Corbin v. Corbin

• Citation: 206 S.E.2d 898,157 W.Va. 967
• Decision Date: 16 July 1974
• Docket Number: No. 13426,13426
• Court: Supreme Court of West Virginia
• Parties: Laetitia Natalie CORBIN v. Howard J. CORBIN.

Page 898

206 S.E.2d 898

157 W.Va. 967

Laetitia Natalie CORBIN v. Howard J. CORBIN.

No. 13426.

Supreme Court of Appeals of West Virginia.

July 16, 1974.

Syllabus by the Court

1. Under W.Va.Code Ann. 48--2--16 (1969) which provides that in making an award of alimony a court shall take into consideration 'the financial needs of the parties, the earnings and earning ability of the husband and wife, the estate, real and personal, and the extent thereof as well as the income derived therefrom of both the husband and wife. . . . ' no specific weight is assigned to any one criterion, and the trial judge in his sound discretion may accord such weight to any or all of these criteria as he deems appropriate.

2. A court with domestic relations jurisdiction has the right to fix alimony in its final decree for a divorce, and the parties cannot by contract or otherwise deny a court of that prerogative.

3. In determining the effect of a property settlement agreement upon a subsequent decree for divorce, a distinction exists between those agreements which have been confirmed and ratified by the court, and those agreements which have been merged in the final divorce decree. Where an agreement has only been confirmed and ratified by the court in its decree, such confirmation and ratification have the effect merely of determining that the agreement is reasonable, that it was not obtained by fraud, coercion, or undue influence, and that it does not violate the public policy of this State; therefore, confirmation does not elevate a private contract between the parties to the status of a court judgment enforceable by civil contempt. Merger, however, makes the provisions of the property settlement agreement an integral part of the court decree and enforceable through the contempt procedures of the court granting the divorce; therefore, in the case of merger, the court retains jurisdiction to modify the terms of the decree.

4. Where an agreement between the parties has been merged into a decree the court granting the divorce retains jurisdiction to modify a decree for alimony or child support, and such power is not affected by the fact that such a decree for alimony or child support refers to, or is based upon, or even incorporates, an agreement entered into by the parties to the action.

5. Under W.Va.Code Ann. 2--3--1 (1974) where a court has awarded child support until the age of twenty-one by a decree entered before June 9, 1972, the court may modify such award by terminating support at age eighteen; however, such decision to modify the decree is within the sound discretion of the trial court, and where a court chooses to continue support until the age of twenty-one, its exercise of sound discretion will be affirmed on appeal.

Jenkins, Schaub & Fenstermaker, John E. Jenkins, Jr., and John F. Wood, Jr., Huntington, for appellant.

Campbell, Love, Woodroe & Kizer, S. Clark Woodroe, and John O. Kizer, Charleston, for appellee.

NEELY, Justice:

This is an appeal from a final order of the Circuit Court of Cabell County entered September 10, 1973 which affirmed in part and reversed in part a final order of the Domestic Relations Court of Cabell County entered on October 2, 1972 awarding the appellee alimony in the amount of $21,000 per year and child support for one female child in the amount of $6,500 per year.

The appellee, Laetitia Corbin, and the appellant, Howard J. Corbin, have been involved in protracted litigation concerning their domestic affairs since 1963 when Mrs. Corbin sued for a divorce which was awarded in the Domestic Relations Court of Cabell County in June 1963.

Mr. and Mrs. Corbin were married in 1953 in New York City and two children were born of their marriage, David Randolph Corbin in 1956 and Priscilla Anne Corbin in 1959. The parties separated in Huntington, West Virginia, in June 1962 and in January 1963 the parties entered into an agreement which was denominated a 'property settlement agreement' but which in fact constituted a complete separation agreement, covering far more than the mere division of their property. This case concerns the proper interpretation of that agreement and the affect of that agreement, if any, upon the subsequent order of the Domestic Relations Court of Cabell County which awarded Mrs. Corbin the divorce and incorporated the property settlement agreement into the divorce decree. The provisions of the agreement at issue on this appeal are paragraphs 4, 18, and 19 which provide as follows:

'4. Support of Wife. Husband shall pay to wife for her support and maintenance for the balance of her lifetime, or until her remarriage, or until the death of husband, which ever period shall be shorter, the sum of $5,773.20 per year in equal monthly installments of $481.10 each, due on or before the 5th day of each month, the first installment to be paid on the date of the execution of this agreement.

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'18. Subsequent Divorce. Husband and wife hereby covenant and agree that in the event any temporary or final judgment or decree of divorce or separation binding on husband and wife shall be entered in any action brought by either of them against the other, in any jurisdiction, such judgment or decree shall contain no provision for the support or maintenance of wife or the children contrary to the provisions of this agreement and that this agreement, unless otherwise required by the applicable law, may be incorporated in any such judgment or decree, by reference or otherwise, upon the request of either party But, notwithstanding such incorporation this agreement shall not be merged in any such temporary or final judgment or decree of divorce or separation between husband or wife, but, shall in all respects survive the same and be forever binding and conclusive upon husband and wife. (emphasis supplied by court)

'19. Partial Invalidity. In the event that all or any part of this agreement shall be invalid, such invalidity shall not invalidate the whole agreement but the remaining portions of the agreement shall continue to be valid and binding.'

Although paragraph 18 provides that the parties agree that no judgment or decree of divorce shall contain a provision for the support or maintenance of the wife or children contrary to the provisions of the agreement, and further provides that while the agreement may be incorporated into the decree, it is not to be merged in the decree, the final order of the Domestic Relations Court of Cabell County which awarded the divorce to Mrs. Corbin provided for alimony, support, and maintenance all denominated as such in the decree, and by specific language did merge the agreement into the decree. The relevant portions of the court's order provide as follows:

'IT IS FURTHER ADJUDGED, ORDERED AND DECREED that the Agreement bearing date the 2nd day of January, 1963, between Laetitia Natalie Corbin and Howard J. Corbin Is hereby approved and confirmed in its entirety and same is to be incorporated and to be made a part of this final Decree as if fully written herein, and each and every part thereof as the same pertains to the parties hereto, shall be enforceable by this Court. (emphasis supplied by court)

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'IT IS FURTHER ADJUDGED, ORDERED AND DECREED that the defendant, Howard J. Corbin, shall pay to Laetitia Natalie Corbin, for alimony, support and maintenance for the balance of her lifetime, or until her remarriage, or until the death of the defendant, Howard J. Corbin, whichever shall be shorter, the sum of $5,773.20 per year, in equal monthly installments of $481.10 each, the first of said payments due on or before the 5th day of July, 1963, and on the 5th day of each and every month thereafter.

'IT IS FURTHER ADJUDGED, ORDERED AND DECREED that the defendant, Howard J. Corbin, shall pay unto Laetitia Natalie Corbin, plaintiff, for the support and maintenance of their son, David Randolph Corbin, the sum of $1,800.00 annually, payable in equal monthly installments of $150.00, each, due on or before the 5th day of each and every month, which payments shall continue until he becomes twenty-one (21) years of age or until his marriage or until his death, whichever event shall first occur, the first installment due and payable on or before the 5th day of July, 1963. The payments under this shall cease during the college school year if the son is receiving the payments to be made under paragraph 8 of the Agreement, provided that during the months of the college recess the monthly payments shall be made directly to the son.

'IT IS FURTHER ADJUDGED, ORDERED AND DECREED that the defendant, Howard J. Corbin, shall pay to Laetitia Natalie Corbin, plaintiff, for the support and maintenance of their daughter, Priscilla Anne Corbin, the sum of $1,800.00 annually, payable in equal monthly installments of $150.00 each, until Priscilla Anne Corbin becomes twenty-one (21) years of age or until her marriage or until her death, whichever event shall first occur, the first of said installments shall be due and payable on or before the 5th day of July, 1963, and on or before the 5th day of each and every month thereafter. The payments shall cease during the college school year if the said Priscilla Anne Corbin is receiving the payments to be made under paragraph 8 of the Agreement, provided that during the months of the college school recess payments shall be made directly to the daughter.'

From 1963 until 1968 the parties fought about visitation rights and each party objected to the way in which the other party treated the children. In 1964 Mr. Corbin filed a petition in the Domestic Relations Court of Cabell County praying that the June 1963 decree be modified to release him from any further payment of alimony to Mrs. Corbin and further praying for transfer of the custody of the two children to him. During the pendency of the 1964 Cabell County proceeding, Mrs. Corbin took her side of the case to the Connecticut courts. Finally in 1966 Judg...