Golderos v. Golderos

• Decision Date: 13 January 1938
• Citation: 169 Va. 496
• Parties: NORA JONES GOLDEROS v. RUDESINDO GOLDEROS, JR.
• Court: Virginia Supreme Court

Page 496

169 Va. 496

NORA JONES GOLDEROS v. RUDESINDO GOLDEROS, JR.

Supreme Court of Virginia, Richmond.

January 13, 1938.

Present, Campbell, C.J., and Holt, Gregory, Browning, Eggleston and Spratley, JJ.

1. DIVORCE — Modification of Decree — Power of Court — Final Decree without Reservation — Case at Bar. — In the instant case a final decree of divorce was entered providing for the payment of alimony to complainant in the sum of $75.00 per month, without any reservation for future modification. Three years and seven months after the final decree, the trial court, pursuant to complainant's consent as expressed in a paper writing, entered a decree in the original cause undertaking to reduce the amount of alimony to $50.00 per month. Approximately two years thereafter the court, over complainant's objection, entered another decree undertaking to reduce the amount of alimony to $25.00 a month, and some months later entered still another decree reciting that the court having failed to reinstate the cause upon the docket it was thereby reinstated, and proceeded to undertake to ratify and confirm all decrees theretofore entered in the cause, on the ground that the cause was reopened by consent of the parties. Complainant contended that after the original final decree, the trial court had no jurisdiction or power to reinstate the original case on the docket, nor to alter or modify the terms thereof, and that such jurisdiction could not be conferred by consent of the parties.

Held: That the decree of divorce, which became final upon the adjournment of court for that term and from which no appeal was taken, was a final adjudication, not only as to the matters actually determined, but as to every other matter which the parties ought to have litigated as incidental thereto, and there being at that time no statute conferring the power to modify or alter such decree, there was left to the court only the right to enforce obedience to it.

2. ALIMONY — Modification of Decree — Power of Court — Final Decree without Reservation — Case at Bar. — In the instant case a final decree of divorce was entered providing for the payment of alimony to complainant in the sum of $75.00 per month, without any reservation for future modification. Three years and seven months after the final decree, the trial court, pursuant to complainant's consent as expressed in a paper writing, entered a decree in the original cause undertaking to reduce the amount of alimony to $50.00 per month. Approximately two years thereafter the court, over complainant's objection, entered another decree undertaking to reduce the amount of alimony to $25.00 a month, and some months later entered still another decree reciting that the court having failed to reinstate the cause upon the the docket it was thereby reinstated, and proceeded to undertake to ratify and confirm all decrees theretofore entered in the cause, on the ground that the cause was reopened by consent of the parties. Complainant contended that after the original final decree, the trial court had no jurisdiction or power to reinstate the original case on the docket, nor to alter or modify the terms thereof, and that such jurisdiction could not be conferred by consent of the parties.

Held: That the power to which the award of alimony was incidental ceased to exist when the decree of divorce became final, and as the cause could not be reopened for the purpose of modifying the character of the divorce granted, such jurisdiction could not be reinstated to secure power to perform an incidental purpose.

3. DIVORCE — Modification of Decree — Power of Court — After Adjournment of Term — Consent of Parties. — In a divorce suit, a court of equity has no power to correct, alter or change the record where there has been a final adjudication, after the adjournment of the term, and the fact that the parties consent thereto gives the court no such authority, as consent cannot confer jurisdiction.

4. ALIMONY — Modification of Decree — Consent of Parties — Consent to Reduction of Alimony — Case at Bar. — In the instant case a final decree of divorce was entered providing for the payment of alimony to complainant in the sum of $75.00 per month, without any reservation for future modification. Over three years later complainant signed a paper purporting to give legal consent to the reduction of the alimony from $75.00 to $50.00 per month, and thereafter, three years and seven months after the final decree, the trial court entered a decree in the original cause undertaking to reduce the amount of alimony to $50.00 per month. Approximately two years thereafter the court, over complainant's objection, entered another decree undertaking to reduce the amount of alimony to $25.00 a month, and some months later entered still another decree reciting that the court having failed to reinstate the cause upon the docket it was thereby reinstated, and proceeded to undertake to ratify and confirm all decrees theretofore entered in the cause, on the ground that the cause was reopened by consent of the parties. Complainant contended that after the original final decree, the trial court had no jurisdiction or power to reinstate the original case on the docket, nor to alter or modify the terms thereof, and that such jurisdiction could not be conferred by consent of the parties.

Held: That the agreement to a reduction of the alimony did not constitute consent of complainant to the reopening of the cause, but, at most, could be offered only on the question of release of defendant for his failure to pay the allotted amount, in enforcement proceedings therefor.

5. ALIMONY — Modification of Decree — Consent of Parties — Omission of Affirmative Showing of Consent Cannot Be Remedied by Nunc Pro Tunc Order — Case at Bar. — In the instant case a final decree of divorce was entered providing for the payment of alimony to complainant in the sum of $75.00 per month, without any reservation for future modification. Three years and seven months after the final decree, the trial court, pursuant to complainant's consent as expressed in a paper writing, entered a decree in the original cause undertaking to reduce the amount of alimony to $50.00 per month. Approximately two years thereafter the court, over complainant's objection, entered another decree undertaking to reduce the amount of alimony to $25.00 a month, and some months later entered still another decree reciting that the court having failed to reinstate the cause upon the docket it was thereby reinstated, and proceeded to undertake to ratify and confirm all decrees theretofore entered in the cause, on the ground that the cause was reopened by consent of the parties. Complainant contended that after the original final decree, the trial court had no jurisdiction or power to reinstate the original case on the docket, nor to alter or modify the terms thereof, and that such jurisdiction could not be conferred by consent of the parties.

Held: That the decrees subsequent to the final decree of divorce failed to show affirmatively on the face thereof that they were entered by consent, and the omission of this requirement could not be supplied by a nunc pro tunc order.

Appeal from decrees of the Circuit Court of the city of Richmond, modifying a final decree of divorce. Hon. Julien Gunn, judge presiding.

The opinion states the case.

Clay Crenshaw and Marvin E. Nuckols, Jr., for the appellant.

Cutchins & Cutchins, for the appellee.

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

The question in this case involves the power of a court of equity to subsequently modify and change the alimony provisions of a final decree of divorce from the bonds of matrimony, where there were no children to be provided for, and no reservation was made for future changes or modification. There is no question of fraud, mistake, or clerical error involved.

Mrs. Nora Jones Golderos originally instituted the suit for divorce against her husband, Rudesindo Golderos, Jr., on the grounds of adultery. The cause was regularly matured and heard.

A final decree was entered therein by the trial court on October 9, 1930, dissolving the bonds of matrimony theretofore existing between the parties. Under Virginia Code, section 5111, as it existed in 1930, the decree provided for the payment of alimony by Dr. Golderos in the sum of seventy-five dollars per month to Mrs. Golderos until she should remarry, without any reservation for future changes or modification. The decree was concluded in the following language: "And nothing further remaining to be done in this suit, it is further ordered that it shall be stricken from the docket and placed among the ended causes of this court." The back of this decree bore the personal...