of Marklein v. Marklein, 35 C. D., 520, 29 O. C. A., 232, a Hamilton County Court of Appeals case decided February 11, 1918. In the Marhlein case, the trial court had excluded evidence offered to prove the alimony was by agreement, and carried into the decree. The court in the Marklein case, speaking through Judge G-orman, said: “We are of the opinion that the court below erred in refusing to permit counsel for Flora Marklein, plaintiff in error, to show that the amount of the alimony was agreed upon between herself and her husband.”

The court, in the Marklein case, cited Olney v. Watts, 43 Ohio St., 499, 3 N. E., 354, in which such evidence was held to be admissible.

Reverting to the decree entered on the 17th day of July, 1923, which may be referred to as the original decree, we find this language: “Said sum of $100.00 per month to be continued until the re-marriage of the said plaintiff, or death, or until the further order of this Court.”

While, as heretofore stated, evidence would be admissible to prove the agreement and that that agreement was carried into the decree, the proof would have to show that the agreement was to pay $100 per month “until the further order of this Court.”

The phrase “until the further order of this Court” is a part of the decree, and must be considered a part of the agreement. The situation then is that the decree, if by agreement, reserves to the court this right to make further order in a proper proceeding. Any other conclusion would impeach the decree, which may not be done on a motion to modify.

There was, therefore, no prejudicial error in excluding the evidence offered by Emma Folz, present plaintiff in error.

It is claimed on behalf of the plaintiff in error that the court abused its discretion on reducing the amount of alimony from $100 to $50 per month under the proof adduced by her.

It is claimed by defendant in error in the cross-petition in error that the court abused its discretion in not reducing the alimony payments further, claiming that the evidence required a further reduction.

There was evidence offered from which the court could make the reduction, and there was evidence justifying the $50 per month allowance.

The amount and the value of the property owned by the defendant in error was in dispute. The evidence disclosed sufficient change of conditions to warrant the court in modifying the decree.

Upon the whole, we are of opinion that the court did not abuse its discretion in modifying the decree as it did.

Some questions are argued relative to the power of the court to make the orders it did in the original decree concerning dower rights. These questions are not pertinent in this proceeding and are, therefore, not considered.

Judgment affirmed.

Eoss, P. J., and Cushing, J., concur.  