Thomas v. Thomas

222 S.E.2d 557, 216 Va. 741, 1976 Va. LEXIS 196

• Court: Supreme Court of Virginia
• Decided: March 5, 1976
• Docket: Record 750847
• Status: Published

Opinions

Poff, J.,

delivered the opinion of the court.

Barbara A. Thomas was awarded a divorce a mensa et thoro from her husband, Edwin Lamar Thomas, on the grounds of desertion. The decree provided “that the Stipulation Agreement entered into by the parties is hereby ratified and affirmed and made a part of this Decree.” Under that agreement, the husband promised to pay the wife $200 per month “as alimony” and to convey the marital home to her. The parties mutually covenanted to release “all curtesy and/or dower interests”. They expressly agreed that their contract would be “submitted to the Court. . . and made a part of any decree which may be entered in this matter.”

Upon the husband’s petition, the chancellor entered a decree on December 27, 1972, which provided “that the decree of divorce a mensa et thoro ... be and hereby is merged into a decree of divorce a vinculo matrimonii”. In that decree, the chancellor also found that the stipulation agreement “appears fair and equitable” and ordered “that said agreement be ... incorporated into and made a part of this Decree insofar as it relates to the real property rights created by this marriage.” The record reflects no objection to the stipulation agreement by either party before entry of the two decrees.

The husband made alimony payments regularly until December, 1974. When he missed the payment for that month, the wife petitioned for an order to show cause why he should not be punished for contempt of court. At the contempt hearing, the husband asserted that the a vincula decree did not obligate him to pay alimony because that decree incorporated the stipulation agreement only insofar as it related to real property rights. By final order entered March 27, 1975, the chancellor found that “the stipulation agreement . . . was ratified and affirmed and made a part” of the a memo, decree and “[therefore . . . that nothwithstanding the provisions of the decree a vinculo matrimonii, the Defendant remains to be obligated for the payment of alimony as provided in the said stipulation agreement.” Upon these findings, he ordered the husband to pay the wife $200 per month “as alimony as provided in the Stipulation Agreement . . . [and] all arrearages acruing [sic] for his failure to comply with the Stipulation Agreement.”

Citing Perry v. Perry, 202 Va. 849, 120 S.E.2d 385 (1961), the husband argues that the chancellor had no jurisdiction to enter the March 27, 1975, order granting alimony, because he says the a vinculo decree excluded alimony and contained no reservation of power to re-open the case and modify the decree.

The dispositive question, then, is whether the a vinculo decree obligated the husband to pay alimony.

Under Code § 20-109 (Cum. Supp. 1972), the courts are authorized to modify alimony obligations prospectively. Their authority, however, is expressly limited:

“. . . if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed with the pleadings or depositions, then no decree or order directing the payment of alimony,

* suit money, or counsel fee shall be entered except in accordance with that stipulation or contract unless such party raise objection thereto prior to entry of the decree. . .

When a stipulation agreement is filed and no objection is raised, “§ 20-109 restricts the court’s jurisdiction over awarding ‘alimony, suit money, or counsel fee’ to the terms of the contract.” McLoughlin v. McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970). A decree which, under such circumstances, expressly adjudicates an elimination of alimony is an “ ‘order directing the payment of alimony’ within the meaning of the proviso in Code § 20-109”. Dienhart v. Dienhart, 210 Va. 101, 103, 168 S.E.2d 279, 281 (1969).

Here, the a vinculo decree provided that the parties’ contract, which had been filed with the depositions and not objected to, be incorporated only “insofar as it relates to . . . real property rights”. We are of opinion that this provision was an adjudication eliminating the alimony to which the parties had agreed; that it was an adjudication within the intendment of the statutory proviso; and that it was, therefore, an adjudication beyond the jurisdiction of the trial court.

In light of the rule in Perry, we consider whether the a vinculo decree obligated the husband to pay alimony.

Where, as here, an a mensa decree is merged into an a vinculo decree, the latter subsumes the former; the a mema decree loses its separate identity, and all of its provisions not lawfully modified by the trial court assume the integrated identity of the a vinculo decree. The husband contends that the provision in the a mensa decree incorporating the stipulation agreement was modified in the a vinculo decree to exclude the obligation to pay alimony. But, as we have said, under the statutory proviso the chancellor was without jurisdiction to make such a modification.

We hold that the a vinculo decree obligated the husband to pay alimony and that the March 27, 1975, order did not violate the rule in Perry.

Affirmed.

By the 1975 amendment, “alimony” was changed to “support and maintenance for the spouse” Ch. 644, Acts of Assembly (1975).