Dienhart v. Dienhart
| Citation | 210 Va. 101,168 S.E.2d 279 |
| Parties | Edythe Baker DIENHART v. Walter Argyle DIENHART, Jr. |
| Decision Date | 16 June 1969 |
| Court | Virginia Supreme Court |
George F. Darden, Jr., Virginia Beach, for appellant.
No brief or argument for appellee.
Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON, and HARRISON, JJ.
The only issue on this appeal is whether the proviso in Code § 20--109 1 precluded the trial court from modifying a previous award of alimony.
On August 27, 1965 Edythe Baker Dienhart and her husband, Walter Argyle Dienhart, Jr., executed a separation contract settling their property rights and providing for the payment by Mr. Dienhart of $125 per month 'alimony' to Mrs. Dienhart.
Mrs. Dienhart then brought this suit seeking a divorce from her husband and an award of temporary and permanent alimony. A copy of the separation contract was filed with Mrs. Dienhart's depositions.
By a decree entered September 28, 1966, the court granted Mrs. Dienhart a divorce from bed and board on the ground of her husband's desertion. The decree provided:
'(B)y way of alimony respondent (Mr. Dienhart) shall pay to complainant (Mrs. Dienhart) the sum of One Hundred and Twenty-five Dollars ($125.00) per month; * * * said payments for support, education and maintenance and for alimony shall begin immediately and shall be payable at least one-half on or before the fifth of each month and the balance on or before the twentieth of each month; * * * insofar as property rights are concerned the written agreement of August 27, 1965, between the parties hereto, is hereby ratified and confirmed.'
By a decree entered October 13, 1966, the court
'ORDERED, ADJUDGED and DECREED that the decree of divorce from bed and board heretofore entered on September 28, 1966, be merged into a decree of divorce from the bonds of matrimony; and that the provisions of the aforesaid decree of September 28, 1966, with respect to payments to be made by defendant (Mr. Dienhart) to complianant (Mrs. Dienhart), and affirming the settlement agreement entered into by the parties on August 27, 1965, be and the same hereby are continued in full force and effect.'
On October 26, 1967, Mr. Dienhart filed a petition reciting a change of circumstances and praying that the court modify the September 28, 1966 and October 13, 1966 decrees by eliminating the requirement that he pay alimony to Mrs. Dienhart. After hearing evidence, the court on December 5, 1967 entered a decree, from which this appeal was prosecuted, eliminating the alimony provided for in the decree of September 28, 1966.
The proviso in Code § 20--109 (n. 1 Supra), which inhibits the usual power of the court to modify an award of alimony, controls this case. The settlement contract between Mr. and Mrs. Dienhart was signed by him and filed with her depositions, and he made no objection to the entry of the September 28, 1966 decree or the October 13, 1966 decree. The December 5, 1967 decree, which eliminated alimony, was an 'order directing the payment of alimony' within the meaning of the proviso in Code § 20--109. And the elimination of alimony under the December 5, 1967 decree...
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Newman v. Newman
...from any judicial modification "except in accordance with that stipulation or contract" between the parties); Dienhart v. Dienhart, 210 Va. 101, 102, 168 S.E.2d 279, 281 (1969) (noting that Code § 20-109 "inhibits the usual power of the court to modify" court ordered spousal support payment......
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Seehorn v. Seehorn
...The reason for the exception referred to in Harris and Thomas becomes clear upon an examination of the holding in Dienhart v. Dienhart, 210 Va. 101, 168 S.E.2d 279 (1969). There the terms of a contract between the parties providing that Mr. Dienhart pay support of $125 per month to his wife......
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Knodel v. Knodel
... ... In Dienhart v. Dienhart, supra, 210 Va. 101, 168 S.E.2d 279, the Virginia Supreme Court of Appeals [14 Cal.3d 763] held that Virginia Code section 20--109 ... ...
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Glenn v. Commissioner, Docket No. 583-70 SC.
...of the obligation of "support and maintenance" imposed upon him by the other ambiguous provisions of paragraph 4. Dienhart v. Dienhart, 210 Va. 101, 168 S. E. 2d 279 (1969); Martin v. Martin, 205 Va. 181, 135 S. E. 2d 815 (1964); Durrett v. Durrett, 204 Va. 59, 129 S. E. 2d 50 (1963); Heneb......