Perry v. Perry

• Decision Date: 12 June 1961
• Docket Number: No. 5257,5257
• Citation: 120 S.E.2d 385,202 Va. 849
• Court: Virginia Supreme Court
• Parties: DAVID SAM PERRY, JR. v. JEANNE SHUMATE PERRY. Record

Page 385

120 S.E.2d 385

202 Va. 849

DAVID SAM PERRY, JR. v. JEANNE SHUMATE PERRY.

Record No. 5257.

Supreme Court of Appeals of Virginia

June 12, 1961.

Beecher E. Stallard, for the appellant.

(Submitted on brief)

No appearance or brief filed on behalf of the appellee.

JUDGE: BUCHANAN

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

This is an appeal from a decree awarding alimony to the appellee some two and one-half years after a final decree in which she had been granted an absolute divorce and which was silent on the subject of alimony.

The appellee, Mrs. Jeanne Shumate Perry, herein called complainant, in April, 1957, filed her bill for a divorce a mensa et thoro from her husband, David Sam Perry, Jr., on the ground of cruelty and for the custody of their daughter, then one year old. She prayed that the defendant be required to pay to her alimony for herself and support money for the child. The defendant filed his answer and on complainant's motion for temporary alimony, support money, fees and costs, the court ordered the defendant to pay only for the support of the child, counsel fees and costs. The defendant failed to comply with this order, was cited for contempt, and the questions of custody and support of the child were referred to the Juvenile and Domestic Relations Court, Code § 20-113.

Afterwards the complainant filed a supplemental bill charging adultery and praying for an absolute divorce. Depositions were taken and by decree dated January 31, 1958, complainant was granted an absolute divorce from the defendant on the ground of adultery. The defendant was ordered to pay a fee to complainant's counsel but no reference was made to alimony for the complainant. The decree concluded with this paragraph:

'And nothing further remaining to be done herein it is ordered that this cause be stricken from the docket and placed among the ended causes with leave to either party to have the same reinstated for good cause shown.'

Thereafter, in July, 1960, the complainant filed her petition alleging that she was unable to support herself and praying that the cause be reinstated on the docket and that defendant be required to pay alimony to her. The defendant filed an answer asserting that the court had lost jurisdiction of the cause because the decree of January 31, 1958, did not specifically retain jurisdiction to allow alimony, and it had been more than twenty-one days since the entry of that decree. Section 2:22 of Rules of Court provides:

'All final decrees, irrespective of terms of court, shall remain under the control of the trial court, and subject to be modified or vacated, for twenty-one (21) days after the date of entry, and no longer.'

The court heard evidence ore tenus, which is not preserved in the record, and on July 15, 1960, entered the decree appealed from holding that it had not lost jurisdiction, reinstating the cause and ordering that the defendant pay to the complainant $25 a month alimony until the further order of the court. The only question now presented is whether the court had jurisdiction to enter that order.

In Brinn v. Brinn, 147 Va. 277, 137 S.E. 503, a suit for divorce and alimony, the wife was granted an absolute divorce and alimony by a decree entered in March, 1923, which concluded with this paragraph:

'And nothing further remaining to be done in this suit, it is further ordered that the same be removed from the docket, with leave reserved to the parties or either of them to make application to this court for such further orders as are authorized by law.' 147 Va. at 279, 137 S.E. at 503.

In August, 1925, the husband filed a petition praying that the amount of alimony be decreased and for other modifications. The wife demurred on the ground that the 1923 decree was a final decree and the court had no jurisdiction to alter or modify it. The court sustained the demurrer and on appeal its action was affirmed.

In 1927, when that case was decided, § 5111 of the 1919 Code provided that after decreeing a divorce the court could make such further decree as it deemed expedient concerning the estate and maintenance of the parties and the custody of the children; and from time to time afterwards, on petition of either party, could revise and alter such decree concerning the custody and maintenance of the children and make a new decree concerning them as the circumstances required. This court held that the 'afterwards' provision applied only to changes in the custody and maintenance of the children 'and the expression of the power to revise and alter the decree in such case is an exclusion of the power in all other cases.' 147 Va. at 282, 137 S.E. at 504.

In the absence of a statute conferring the power, and of any reservation of the power in the decree, it was held, a court of equity has no power to modify a final decree awarding a divorce from the bonds of matrimony and decreeing alimony to be paid in monthly installments. The court agreed with Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, L.R.A. 1917 F, 721, that "an adjudication by a court having jurisdiction of the subject-matter and of the parties is final and conclusive not only as to the matters actually determined, but as to every other matter which the parties ought to have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action.'' 147 Va. at 283, 137 S.E. at 504.

It was further held, however, that in the absence of statute a court of equity has power by a proper reservation to change or modify its decree as to alimony, on the ground that 'When power is reserved over a decree for alimony, to that extent, but to that extent only, the decree fixing the amount is not final. The reservation itself shows that the court has not completely and finally exhausted its jurisdiction over that subject.' 147 Va. at 286, 137 S.E. at 505. But 'If there is no such statute, and no reservation in the decree, then, as we have seen,...