Reid v. Reid

• Decision Date: 26 May 1992
• Docket Number: No. 1484-89-2,1484-89-2
• Citation: 419 S.E.2d 398,14 Va.App. 505
• Parties: Robert A. REID v. Judith N. REID. Record
• Court: Virginia Court of Appeals

Page 398

419 S.E.2d 398

14 Va.App. 505

Robert A. REID v. Judith N. REID.

Record No. 1484-89-2.

Court of Appeals of Virginia.

May 26, 1992.

[14 Va.App. 506] Ronald R. Tweel, Charlottesville (Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., on briefs), for appellant.

John K. Taggart, III, Charlottesville (Tremblay & Smith, on brief), for appellee.

Present: KOONTZ, C.J., and BAKER, BENTON, BRAY, COLEMAN, ELDER, MOON and WILLIS, JJ.

UPON REHEARING EN BANC

BENTON, Judge.

In this domestic relations appeal, the Court granted a rehearing en banc to consider whether Robert Reid may seek restitution of money paid as spousal support to his former wife under a decree that was reversed and set aside on direct appeal. A panel of this Court, with a dissent, held that restitution could not be had for spousal support payments improperly ordered. See Reid v. Reid, 12 Va.App. 1218, 409 S.E.2d 155 (1991). For the reasons that follow, we conclude that the doctrine of restitution may be invoked, and we remand to the trial judge for a determination of the extent to which restitution should be ordered.

I.

This case was first appealed to this Court after the trial judge entered a decree granting a divorce on the ground that the parties had lived separate and apart for one year. Code § 20-91(9)(a). In that appeal, this Court concluded that the trial judge erred in denying the husband a divorce based on the wife's desertion and in granting her spousal support. ¹ See Reid v. Reid, 7 Va.App. 553, 375 S.E.2d 533 (1989). This Court also held that the trial judge erred in applying the factors of Code § 20-107.3 to fashion a $50,000 monetary award in the wife's favor and in awarding the wife attorney's fees. Id.

On remand, the trial judge granted to the wife a monetary award in the amount of $35,000, ordered the husband to pay $18,138.44 for the wife's attorney fees, and ordered the husband to pay costs. The trial judge denied the husband's "Motion for Recoupment" and denied the husband a judgment against the wife for $25,200, the amount the husband had paid in spousal support. ²

II.

It has long been the rule in Virginia that if, pending an appeal, the appellant has paid the judgment that is being appealed, the appellant, upon reversal of the judgment, is entitled to restitution of the money so paid. Flemings v. Riddick's Ex'r, 46 Va. (5 Gratt.) 272, 278 (1848); Jones v. Bradshaw, 57 Va. (16 Gratt.) 355, 362 (1863); Green & Miller v. Brengle, 84 Va. 913, 916, 6 S.E. 603, 604-05 (1888). The same general rule is found in other jurisdictions. See, e.g., Mathison v. Clearwater County Welfare Dep't, 412 N.W.2d 812, 813 (Minn.Ct.App.1987); Shanahan v. Shanahan, 80 A.D.2d 738, 739, 437 N.Y.S.2d 169, 171 (1981); Guaranty Sav. Assur. Co. v. National American Bank, 407 So.2d 795, 797 (La.Ct.App.1981), cert. denied, 410 So.2d 1135 (La.1982); State ex rel. State Highway Comm'n v. Morganstein, 588 S.W.2d 472, 476-77 (Mo.1979); Currie v. Drake, 550 S.W.2d 736, 740-41 (Tex.Ct.App.1977); Rhodes v. Sigler, 44 Ill.App.3d 375, 377-78, 2 Ill.Dec. 626, 628-29, 357 N.E.2d 846, 849 (1976). This rule is consistent with the Restatement of Restitution § 74 (1937), which provides:

A person who has conferred a benefit upon another in compliance with a judgment ... is entitled to restitution if the judgment is reversed ..., unless restitution would be inequitable ...; if the judgment is modified, there is a right to restitution of the excess.

The husband's case for restitution requires consideration of two fundamental concepts: (1) this Court's authority under Code § 17-116.09 to affirm, reverse, modify, or set aside a judgment or order of the trial court, and (2) upon reversal on appeal of an initial support order made pursuant to Code § 20-107.1, the trial judge's duty to correct the trial error. In Flemings, the Supreme Court explained:

The power of a Court to repair the injury occasioned by its own wrongful adjudication, is not derived from a mandate of the appellate forum, made upon rendering the judgment or decree of reversal, but is substantially the same which it exercises when its own process has been abused, or used without authority, by its suitors or ministerial officers.... And so it may [award a writ of restitution] where its process has been misapplied by its own authority erroneously exercised, as is made manifest by a reversal of the judgment or decree on which it issued, whether accomplished by its own jurisdiction, or that of a higher appellate tribunal.

* * * * * * That the mandate for restitution is merely declaratory or directory [rather than statutorily imposed], is obvious from the consideration, that it is never refused upon a reversal on the merits, unless for the want of sufficient evidence to show that the erroneous judgment or decree has been actually enforced; and then the refusal is never entered on the record, but the whole matter silently referred to the cognizance of the Court below.

* * * * * *

Our accustomed omission of a mandate for restitution cannot, therefore, where there has been a reversal upon the merits, be treated as resulting in the monstrous perversion of justice, that there shall be no restoration to what has been lost by occasion of the erroneous judgment or decree; nor in ousting the Court below of its inherent and salutary jurisdiction of correcting the misapplication of its own process....

46 Va. (5 Gratt.) at 281-84. See also Rule 1:1. ³

More recently, in Young v. Young, 212 Va. 761, 188 S.E.2d 200 (1972), the Supreme Court set aside a trial judge's order denying spousal support to the wife upon an initial application and remanded the case to the trial judge with instructions "to determine the amount of [spousal support] to be awarded the wife." Id. at 762, 188 S.E.2d at 201. On remand, the trial judge granted spousal support to the wife effective three days prior to the date of the trial judge's order. On appeal from that order, the Supreme Court held:

We have adopted the rule "that the time permanent alimony shall commence is within the sound discretion of the court and may be made effective as of the date of the commencement of the suit." In rejecting [the wife's] argument, the chancellor assigned definitive grounds. We cannot say that his refusal to make the alimony award effective as of the date of the commencement of the suit was an abuse of discretion.

However, our opinion [on the first appeal] foreclosed the exercise of the chancellor's discretion to fix a commencement date later than the date of our mandate. Accordingly, we hold that the award of alimony granted [the wife] by the [trial judge's] decree ... is effective beginning [the date of the mandate of the first appeal] with interest from that date.

Young v. Young, 215 Va. 125, 126, 207 S.E.2d 825, 825-26 (1974) (citations and emphasis omitted). See also Hughes v. Hughes, 173 Va. 293, 306, 4 S.E.2d 402, 407 (1939) (reversing on direct appeal the trial judge's denial of spousal support to the wife under Code § 5111 (now Code § 20-107.1, as amended 1988)), and ordering the trial judge to award spousal support to the wife and to calculate restitution if any due to husband for sums he may have paid). These cases contradict the argument urged by the wife that the reversal of a support obligation leaves the husband, who paid in accordance with the now vacated judgment, remediless.

The statutory limitations of Title 20, which control revision of decrees based on changed circumstances, do not apply to this case because the question here concerns an error made in the trial judge's original determination. The statutory authority to revise and alter a decree based on a change in circumstances involves a reconsideration of the parties' previously determined rights. See Turner v. Turner, 3 Va.App. 31, 33-34, 348 S.E.2d 21, 22 (1986). Application of principles of restitution concerns the legal and proper application of the Court's inherent power "to repair an injury occasioned by its own wrongful adjudication." Flemings, 46 Va. (5 Gratt.) at 281. When the trial judge's decree is reversed, vacated, or set aside due to error, it is a nullity and may give rise to the remedy of restitution. Id.

The trial judge's authority to make an award of support and maintenance is statutory. See Jackson v. Jackson, 211 Va. 718, 719, 180 S.E.2d 500, 500 (1971). Moreover, the decision whether to make an award is specifically prescribed as follows:

[N]o permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce [for adultery, sodomy, or buggery committed outside the marriage]. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties....

The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other [fault] ground for divorce under the provisions of § 20-91(3) or (6) or § 20-95.

Code § 20-107.1. The statute authorizes a court to "make such further decree as it shall deem expedient concerning the maintenance and support of the spouses." Code § 20-107.1. Thus, apart from the inherent authority to order restitution, as described in Flemings, this clause authorizes a trial judge to order, in the appropriate case, restitution of spousal support paid under a decree that is later vacated. See Hughes, 173 Va. at 306, 4 S.E.2d at 407.

Our Supreme Court has long adhered to the view that a trial judge's spousal support order, when reversed on appeal, must be modified from a date that pre-dates the order of the appellate court. In Hughes, the trial judge...