Newton v. Newton
| Decision Date | 06 March 1961 |
| Docket Number | No. 5184,5184 |
| Citation | 118 S.E.2d 656,202 Va. 515 |
| Court | Virginia Supreme Court |
| Parties | WALTER JUDSON NEWTON v. MARGARET LILLIAN WATTS NEWTON. Record |
Henry M. Schwan (Fine, Fine, Legum, Weinberg & Schwan, on brief), for the appellant.
Thomas R. McNamara (Williams, Cocke, Worrell & Kelly, on brief), for the appellee.
On December 27, 1956, the Circuit Court of the city of Norfolk entered a decree granting Walter Judson Newton a divorce a vinculo from Margaret Lillian Watts Newton on the ground of desertion. The decree approved a written agreement executed by the parties which provided, among other things, that the custody of their infant son and daughter be awarded to the wife and that the husband make periodic payments of specified amounts to the wife for the maintenance and support of the children so long as she had custody of them.
On October 28, 1959, the wife filed a petition alleging that the husband was in arrears in the required payments and praying that he be compelled to make them. The husband filed an answer denying that he was in arrears and denying that his former wife was entitled to the relief prayed for by her, because, he said, in violation of the provisions of the divorce decree she had refused him the right of visitation from their daughter. He alleged that he had 'mistakenly and inadvertently made overpayments' to his former wife to the extent of $1,050, and that he was 'entitled to a setoff or credit for this sum' against any further amounts which he might be required to pay her.
After an ore tenus hearing the lower court entered a decree holding that the husband was in arrears in his required payments to the extent of $525, directing that he makes these payments within sixty days, and denying his claim of setoff. From this decree the husband has appealed.
The question of whether the husband was in arrears in his payments turns upon the interpretation of the terms of the decree of December 27, 1956, in the light of these undisputed facts. That decree provided that the husband should support the two children 'in accordance with the terms' of the agreement which the parties had executed and the court had approved. The agreement provided that the husband should pay to the wife the sum of $75 each month 'for the individual support and maintenance of each of said children' while they were in her custody, and the 'additional sum of $200 per month for her separate maintenance and support on condition that she will use such sum for the further purpose of maintaining a private household for herself and said children.' It further provided that in the event of the termination of the wife's custody of both children the payments would cease, and that in the event of the termination of the 'custody of one child, the other remaining in the custody' of the wife, the 'additional sum' payable to the wife should be reduced to $150 per month.
After the entry of the decree of divorce the wife moved to North Carolina and for a time had custody of both children. During that time the husband paid her monthly the sum of $150 for support money for the two children and $200 for the maintenance of the household, or a total of $350, which was in accordance with the terms of the agreement and decree. In November, 1957, the wife gave up the custody of the son to the husband. From that time until the 'spring of 1959' the husband paid to her each month the sum of $75 for the support of the daughter and $200 for the maintenance of the household, or a total of $275 per month. It is agreed that since the wife had custody of only one child this monthly payment of $200 for the household maintenance item was $50 in excess of what was required by the terms of the agreement. It is further agreed that the total of these excess payments amounted to $1,050.
Beginning in July, 1959, the husband continued to make the monthly payment of $75, but omitted the payment of $150 for maintenance of the household. He claimed, as we understand it, that under the terms of the settlement agreement this latter item of $150 was intended for the support and maintenance of the wife and that he was justified in withholding this payment because, he said, she had violated the terms of the agreement and decree in refusing to allow the daughter to visit him, and in other respects. The total of the sum so withheld by him under his interpretation of the agreement and decree amounted to $525.
In interpreting the 1956 decree the lower court held in the decree appealed from that the monthly item of $150 was not support money for the wife, but that that item and the item of $75, or 'the entire sum of $225, was intended by the parties to constitute money paid for the support of the child as contemplated by said decree and that the same does, in fact, constitute support money as contemplated in said decree.' Consequently, the court held that the husband was in arrears in the required payments in the total sum of $525.
We agree with this holding of the lower court. It will be recalled that the husband was granted a divorce on the ground of the wife's desertion and she was awarded no alimony or support money. The settlement agreement, incorporated in the decree, specified that the item of $200, or $150, for the maintenance of the household was 'for the further purpose of maintaining a private household for herself and said children,' and that such payments would cease upon the termination of her custody of both children. The record shows that at a hearing on a rule issued against the husband for failure to make the required payments here in issue, he admitted that it was the purpose of the settlement agreement that the wife should have custody of both children 'and a total of $350 per month to enable her to provide for them,' and that she 'was to receive no sum which she was to be free to use independently of at least indirect benefit to the children.'
But aside from this admitted interpretation of the agreement, certainly the household maintenance item was one which the 1956 decree provided...
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Reid v. Reid
...Richardson v. Moore, 217 Va. 422, 229 S.E.2d 864 (1976); Cofer v. Cofer, 205 Va. 834, 140 S.E.2d 663 (1965); Newton v. Newton, 202 Va. 515, 118 S.E.2d 656 (1961). This Court has consistently followed these well established principles. See, e.g., Martin v. Bales, 7 Va.App. 141, 147, 371 S.E.......
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In re Capps
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