Losyk v. Losyk
| Citation | 212 Va. 220,183 S.E.2d 135 |
| Court | Supreme Court of Virginia |
| Decision Date | 01 September 1971 |
| Parties | George LOSYK v. Margaret Emma LOSYK. |
Richard R. Nageotte, Woodbridge, for appellant.
Quinlan H. Hancock, Alexandria, for appellee.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
The question presented by this appeal is whether the court had authority to modify, by subsequent order, the alimony provision of the final decree which terminated the marriage between Margaret Emma Losyk and George Losyk.
By decree entered November 26, 1968, after extended and bitter litigation, Mrs. Losyk was granted a divorce from the bond matrimony from her husband on the grounds of desertion and cruelty. Permanent custody of their infant daughter, born May 21, 1967, was awarded to the mother with certain 'temporary custody' and visitation rights reserved to the father. The alimony and child support provisions of the decree were set forth as follows:
'* * * and it is further
ADJUDGED, ORDERED and DECREED that the Defendant shall pay to the Complainant for her own support and maintenance the sum of $100.00 per month, beginning on the 3rd day of November, 1968, and continuing $100.00 on the 3rd day of each and every month thereafter until October 3, 1969, at which time this temporary alimony payment shall be terminated; Defendant shall also pay to the Complainant for the maintenance and support of the said minor child the sum of $200.00 per month, beginning on the 3rd day of November, 1968, and continuing, $200.00 on the 3rd day of each and every month thereafter, until said child is legally emancipated, or until further order of this or another Court of competent jurisdiction, whichever shall first occur. * * *'
Payments were made by Losyk in compliance with the terms of the decree. On October 3, 1969, Mrs. Losyk, by new counsel, filed a petition asking that a be made and that an increase in child support payments be ordered. Losyk filed a demurrer and motion to dismiss on the ground that the court had no jurisdiction to modify the alimony provision of the final decree. He also filed a petition asking that child support payments be reduced and that his visitation rights be enlarged.
The demurrer and motion to dismiss were overruled, and a hearing was held on the petitions of the parties. By letter opinion dated January 26, 1970, the chancellor held that the final divorce decree, which had been entered by another chancellor, was not intended to be final as to alimony. From the evidence adduced before him he found 'a continuing need of alimony and ability to pay'. Accordingly, he entered an order on January 26, 1970, directing Losyk to pay Mrs. Losyk the sum of $100 per month beginning November 3, 1969 and continuing until she 'remarries or dies, or until further order of this Court * * *'. The decree also continued the support payments for the child while providing more liberal visitation rights to the father.
Losyk excepted to the action of the court in its entirety, and we granted him an appeal. Of his assignments of error we are concerned only with those which challenge the authority of the court to reopen the final decree on the question of alimony. 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...
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