Richardson v. Moore, 751116

• Decision Date: 24 November 1976
• Docket Number: No. 751116,751116
• Citation: 217 Va. 422,229 S.E.2d 864
• Parties: Hazel A. RICHARDSON v. Samuel J. T. MOORE, Jr., et al. Record
• Court: Virginia Supreme Court

Page 864

229 S.E.2d 864

217 Va. 422

Hazel A. RICHARDSON v. Samuel J. T. MOORE, Jr., et al.

Record No. 751116.

Supreme Court of Virginia.

Nov. 24, 1976.

Joseph E. Blackburn, Jr., Richmond, for appellant.

Samuel J. T. Moore, Jr., Richmond (Moore & Pollard, Richmond, on brief), for appellees.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

PER CURIAM.

Hazel A. Richardson (appellant) and Julian L. Richardson (Richardson) were divorced from the bonds of matrimony by decree entered August 16, 1935. Richardson was ordered to pay appellant $75 per month 'for the support of herself and the said infant child (Julian L. Richardson, Jr.) until the further order of Court but with the right to both of said parties to petition the Court to increase, decrease, or cause to cease, such alimony, as the circumstances may make proper. . . .'

When the infant child attained his majority in August 1949, Richardson, without seeking court approval, reduced payments to $60 per month, effective September 1, 1949. At that rate, he made regular payments until his death in August 1974. By letter dated September 30, 1949, appellant objected to the reduction but thereafter accepted the reduced payments without further complaint.

On April 23, 1975, appellant filed a motion for revival of judgment against Samuel J. T. Moore, Jr., Chapman L. Harrison, and Lawrence L. Goodall, Jr., executors of Richardson's estate (appellees), seeking $4,500 in arrearages of support payments. Appellees filed a demurrer asserting laches, an answer alleging laches and acquiescence, and a plea of the statute of limitations. After considering appellant's deposition and certain exhibits filed by both parties, the trial court, in a letter opinion dated June 10, 1975, found that appellant's claim 'is barred by laches, or that she is estopped from asserting a stale right by acquiescing in decedent's noncompliance with the Court order', and by final order entered June 24, 1975 ruled 'that defendants' Demurrer be, and same is hereby sustained'.*

In Capell v. Capell, 164 Va. 45, 178 S.E. 894 (1935), the trial court had adjudged a husband in contempt for noncompliance with an alimony decree. On appeal, the husband argued that the decree had been 'superseded' by a subsequent contract signed by the wife which reduced the payments decreed. Rejecting that argument and affirming the judgment, we held that since the trial court had retained jurisdiction respecting alimony until the further order of the court 'and because it touches a public as well as a marital duty, jurisdiction cannot be ousted by any agreement of the parties In pais which the court itself does not adopt and approve.' Id., 164 Va. at 52, 178 S.E. at 896.

If a wife's active contractual consent does not excuse a husband's noncompliance with a court's alimony decree, a wife's passive acquiescence does not, and we so hold.

But appellees argue that where, as here, a wife has slept on her rights until the husband's death, a trial court has the power to relieve the husband's estate of arrearages in past due payments. We disagree. Laches is an equitable defense, but "even a court of equity, in an effort to do equity, cannot disregard the provisions of a lawful decree . . .." Fearon v. Fearon, 207 Va. 927, 931, 154 S.E.2d 165, 168 (1967). While there is contrary...