McLoughlin v. McLoughlin

• Citation: 177 S.E.2d 781,211 Va. 365
• Parties: Howard Thomas McLOUGHLIN v. Margery Caudle McLOUGHLIN.
• Decision Date: 30 November 1970
• Court: Virginia Supreme Court

Page 781

177 S.E.2d 781

211 Va. 365

Howard Thomas McLOUGHLIN v. Margery Caudle McLOUGHLIN.

Supreme Court of Appeals of Virginia.

Nov. 30, 1970.

Herman A. Sacks, Filmore E. Rose, Norfolk (Sacks, Sacks & Tavss, Norfolk, on the brief), for appellant.

George H. Gray, Norfolk (Outland & Gray, Norfolk, on the brief), for appellee.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.

SNEAD, Chief Justice.

Howard Thomas McLoughlin filed a petition praying that the divorce suit in which he was awarded an A mensa et thoro decree, later merged into a decree A vinculo matrimonii, be reinstated on the docket and that the court adjudicate that his former wife, Margery C. McLoughlin (now Margery Cardone), was not entitled to any support from him beginning August 16, 1968, the date of her remarriage. By a decree entered January 10, 1969, the chancellor ordered the cause reinstated on the docket and after hearing argument dismissed the petition on the ground that the court 'does not have jurisdiction in this divorce suit to either enforce compliance with the (property settlement) contract between the parties or to alter its terms'. McLoughlin appeals from this decree.

On April 14, 1967, Mrs. McLoughlin filed a bill of complaint against her husband seeking a divorce A mensa et thoro on the ground of constructive desertion. On April 27 McLoughlin filed his answer and cross-bill praying for a divorce A vinculo matrimonii on the ground of adultery or in the alternative a divorce A mensa et thoro on the ground of desertion. While the divorce suit was pending the parties entered into a property settlement agreement, dated June 29, 1967. The pertinent portions of this contract, which was filed as an exhibit with the depositions, follow:

'3. * * * Husband agrees to pay the wife One Hundred ($100.00) Dollars per month for the support and maintenance of the wife.

'9. * * * In further consideration of the aforesaid, the wife does hereby waive, release and discharge the husband from any and all further claims for alimony, temporary and permanent.

'13. The parties hereto do mutually agree that in the event a divorce decree is entered in the aforementioned divorce suit, this stipulation and agreement shall be submitted to the Court for approval, affirmation and ratification by the Court and incorporated in any decree of divorce which may be entered in this cause.'

By a decree entered on October 12, 1967, McLoughlin was granted a divorce A mensa et thoro on his cross-bill. The decree approved, ratified and confirmed the agreement between the parties and incorporated it by reference. Also, the court

'* * * ORDERED ADJUDGED and DECREED that the said defendant (Husband) shall pay to complainant (Wife) * * * $100.00 per month pursuant to the agreement between the parties for her support and maintenance.'

Upon petition of McLoughlin, the A mensa et thoro decree was merged into a decree A vinculo matrimonii on May 7, 1968. In it the court

'* * * ORDERED that the written stipulation set forth in the agreement between the parties dated June 29, 1967, and introduced into evidence in this cause, be and the same is ratified and confirmed by the Court and every part thereof incorporated and made a part of this decree by this reference.'

McLoughlin contends that the chancellor erred in dismissing his petition for lack of jurisdiction to grant the relief sought, and in refusing to rule that he was relieved of the obligation to support Mrs. Cardone, his former wife, because she had remarried and was living with her present husband. He argues that since the A mensa et thoro decree ordered him to pay his wife for her support and maintenance according to the terms of the contract this decree was one for payment of alimony, and that being a decree for alimony the support payments would cease upon her remarriage. Code § 20--110 (Repl. vol. 1960).

The contract was entitled, 'STIPULATION OF AGREEMENT IN ACCORDANCE WITH TITLE 20, PARAGRAPH 109, OF THE CODE OF VIRGINIA OF 1950, AS AMENDED'. Generally, this section of the Code authorizes the court, upon petition of either party, to increase, decrease, or cause to cease any alimony that may thereafter accrue. However, there is a proviso in § 20--109, which reads: '* * * (I)f 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.'

The contract, filed with the depositions, was executed by both McLoughlin and his wife. Neither party raised any objection thereto prior to the entry of the decree.

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