Eaton v. Davis

• Citation: 10 S.E.2d. 893
• Court: Virginia Supreme Court
• Decision Date: 14 October 1940
• Parties: EATON. v. DAVIS.

10 S.E.2d. 893

EATON.

v.DAVIS.

Supreme Court of Appeals of Virginia.

Oct. 14, 1940.

Rehearing Denied Dec. 6, 1940.

Appeal from Circuit Court, Rockingham County; H. W. Bertram, Judge.

Suit by J. S. Eaton against Henrietta V. Davis for modification of an award of alimony. From a decree dismissing the bill of complaint, J. S. Eaton appeals.

Reversed and remanded, with directions.

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

George S. Harnsberger, of Harrisonburg, for appellant.

Ethel Irwin Lineweaver, of Harrisonburg, for appellee.

GREGORY, Justice.

On July 25, 1929, a final decree was entered by the lower court awarding Henrietta Davis (formerly Henrietta Eaton) $50 per month, as alimony. That portion of the decree is as follows: " * * * and it is, therefore, Adjudged, Ordered, and Decreed that the said J. S. Eaton pay unto the said Henrietta V. Davis, as alimony, but not in any event for a longer period than their joint lives, for the maintenance of Henrietta V. Davis, the sum of fifty dollars per month on the 1st day of each month; * * *."

Eaton had moved the court to retain the cause upon the docket and to reserve in the decree the right thereafter to modify the award and its payment as future conditions might require, but the court overruled his motion and the cause was stricken from the docket. An appeal from the decree was sought by Eaton but it was refused by this court. Thus the decree for the alimony became a finality.

In August, 1938, Eaton filed a bill of complaint in which he prayed that the award of alimony be reduced because he had suffered both a financial and physical decline since the decree was entered. He alleges that he is so broken in health that he is unable to perform any work and that he is now in destitute circumstances and unable to pay the alimony.

Eaton grounds his bill of complaint upon the amendment of 1938, Acts 1938, c. 418, to Code, § 5111. Specifically he alleges that the language of the amendment of 1938 confers upon him the right to have the decree reopened and the amount of the award reduced to meet his changed financial condition.

Henrietta Davis filed her joint demurrer and answer to the bill. The principal ground of demurrer is that the legislature was without power to enact the retroactive portion of the amendment of 1938 and that the finality of the decree could not be set at naught by subsequent legislative act, and further that vested rights had accrued by reason of the decree which the legislature was powerless to invade.

The answer simply denied the allegations of the bill.

The court sustained the demurrer and dismissed the bill. In an elaborate written opinion the court decided that the amendment of 1938 was not constitutional insofar as it purported to affect the final decree for alimony, because it antedated the effective date of the amendment.

Code, § 5111, as amended in 1938, reads 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, and upon decreeing that neither party is entitled to a divorce the court may make such further decree as it shall deem expedient concerning the estate and the 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; and upon petition of either party may increase, decrease, or cause to cease, any alimony that may thereafter accrue whether the same has been heretofore or hereafter awarded, as the circumstances may make proper. Upon the entry of a decree of divorce from the bond of matrimony, all contingent rights of either consort in the real and personal property of the other then existing, or thereafter acquired, shall be extinguished."

The language italicized was placed in the statute by the amendment of 1938. It will immediately be observed that the amend ment in express terms is both retrospective and prospective. It affects "any alimony that may thereafter accrue whether the same has been heretofore or hereafter awarded, as the circumstances may make proper."

If the amendment is constitutional, then Eaton has alleged in his bill sufficient facts to entitle him to the relief he sought and, of course, upon well-recognized principles we must consider the facts alleged as true upon the hearing on the demurrer. Thus we have a case in which alimony of $50 a month was awarded against Eaton in 1929, who, according to his allegation, is no longer able to pay it. Prior to the amendment of 1938, no action could have been taken to reduce the alimony because there was no such reserved right expressed in the decree. Brinn v. Brinn, 147 Va. 277, 137 S.E. 503. In other words, unless he has the right to apply for a reduction in alimony by virtue of the amendment, then he has no such right at all.

The question to be decided in this case is whether the General Assembly may enact legislation permitting a prior final decree for alimony payable monthly for the joint lives of the parties, and containing no reservation, to be reopened and the question of alimony again inquired into and future unaccrued payments increased or decreased to meet the changed conditions of the parties.

The weight of authority is to the effect that a final decree for monthly alimony cannot be reopened. That authority is generally based on the proposition that the woman has a vested right in the monthly payments whether accrued or not, and that a statute permitting a decree to be reopened and allowing a reduction in the future monthly payments or permitting them to cease altogether to meet the changed conditions of the parties would amount to an invasion of constitutional rights and would be void.

The leading case in this country in which a statute allowing the readjustment of alimony which had been finally determined by a final prior decree was held unconstitutional is Livingston v. Livingston, 173 N.Y. 377, 66 N.E. 123, 124, 61 L.R.A. 800, 93 Am.St.Rep. 600. There the wife was granted an absolute divorce and she was awarded alimony payable annually No reservation was expressed in the decree to the effect that the cause might be reinstated and the question of ali-mony again considered. At the time of the decree there was no statutory provision allowing a modification of alimony. Subsequently the legislature enacted a statute permitting the court to "annul, vary or modify" decrees for alimony "whether heretofore or hereafter rendered." Later the husband filed a petition asking the court to reduce the amount of alimony which he had been ordered to pay in the former final decree on the ground that his financial condition was so weakened that he could not pay it.

The court held that the former wife had a vested interest in the judgment for alimony; that it was property and that the legislature was powerless subsequently to enact legislation that would permit the final judgment to be reopened and the amount of alimony reduced. The act was held unconstitutional on that ground. In characterizing the nature of her interest in the judgment for alimony the court said: "That right, as a vested interest, is property, which the legislature is powerless to devest her of. If the interest is, as it is claimed, an expectant one, in the sense that the obligation of the defendant was a continuing one to pay alimony in the future, nevertheless the interest was one fixed by the judgment, and was not a mere contingency. It was not a capacity to acquire a right to the payment of money. It was a right fixed by the judgment, and hence vested in the plaintiff."

The New York court was divided in its view. Three of its seven members concluded that the judgment for alimony was not a final matter that could never be reopened regardless of changed conditions and that the very nature of alimony made it imperative that it be susceptible to increase or decrease as future circumstances would demand.

The Livingston case has been considered a leading one on the subject and has been followed by the highest courts of other states. Fuller v. Fuller, 49 R.I. 45, 139 A. 662; Blethen v. Blethen, 177 Wash. 431, 32 P.2d 543; 97 A.L.R. 1188; 17 Am.Jur. Divorce and Separation, § 643.

In the absence of a reservation in the decree or a statute permitting a final decree for alimony to be reopened to meet the needs of changed conditions by increasing or decreasing future payments of alimony, the courts of this country are in conflict as to whether such a decree may be reopened. See 71 A.L.R. 726.

In Virginia, prior to the amendment of Code, § 5111, in 1938, a final decree for alimony could not be reopened unless there was an express reservation for that purpose in the decree. Brinn v. Brinn, supra; Golderos v. Golderos, 169 Va. 496, 194 S.E. 706.

There can be no doubt that the legislature possesses the power to enact retrospective legislation, and generally it is valid if the legislative intent is plainly manifest that the statute is to have a retroactive effect and if the statute does not have the effect of impairing the obligation of a contract and is not destructive of vested rights. The amendment of 1938 in express terms is retrospective. It is to apply to "any alimony that may thereafter accrue whether the same has been heretofore or hereafter awarded, as the circumstances may make proper." This is conclusive that the legislature clearly intended the amendment to be retrospective.

It certainly cannot be said that to give the amendment retroactive effect in the case at bar would impair the obligation of a contract. There was no contract...