Brinn v. Brinn

• Citation: 137 S.E. 503
• Court: Virginia Supreme Court
• Decision Date: 17 March 1927
• Parties: BRINN. v. BRINN.

137 S.E. 503

BRINN.

v.BRINN.

Supreme Court of Appeals of Virginia.

March 17, 1927.

Appeal from Law and Chancery Court of City of Norfolk.

Suit for divorce by Mary M. Brinn against George C Brinn. On petition of defendant for modification of decree for plaintiff as respects alimony. From a decree dismissing the petition, defendant appeals. Affirmed.

N. T. Green, of Norfolk, for appellant.

George C. Cabell, of Portsmouth, for appellee.

BURKS, J. It is admitted that the following statement, taken from the petition for appeal, correctly sets forth the facts:

"By a decree entered on the 17th of March, 1925, by the court of law and chancery of the city of Norfolk, in the suit for divorce and alimony of Mary M. Brinn (the appellee here) against George C. Brinn (the appellant here), the said Mary M. Brinn was granted and awarded a divorce a vinculo matrimonii from the said George C. Brinn, and the latter was directed to pay her as alimony, which was decreed to be a lien on his real estate, the sum of $1,500 per annum, in monthly installments of $125 each, until the death of said Mary M. Brinn. At the foot of said decree and as a part thereof is the following language:

" 'And nothing further remaining to be done in this suit, it is further ordered that the same be removed from the docket, with leave reserved to the parties, or either of them, to make application to this court for such further orders as are authorized by law.'

"On August 4, 1925, your petitioner, said George C. Brinn, filed in said suit his petition praying for a modification of said decree by decreasing the amount of the alimony to be paid thereunder, and by the insertion in said decree of some provision by which he might be enabled to sell any real property which was lessening in value, and which he is now prevented from selling because of the lien thereon for alimony created by said decree, with some additional provision, in the event of any such sales, for securing the payment of any alimony. Said petition set forth, as reasons for the relief prayed for by it, the changed conditions in the financial state of your petitioner as follows: That the real property owned by him at the time of said decree had decreased greatly in value since said time, and the income accruing therefrom had greatly lessened, and that petitioner had already sustained heavy and severe losses caused by his inability to sell any such real property, due to the fact that the alimony had been made a lien thereon; that the grocery business of petitioner, in which he was engaged at the time of the entry of said decree and in which he was still engaged, had ceased since said time to be profitable mainly because of the establishment of chain stores in business of that kind which had come into competitionwith his business and diverted therefrom his former customers; that petitioner knew no other business than the grocery business, in which he had been engaged all his life, and that he was unfit and incompetent to conduct any other kind of business; that since the entry of said decree petitioner had remarried and by such marriage his expenses had been somewhat increased, and that, although he lived as economically as possible, he could not pay to said Mary M. Brinn the amount of alimony provided by said decree, and support himself and wife, without incurring debts which would ultimately absorb his entire property; that said Mary M. Brinn was much older than petitioner and unaccustomed to an income of anything like $125 per month or living in a style or manner that demanded or required an income of any such amount, and that she now lives with one of her adult children by a former husband, and no such amount as $125 per month was needful or necessary for her support; and he asked the court to determine the true present value of the real estate and other property owned by him and the income derivable therefrom, and also his present income, and act in the premises as to equity was meet, " etc.

"Notice of the filing of said petition was duly given to said Mary M. Brinn, and she appeared and demurred thereto on the several grounds set forth in her demurrer as the same appear in the record. Shortly stated, those grounds were that the decree above mentioned was a final decree, over which the trial court had no power and which could not be modified or changed, and that, as that decree was referred to and made a part of the petition, it appeared therefrom that the court had no jurisdiction or power to alter or modify the same, and for that reason the demurrer should be sustained. The trial court took this view of the matter, and on the 29th day of October, 1925, entered the decree herein complained of, and sought to be reviewed and reversed, whereby it sustained said demurrer and dismissed said petition of your petitioner."

Upon this state of facts, certain questions of law arise which have been argued before us, and which we are asked to decide.

1. Does the Virginia statute authorize the reopening of a final decree for divorce a vinculo, for the purpose of changing the amount of alimony fixed by such decree, when there are no children to be provided for?

This question must be answered in the negative.

Section 5111 of the Code is as follows:

"Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further decree as it shall deem expedient concerning the estate and maintenance of the parties, or either of them, and the care, custody, and maintenance of their minor children, and may determine with which of the parents the children, or any of them, shall remain; and the court may, from time to time afterwards, on petition of either of the parents, revise and alter such decree concerning the care, custody, and maintenance of the children, and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require."

The latter part of the section, relating to what may be done by the court "afterwards, " plainly applies only to alterations "concerning the care, custody and maintenance of the children, " and the expression of the power to revise and alter the decree in such case is an exclusion of the power in all other cases. No power is conferred by the section to revise or alter the decree for alimony, where there are no children whose "care, custody and maintenance" is to be provided for.

2. In the absence of such a statute and of any reservation in the decree, has a court of equity the power to modify a final decree awarding a divorce from the bond of matrimony, and decreeing alimony to be paid in monthly installments?

On this question the authorities are not in harmony, but the weight of authority and the better reasoning, we think, denies the power.

In Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, L. R. A. 1917F, 721, it is said:

"The question, May decrees in this class of cases be modified? seems to carry its own answer. The status to which the power to award alimony is incident having by judicial mandate ceased to exist, the court having exercised all of the power in the premises that it possessed, there being no continuing relationship of parent and child to which the power to modify may be referred, the alimony in question involving the right of the wife only, the judgment or decree by its terms purporting to be final and conclusive upon the question, and there being no statute conferring upon the court the power to modify, there is no other source of authority to which we may look. The answer is scientifically and logically irresistible that such power does not exist. We must disabuse our minds of the thought that there is any peculiar mystery attaching to decrees of divorce and alimony merely because they are such. * * * It is elementary that an adjudication by a court having jurisdiction of the subject-matter and of the parties is final and conclusive not only as to the matters actually determined, but as to every other matter which the parties ought to have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. Consequently when the question of alimony is in fact actually litigated and finally determined in the divorce action, as it is in this class of cases, a judgment or decree in the action operates as res judicata upon the question of alimony. We therefore confidently assert that it is sustained both in principle and by the great weight of authority that, where permanent alimony is awarded as incidental to the granting of an absolute divorce, and there are no minor children of the parties, and the court does not reserve to itself the right to thereafter exercise an unexhausted portion of its power, but actually exhausts its jurisdiction at one time, and there is no statute conferring upon the court the power to modify or alter its decrees in respect to the allowance of alimony to meet new conditions thereafter transpiring, and the time for appealor review has expired, and the period limited by law within which judgments may be modified on motion or petition has elapsed, and the judgment is not attacked on the ground of fraud or mistake, the court has absolutely no jurisdiction to change its decree, but possesses only the right to enforce obedience to it."

These statements are...