Capell v. Capell

• Decision Date: 14 March 1935
• Citation: 178 S.E. 894
• Parties: CAPELL. v. CAPELL.
• Court: Virginia Supreme Court

178 S.E. 894

CAPELL.

v.CAPELL.

Supreme Court of Appeals of Virginia.

March 14, 1935.

Error to Hustings Court of Portsmouth.

Divorce suit by Georgia Lee Capell against W. H. Capell, in which Georgia Lee Capell obtained a decree of divorce which provided for alimony and suit money. To review a decree adjudging defendant W. H. Capell to be in contempt for failure to pay alimony, he brings error.

Affirmed.

See, also, 178 S. E. 897.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

James G. Martin, of Norfolk, and Tom E. Gilman, of Portsmouth, for plaintiff in error.

R. B. Albertson, of Portsmouth, and William G. Maupin, of Norfolk, for defendant in error.

HOLT, Justice.

On February 25, 1924, Mrs Capell obtained a decree of divorce from her husband on the ground of adultery. That decree makes these provisions for alimony and suit money:

"And the said Court doth further adjudge, order and decree that the said W. H. Capell shall pay to the said Georgia Lee Capell monthly, on the 15th day of each month, so long as they both shall live, or until further ordered by this court, the sum of One Hundred and Twenty-five Dollars ($125.00) for the maintenance of the said Georgia Lee Capell and her daughter, Margaret. And it is ordered that the said W. H. Capell shall pay unto the said Georgia Lee Capell her costs by her in this behalf expended, including a fee of $75.00 as counsel's fee for conducting this suit. And it is further ordered that neither of the parties shall marry again within a period of six months. This cause may now be removed from the docket."

Afterward, on March 1, 1930, Mr. and Mrs. Capell entered into this agreement:

"This agreement made and entered into this first day of March, 1930, between W. H. Capell of the first part, and Georgia Capell, party of the second part:

"Whereas the said W. H. Capell, by decree of the Court of Hustings of the City of Portsmouth, is now directed to pay to the said Georgia Capell, his former wife, the sum of One Hundred and Twenty-five Dollars ($125.00) per month for the support of herself and her daughter, and whereas, her said daughter has married since the date of the said decree, and it is desired to modify the arrangement for the support of the said Georgia Capell alone;

"Now therefore, it is hereby agreed that the said W. H. Capell from the date of this contract shall pay to the said Georgia Capell for her support in satisfaction of the terms of the said decree the sum of Fifty Dollars ($50.00) each month, beginning on the first day of March, 1930, for the term of two years, and thereafter until the death of either party the sum of Forty-five Dollars ($45.00) per month, in like monthly instalments. The said Georgia Capell hereby acknowledges receipt of first instalment of Fifty Dollars on thisdate, and agrees to accept the terms of this instrument in full satisfaction. All of the said instalments shall be mailed by said W. H. Capell to the said Georgia Capell at her present residence 953 North Street, Portsmouth, Virginia, or to such future address as she shall indicate by writing.

"Witness the following signatures and seals. "W. H. Capell [Seal.]

"Mrs. Georgia Capell [Seal.]."

The installment of $45 promised for March, 1934, was not paid. Application was made for a rule against the defendant to show cause why he should not be punished for his failure to pay. It came on to be heard in due course. He said that he was earning $240 a month as an engineer of the Seaboard Air Line Railroad, that he was married again, and had one child by his present wife. By way of defense he contends that the decree for alimony was superseded by the contract of March 1, 1930, and that his present obligation to pay rests on contract alone. The defendant was adjudged to be in contempt, and from that judgment he has appealed.

We are to determine if the provisions for support in the decree of February 25, 1924, are superseded by the contract afterward made, and, if so, had these parties power to make such a contract in pais.

Neither contention is sound. Its declared purpose was to modify the arrangements theretofore made, and to pay a smaller sum in satisfaction of the monthly payment of $125 with which Mr. Capell was assessed in the decree of divorce.

Supersede means to suspend, annul, overrule, set aside, make void, obviate, neutralize, while to modify is to shape, alter, change, vary, give new form to. Soule's Dictionary of Synonyms. Of course there were changes. Otherwise there would have been no occasion for these parties to undertake to contract at all. They modified the arrangement theretofore made and in satisfaction of the $125 agreed to pay $45 a month "until the death of either party, " while the $125 a month was to be paid "so long as they both shall live." The daughter was married and independent; support from the father was no longer necessary, and in this changed condition a reduction of the assessment first made seemed fair and reasonable. But there is no reason to believe that the wife intended to surrender her power to collect the smaller sum which she had agreed to take. She was willing to vary, but not to make void, the obligation which the court had put upon her husband. An intention to do more should be made plain.

Let us assume that there was such an intention. The payments decreed were to be made "so long as they both shall live or until the further order of this court." That is to say, the court retained jurisdiction and the power to modify its decree as to alimony to meet the changed condition of the parties, and this it had a right to do. Brinn v. Brinn, 147 Va. 277, 137 S. E. 503. The case is entirely different from that in which the parties, pending a final decree, enter into an agreement respecting their property rights which the court adopts and approves. Barnes v. American Fertilizer Co., 144 Va. 692, 130 S. E. 902.

A decree for alimony is something more than an order for the payment of money. A husband who has wronged his wife must continue to contribute to her support. A decree for alimony "is an order compelling a husband to support his wife, and this is a public as well as a marital duty--a moral as well as a legal obligation." Branch v. Branch, 144 Va. 244, 132 S. E. 303, 305.

"It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. * * * And in Recht v. Kelly, 82 111. 147 , * * * the general principle is stated to be that 'laws enacted from...