Shoosmith v. Scott, 750130
Decision Date | 04 March 1977 |
Docket Number | No. 750130,750130 |
Citation | 232 S.E.2d 787,217 Va. 789 |
Parties | Harry Massey SHOOSMITH, Jr. v. Margaret Shoosmith SCOTT, etc. Record |
Court | Virginia Supreme Court |
Frederick T. Gray, R. D. McIlwaine, III (Williams, Mullen & Christian, Richmond, on briefs), for plaintiff in error.
William C. Parkinson, Richmond, for defendant in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
Upon Rehearing
In our opinion in this case of September 2, 1976, 217 Va. 290, 227 S.E.2d 729, we affirmed the trial court's holding that the 1972 amendments to Code §§ 20--109 and 20--109.1 were unconstitutional. On October 18, 1976, we granted a petition for rehearing to the order entered on that opinion and reargument was heard on November 22, 1976.
In his petition for rehearing, Shoosmith, for the first time, relied upon Code § 20--110 1 to buttress his argument that the General Assembly had the reserved power to abrogate the otherwise valid support and maintenance provision of the 1959 property settlement agreement between the parties. He points out that § 5111 of the 1919 Code was the predecessor to several sections in Title 20 of the present Code, including Code §§ 20--109 and 20--110 and that any agreement between husband and wife regarding alimony, counsel fees and suit money was not binding upon a divorce court prior to the reenactment, as amended, of Code § 5111 by the 1944 General Assembly.
The pertinent part of this reenactment, Acts 1944, c. 277, with the amendments appearing in italics, read as follows:
Thus, Shoosmith argues, while the 1944 amendments gave vitality to the parties' contract regarding alimony and support, and elevated its terms 'above the jurisdiction of the divorce court', the same amendments appended a critical limitation--that alimony ceases upon remarriage.
After reargument, the court requested counsel to file supplemental briefs addressing several questions, including:
'Did paragraph numbered 1 of the agreement of May 13, 1959, and paragraph four of the decree of May 20, 1959, provide for alimony or a payment in lieu of alimony?'
In his supplemental brief, Shoosmith argues that the payments for support and maintenance are alimony because it was so 'specifically designated' in the May 20, 1959, divorce decree. 2 To support his position, Shoosmith relies on Durrett v. Durrett, 204 Va. 59, 129 S.E.2d 50 (1963) and Martin v. Martin, 205 Va. 181, 135 S.E.2d 815 (1963), and points out that our earlier opinion in this case syas:
217 Va. at 292, 227 S.E.2d at 731.
In referring to the wife's contractual right to maintenance and support as alimony, our earlier opinion was in error. In Martin v. Martin, supra, Mr. Justice I'Anson, now our Chief Justice, speaking for the court, pointed out:
'In a long line of cases we have set out the differences in attributes and legal effect between decrees for alimony and those approving and confirming contracts between husband and wife for support and maintenance and settlement of their property rights.
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...its obligations, does not constitute an award of alimony subject to section 20-110 of the Virginia Code (1975). Shoosmith v. Scott, 217 Va. 789, 232 S.E.2d 787 (1977). In such situations, it is the parties' contract and not the divorce decree that imposes the “legal obligation” to pay alimo......
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Irwin v. Irwin
...at 970, 407 S.E.2d at 697 (citing Shoosmith v. Scott, 217 Va. 290, 292, 227 S.E.2d 729, 731 (1976), aff'd on rehearing, 217 Va. 789, 793, 232 S.E.2d 787, 789 (1977)). In Shoosmith, the parties entered into a PSA that provided husband pay wife alimony. The court the PSA in the final decree. ......
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...Id. at 292, 227 S.E.2d at 731. Upon rehearing, the Court distinguished the Shoosmith decree from that in Durrett. Shoosmith v. Scott, 217 Va. 789, 232 S.E.2d 787 (1977). It held the payments decreed in Durrett were alimony while those in Shoosmith were contract based payments in lieu of ali......