Dixon v. Pugh, 911738

• Decision Date: 06 November 1992
• Docket Number: No. 911738,911738
• Citation: 244 Va. 539,423 S.E.2d 169
• Parties: Dwight A. DIXON v. Marjorie Hagood Dixon PUGH. Record
• Court: Virginia Supreme Court

Page 169

423 S.E.2d 169

244 Va. 539

Dwight A. DIXON v. Marjorie Hagood Dixon PUGH.

Record No. 911738.

Supreme Court of Virginia.

Nov. 6, 1992.

Dannie R. Sutton, Jr., for appellant.

William W. Bennett, Jr. (Bennett and Rand, on brief), for appellee.

Linda G. Chaplain, amicus curiae.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, LACY and HASSELL, JJ., and HARRISON, Retired Justice.

HASSELL, Justice.

The narrow issue we consider in this divorce proceeding is whether the chancellor may amend a final decree nunc pro tunc and thereby make a lump sum award of spousal support, even though the original decree did not contain a clear and explicit reservation of jurisdiction to modify the award of spousal support.

The relevant facts are not in dispute. In 1981, appellee, then Marjorie Hagood Weston Dixon, filed a bill of complaint requesting a divorce from her husband, Dwight A. Dixon, on the ground of desertion. She also requested an award of spousal support.

On February 5, 1982, the chancellor granted Pugh a divorce and ordered Dixon to pay $200 per month in spousal support, $1,000 per month in child support, attorneys fees, and costs. A transcript of a hearing conducted before the entry of this decree indicates that the trial court intended to make a temporary spousal support award and, on a later date, to make a lump sum award to Pugh. ¹ The final decree, however, did not clearly and explicitly reserve the court's jurisdiction to modify the decree in the future.

In 1985, Pugh sought to modify the child and spousal support awards based upon a change in circumstances and to preserve the estate of the husband. Her motion for modification of the support awards was referred to a commissioner in chancery. Following numerous ore tenus hearings, Dixon filed a motion to dismiss the proceeding, alleging that the court lacked jurisdiction to give Pugh a lump sum spousal support award because the 1982 final decree did not expressly reserve her right to seek such an award in the future. The chancellor denied the motion and amended the 1982 final decree nunc pro tunc to include the following sentence:

It is further ORDERED that the matters of permanent alimony and award of lump sum for plaintiff [Pugh], if any, are hereby expressly and explicitly reserved by this Court for future consideration by the Court; and that this cause be and hereby is continued for such purposes.

Subsequently, the commissioner submitted his report recommending that Pugh receive a lump sum award in the amount of $130,000, $500 per month for child support, $20,000 in attorneys fees, and 80% of the costs. The commissioner's report was approved by the chancellor over Dixon's objection. The Court of Appeals affirmed the judgment of the trial court in an unpublished opinion. We awarded Dixon an appeal, having determined that the Court of Appeals' decision involves a matter of significant precedential value. Code § 17-116.07.

Dixon argues that the trial court lacked jurisdiction to modify, vacate, or suspend the 1982 decree. He contends that the 1982 decree became a final order 21 days after the date of entry because the trial court did not "expressly reserve the right to revise alimony provisions to meet changed conditions." Pugh argues that when the 1982 decree was entered, the chancellor inadvertently failed to include an explicit reservation of jurisdiction in the decree and the court is entitled to correct the omission by the entry of a decree nunc pro tunc, thus retaining jurisdiction to modify the award of spousal support.

We have repeatedly held that a court may not modify an award of spousal support in a divorce decree in the absence of a statute or a clear and explicit reservation of jurisdiction to modify the spousal support provision. In Losyk v. Losyk, 212 Va. 220, 183 S.E.2d 135 (1971), we stated:

Authority to modify the alimony provisions of a final divorce decree must be found either in the language of the decree or in an applicable statute.

In the absence of statute a court may expressly reserve the right to revise alimony provisions to meet changed conditions. But the reservation must be clear and explicit. Brinn v. Brinn, 147 Va. 277, 137 S.E. 503 (1927); Capell v. Capell, 164 Va. 45, 49, 178 S.E. 894, 896 (1935). See also Perry v. Perry, 202 Va 849, 853, 120 S.E.2d 385, 388 (1961), where it was held that in a final divorce decree that was silent as to alimony the language "with leave to either party to have the same reinstated for good cause shown" was not a sufficient reservation of power in the court to reinstate the cause to award alimony.

212 Va. at 222, 183 S.E.2d at 137.

We have followed this principle, without exception, in the narrow area of spousal support provisions in divorce decrees. See Duke v. Duke, 239 Va. 501, 504, 391 S.E.2d 77, 79 (1990); Thomasson v. Thomasson, 225 Va. 394, 397 n. 1, 302 S.E.2d 63, 65 n. 1 (1983); Perry v. Perry, 202 Va. 849, 852-53, 120 S.E.2d 385, 388 (1961); Golderos v. Golderos, 169 Va. 496, 504, 194 S.E. 706, 708 (1938). The rationale underlying this rule is straightforward. A reservation of jurisdiction should not be uncertain or left in doubt. It is in the interest of the litigants and courts that when the parties have been heard fully, litigation should terminate, and if a litigant claims a right to a modification of spousal support in the future, such reservation of jurisdiction should be abundantly clear. See Brinn v. Brinn, 147 Va. at 288-89, 137 S.E. at 506.

Pugh concedes, as she must, that our precedent...