Kenneth C. Umstead v. Virginia K. Umstead, etc.

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

KENNETH C. UMSTEAD MEMORANDUM OPINION * v. Record No. 2763-95-1 PER CURIAM JUNE 25, 1996 VIRGINIA K. UMSTEAD, N/K/A VIRGINIA K. JERNIGAN

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE E. Preston Grissom, Judge

(Gregory S. Duncan, on briefs), for appellant. (Donald G. Wise; Melvin J. Radin; Wise & Wise, on brief), for appellee.

Kenneth C. Umstead (husband) appeals the decision of the

circuit court denying his request to terminate the spousal

support paid to Virginia K. Umstead (wife). Husband argues that

the court lacked subject matter jurisdiction when it modified his

spousal support obligation in 1991. Husband also argues that the

court exceeded its statutory authority and that Code § 20-109

prohibited any modification of the spousal support provision of

the final divorce decree. Upon reviewing the record and briefs

of the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court.

Rule 5A:27.

Prior to the entry of the final divorce decree, the parties

entered into an agreement under which husband agreed to pay wife * Pursuant to Code § 17-116.010 this opinion is not designated for publication. $700 per month in spousal support. The agreement provided that

"[n]o modification or waiver of any of the terms of this

Agreement shall be valid unless in writing and executed with the

same formality as this Agreement." The trial court entered the

parties' final decree of divorce on April 27, 1989. The decree

ratified, confirmed and incorporated the agreement.

By motion filed October 7, 1991, husband sought to reopen

the matter. A consent decree was entered on October 7, 1991.

The consent decree stated the following: CAME the parties and represented to the Court that they have reached agreement on an amendment of the [husband's] obligation for spousal support as provided for in the parties' Stipulation and Property Settlement Agreement . . . incorporated in this Court's Final Divorce Decree dated April 27, 1989.

WHEREFORE, for reasons satisfactory to the Court, it is hereby ADJUDGED and DECREED that the [husband] pay to the [wife] monthly alimony equal to one-half the gross amount of his military retired/retainer check, and that his obligation will be subject to all costs of living or other adjustments during this obligation of support. Payments will continue until the death of the first of the parties to die and will not terminate upon the remarriage of the [wife].

Spousal support was awarded in the final decree. Cf. Dixon

v. Pugh, 244 Va. 539, 542-43, 423 S.E.2d 169, 171 (1992) (nunc

pro tunc order cannot be used to create jurisdictional fiction).

The parties' agreement, incorporated into the final decree,

expressly authorized modification of its terms. Husband has not

alleged that the consent order failed to satisfy the agreement's

2 requirements for modification.

Furthermore, Code § 20-109 authorizes modification of

spousal support "[u]pon petition of either party . . . as the

circumstances may make proper." Husband petitioned for

modification of support, based upon the parties' new agreement.

The modification requested in 1991 therefore satisfied both the

provisions of Code § 20-109 and the provisions of the final

decree. To the extent that husband now seeks to appeal the 1991

consent decree on the ground that the circumstances did not

justify modification, his arguments are untimely. Rule 1:1.

Similarly, his assertion that the modification did not "increase,

decrease or terminate" spousal support is contradicted by the

record. Any allegation that the modification was itself

erroneous is also untimely.

Finally, while the legislative presumption is that spousal

support will terminate upon remarriage, parties may enter into an

agreement to pay support beyond remarriage, and that agreement

will be enforced as long as the parties' intention is clearly set

out in the agreement. "[T]o avoid the operation of the statutes

terminating spousal support upon the remarriage of the obligee

spouse, a separation agreement 'must contain clear and express

language evincing the parties' intent that spousal support will

continue after remarriage; otherwise, remarriage terminates the

obligation.'" Gayler v. Gayler, 20 Va. App. 83, 85, 455 S.E.2d

3 278, 279 (1995) (quoting Miller v. Miller, 14 Va. App. 192,

196-97, 415 S.E.2d 861, 864 (1992)). The consent decree

expressly provided that spousal support would continue after

wife's remarriage. Therefore, wife's remarriage did not

terminate husband's obligation.

Accordingly, the decision of the circuit court is summarily

affirmed. However, wife's motion for relief pursuant to Code

§ 8.01-271.1 is denied. Affirmed.