Foster v. Foster

• Decision Date: 10 September 1953
• Citation: 39 A.L.R.2d 1397,195 Va. 102,77 S.E.2d 471
• Court: Virginia Supreme Court
• Parties: , 39 A.L.R.2d 1397 RHEA D. FOSTER v. GERTRUDE D. FOSTER, EXECUTRIX, &C

Page 471

77 S.E.2d 471

195 Va. 102, 39 A.L.R.2d 1397

RHEA D. FOSTER v. GERTRUDE D. FOSTER, EXECUTRIX, &C.

Supreme Court of Appeals of Virginia

September 10, 1953.

James G. Martin & Sons, for the plaintiff in error.

Samuel Goldblatt and Paul M. Lipkin, for the defendant in error.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

Rhea D. Foster filed a motion for judgment in the Circuit Court of the City of Norfolk against Gertrude D. Foster, executrix of the estate of Hugh Foster, deceased. The object of the suit was the recovery of alimony allegedly due the plaintiff under a decree of that court, entered on February 12, 1930, by which the plaintiff had been granted a divorce a vinculo matrimonii from Hugh Foster.

The decree contained the following provision: 'The court doth further adjudge, order and decree that the defendant (Hugh Foster) pay to the plaintiff $125.00 each month for alimony until her death or remarriage, in either of which events said payments shall cease and no longer be a charge against defendant.'

Hugh Foster died in January, 1952, and all alimony due to the time of his death had been paid. The motion for judgment alleged that no payments had been made since Foster's death, and judgment was sought in the sum of $1,125, representing nine monthly payments from January, 1952, through September, 1952, the date of the suit.

The executrix filed a demurrer asserting that the said motion for judgment showed that the deceased, Hugh Foster, had paid plaintiff what was due her through December, 1951, and died in January, 1952, which death caused further alimony to cease.

The Circuit Court of the City of Norfolk sustained the demurrer and dismissed the suit, to which ruling we granted the plaintiff a writ of error.

While three assignments of error are relied upon by the plaintiff, she admits that they involve the same question, that is, whether or not the payments decreed continued after the death of Hugh Foster until altered by decree, or by death or remarriage of petitioner. Plaintiff contends that 'said decree intended the payments should continue until her death or remarriage, even if said Hugh Foster sooner died.'

The executrix, on the other hand, contends that, in the absence of a stipulation or contract, payments of alimony decreed in connection with an absolute divorce terminate upon the husband's death. She further contends that the language of the decree terminating alimony upon plaintiff's death or remarriage was mere surplusage, and that no inference is to be drawn therefrom that the court intended by implication to extend the payments beyond the death of the husband.

It will be observed that the instant case is not one involving an agreement between husband and wife whereby the husband binds himself to make his wife monthly payments so long as she may live, and continuing after his death. While a husband and wife cannot lawfully agree to a divorce, it is well settled that a husband may bind himself to pay his wife agreed sums, payable at intervals, extending beyond his death. And such a stipulation or contract may be embodied in the divorce decree if equitable and approved by the court. Va. Code, 1950, § 20-109; Storey v. Storey, 125 Ill. 608, 18 N.E. 329, 8 Am.S.R. 417, 1 L.R.A. 320; Wilson v. Hinman, 182 N.Y. 408, 75 N.E. 236, 2 L.R.A. (N.S.) 232; Stratton v. Stratton, 77 Maine 373, 52 Am.Rep. 779; 2 Nelson on Divorce and Annulment (2nd ed.), § 14.63, note 33.

We are here concerned with alimony provisions contained in a decree for divorce a vinculo matrimonii, where the sole liability of the husband to his former wife springs from the decree. The case must be distinguished from that of temporary alimony or support money decreed to be paid during the pendency of the suit, or of an a mensa divorce, where the decree merely enforces the duty still existing on the part of the husband to support his wife.

Statutes authorizing the Virginia courts to grant a mensa divorces are declaratory of the common law. Divorces a vinculo, on the other hand, are wholly creatures of statute. Eaton v. Davis, 176 Va. 330, 337, 338, 10 S.E. (2d) 893.

The basic question to be answered in the instant case is whether a court of chancery in Virginia, in entering a decree for a divorce a vinculo matrimonii, has the power, in the absence of any stipulation or contract between the parties, to extend alimony payments beyond the death of the husband. Our conclusion is that the court has no such power.

Section 20-107, Code, 1950, provides, inter alia: 'Upon decreeing the dissolution of a marriage, * * * from the bond of matrimony * * * 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, * * *.'

Section 20-108 provides that upon petition the court may from time to time change its decree regarding the custody and support of children.

Section 20-109 provides that 'upon petition of either party the court may increase, decrease or cause to cease, any alimony that may thereafter accrue, * * * as the circumstances may make proper; provided, however, if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed with the pleadings or depositions, then no decree or order directing the payment of alimony, suit money, or counsel fee shall be entered except in accordance with that stipulation or contract unless such party raise objection thereto prior to entry of the decree.'

Section 20-110 provides: 'If any person to whom alimony has been awarded shall thereafter marry, such alimony shall cease as of the date of such marriage.'

These statutory provisions, §§ 20-107 through 20-110, supra, were contained in the code of 1919 as section 5111. It will be observed that the statutes nowhere provide that alimony may extend beyond the joint lives of the parties, in the absence of a stipulation or contract between them.

It was said by Judge Staples in Francis v. Francis, 31 Gratt. (72 va.) 283, 290, 'alimony is a proportion of the husband's estate allowed to the wife for her maintenance and support during the period of their separation, and only continues with their joint lives. It ceases with the death of either of the parties. 2 Bishop on Marriage and Divorce, § 350.'

Chapter CV, page 850, Code of 1873, dealing with 'Divorces', was in force and effect at the time of the decision in the Francis Case. Neither this chapter nor any statute since enacted by the legislature of Virginia (and there have been many amendments and new sections added since 1873) has expressly given our courts discretion to extend alimony payments after the death of the husband.

Section 20-110, Code of 1950, supra, provides, as aforesaid, that marriage stops the payment of alimony. Until the enactment of this statute it was not clear whether or not such payments were stopped by marriage. It is significant that the Code contains no analogous section providing that death stops alimony. The Francis Case decided in unmistakable language that alimony does not extend beyond the 'joint lives' of the parties, and the legislature has made no attempt to change this established rule.

In 2 Bishop on Marriage, Divorce and Separation (1891), § 858, p. 349, it is said: 'The death of either of the parties dissolves the marriage. Therefore as already stated, there can be no common law alimony when either the husband or wife is dead. But in some of the States there are statutes permitting it during the wife's life, and so creating a liability on the deceased husband's estate. ' Citing Smythe v. Banks, 73 Ga. 303; Storey v. Storey, supra; Cf. Berry v. Berry, 208 Ga. 285, 66 S.E. (2d) 336 (1951).

In section 846 of the same volume (2 Bishop on Marriage, etc.), this is said: 'By the unwritten rule, alimony cannot be ordered for the term of the wife's life, so whatever the form of the decree, it ends when the husband dies; because it is a maintenance to her, while his duty to maintain her ceases at his death.'

In American Jurisprudence it is stated: 'According to the weight of authority, a decree, granted in connection with an absolute divorce, for the regular periodical payments of alimony to the wife for her maintenance and support is terminated upon the husband's death, in the absence, at least, of some stipulation in the order which would require payments after his death.' 17 Am. Jur., Divorce and Separation, § 608, p. 473. (See Va. Code, 1950, § 20-109, supra.)

'The right to receive alimony, and the corresponding duty to pay it, being personal, are generally considered as terminating on the death of either of the parties, where no statute to the contrary exists and the judgment or decree is silent on the subject. * * * ' 27 C.J.S., Divorce, § 240(b), p. 999.

In Eaton v. Davis, supra (176 Va., at page 340), it is said:

'The material thing which is supplanted by alimony is simply the right of the wife during coverture to support and maintenance * * *. The right * * * is not a property right. * * * It is uncertain in duration, lasting possibly a day, a month, or a year or more. It ceases entirely upon the death of either husband or wife. So much for the wife's right of support during coverture.

'What happens to this right of support when the marriage is dissolved by a final divorce decree? As an incident to the divorce the court substitutes for this support what is termed alimony. * * * They (the payments) are uncertain in duration and cease upon the death of either party.'

'The jurisdiction of divorce causes is purely statutory, and the court possesses no powers in such cases involving matters of property beyond those conferred by statute, * * *.' 2 Bishop on Marriage, etc., supra, § 1231; Barnes v. American Fertilizer Co., 144 Va. 692, 707, 130 S.E. 902; Ring v. Ring, 185 Va. 269, 277, 38 S.E. (2d) 471, 475, 165 A.L.R. 1237, 1242.

'* * * (We) think it clear, certainly in the absence of agreement,...