¶1 dissenting. I must respectfully dissent from the position reached by the majority in Ellen’s third assignment of error. It is my considered opinion, as will be discussed more fully below, that the appellant’s motion for attorney fees should have been granted.
¶2 The majority relies on Cassaro v. Cassaro (1976), 50 Ohio App. 2d 368 [4 O.O.3d 320], to support the contention that the decision to award attorney fees and the amount thereof are within the discretion of the trial court. However, this applies only during divorce proceedings. See Cassaro, supra, and Swanson v. Swanson (1976), 48 Ohio App. 2d 85 [2 O.O.3d 65], If the case sub judice had been a divorce proceeding, then I would be in agreement with the majority.
¶3 In contrast, the case at bar involved a dissolution. Therefore, the separation agreement provides the proper procedure to follow with regard to attorney fees. Since a trial court does not have jurisdiction to modify periodic alimony payments contained in a dissolution of marriage decree, it seems logical to extend that lack of jurisdiction to the matter of attorney fees within this dissolution decree absent fraud or duress.
¶4 The majority attempts to create an analogy by renaming the dissolution decree a contract and then applying federal contract law. However, both federal cases cited, although applying Ohio law, involved contracts between corporations for either computer equipment (AMF Inc. v. Computer Automation, Inc. [S.D. Ohio 1983], 573 F. Supp. 924) or chattel paper (Driggs v. Credit Alliance Corp. [N.D. Ohio 1984], 591 F. Supp. 1221). Neither case can be used realistically to draw an analogy to proceedings held involving a dissolution *6 agreement. Furthermore, assuming, arguendo, we do not distinguish between a divorce and a dissolution, the majority’s contract analogy is still incorrect. In Wolfe v. Wolfe (1976), 46 Ohio St. 2d 399 [75 O.O.2d 474], the Ohio Supreme Court stated in paragraph four of its syllabus:
“A separation agreement of the parties loses its nature as a contract the moment it is adopted by the court and incorporated into a decree of divorce. (Law v. Law, 64 Ohio St. 369; Newman v. Newman, 161 Ohio St. 247 [53 O.O. 135], and Mozden v. Mozden, 162 Ohio St. 169 [55 O.O. 4], modified.)”
¶5 Therefore, since a dissolution agreement is also adopted by the court, it would be logical to assume that if it were a contract, it too would lose its nature as a contract the moment it is adopted by the court.
¶6 Accordingly, appellant’s third assignment of error is well-taken.
¶7 Judgment should be reversed and remanded to determine attorney fees.