Smith v. Smith

• Decision Date: 09 December 2003
• Docket Number: Record No. 0161-03-1.
• Citation: 41 Va. App. 742,589 S.E.2d 439
• Court: Virginia Court of Appeals
• Parties: Sharon A. SMITH v. Harold E. SMITH, Jr.

589 S.E.2d 439

41 Va. App. 742

Sharon A. SMITH v. Harold E. SMITH, Jr.

Record No. 0161-03-1.

Court of Appeals of Virginia, Chesapeake.

December 9, 2003.

Barry Randolph Koch (Inman & Strickler, P.L.C., on briefs), Virginia Beach, for appellant.

Megan E. Burns (Stephen G. Test; Williams Mullen, on brief), Virginia Beach, for appellee.

Present: ANNUNZIATA, BUMGARDNER and FRANK, JJ.

RUDOLPH BUMGARDNER, III, Judge.

Harold E. Smith, Jr. petitioned to terminate his support obligation because his former wife was cohabiting with another person. The trial court terminated support because the parties merged their support contract into the final decree. It concluded, "the agreement ceased to exist as a separate contract immune from court interference." The wife contends merger did not nullify the contractual nature of her rights arising from the agreement and the trial court could not eliminate her contracted right to spousal support.¹ We reverse because merger did not make the contract subject to judicial modification.

The parties were divorced January 4, 1990. Their property settlement agreement, dated August 25, 1989, stated that spousal support would "terminate only in the events of Wife's death, Husband's death or Wife's remarriage." The final decree "affirmed, ratified, and incorporated" the agreement and ordered compliance with its terms.² The husband filed the petition to terminate support in 2001 after statutory amendments authorized termination of support upon cohabitation. The wife conceded she cohabited with another and the agreement merged into the final decree.

Code § 20-109(A) mandates termination of spousal support upon proof of habitual cohabitation unless a stipulation or contract provides otherwise. Rubio v. Rubio, 36 Va.App. 248, 549 S.E.2d 610 (2001), held the statute did not apply retroactively to a contract that was incorporated, but not merged, into the final decree. The holding specifically deferred ruling on the effect merger may have had; "no merger occurred, and we do not address what effect, if any, merger would have imposed upon Mr. Rubio's support obligation." Id. at 255, 549 S.E.2d at 613.

To determine whether merger extinguished the agreement's limitation on judicial modification of the contracted support, we review the development of the trial court's authority to establish and modify spousal support. Initially, support arising from contract and that arising from court decree were distinct and mutually exclusive entitlements arising from unrelated legal remedies.

Section 5111 of the Code of 1919 was the predecessor of Code § 20-109. It was the source of the trial court's authority to decree alimony.³ Alimony, decreed by court, was distinct from support and maintenance, created by contract. Alimony stemmed from the common-law right of the wife to support by her husband. It was not a property settlement upon dissolution of the marriage and was "`not a judgment for the enforcement of any contract, express or implied, existing between the parties thereto, but for the enforcement of a duty. . . .'" Eaton v. Davis, 176 Va. 330, 338, 10 S.E.2d 893, 897 (1940) (citation omitted). Support was in lieu of alimony and arose as a contracted remedy negotiated by the husband and wife. It was enforced by an action of assumpsit like any other contract. Newman v. McComb, 112 Va. 408, 409-10, 71 S.E. 624, 625 (1911). A court had no authority to modify the contract or to enforce it by its contempt power.

Until 1934, trial courts had no authority to modify alimony decreed in a vinculo divorces unless the power was specifically reserved in the final decree. The General Assembly amended Code § 5111 to give the trial court authority to modify any existing decree of alimony upon proof a change was reasonable and fair. 1934 Va. Acts ch. 329. Eaton ruled the authority to modify alimony applied retroactively because alimony was not a property right. 176 Va. at 340, 10 S.E.2d at 898. The decision emphasized the distinctive features of court ordered alimony and contractual support that made them mutually exclusive remedies.

In 1944, the General Assembly amended Code § 5111 and restricted a trial court's authority to decree alimony when the parties had entered a contract for support.⁴ The effect of this amendment was later summarized in Harris v. Harris, 217 Va. 680, 681, 232 S.E.2d 739, 740-41 (1977):

Under the proviso contained in Code § 20-109, if a stipulation or contract between spouses is filed with the pleadings or depositions in a divorce case, then no decree or order directing the payment of alimony (now support and maintenance) for a spouse, suit money, or counsel fees shall be entered except in accordance with that stipulation or contract unless a party raise objection thereto prior to entry of the decree. As we pointed out in McLoughlin v. McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970), this restricts the court's jurisdiction over awarding "alimony [now support and maintenance], suit money, or counsel fee" to the terms of the contract.

The trial court's authority to award and modify alimony was now constrained by any contract for support. The distinctive qualities of alimony and support, which had been mutually exclusive, were beginning to intertwine.

Alimony and support began as exclusive remedies offering unique advantages and disadvantages. Alimony offered the great advantage of enforcement by the contempt power of the courts. However, it was not a property right, it terminated at death, and it could be modified or eliminated upon changed circumstances. Foster v. Foster, 195 Va. 102, 108, 77 S.E.2d 471, 474-75 (1953). Support was not enforceable by contempt. Moore v. Crutchfield, 136 Va. 20, 28, 116 S.E. 482, 484 (1923). It only offered contract remedies. Martin v. Martin, 205 Va. 181, 185, 135 S.E.2d 815, 818 (1964). However support was a property right, it could extend beyond death, and it was not subject to judicial modification or elimination. Higgins v. McFarland, 196 Va. 889, 895-97, 86 S.E.2d 168, 172-73 (1955). Contractual support offered the great advantage of the stability and the protection against modification or elimination, absent agreement of the parties, afforded to property rights.

The distinctive features of alimony and support presented difficult choices. Durrett v. Durrett, 204 Va. 59, 129 S.E.2d 50 (1963), illustrated the dilemma.

Mary L. Durrett was afforded two distinct methods of compelling her husband to make provision for her support and maintenance. With the choice of remedies before her, she elected to pursue a remedy by way of alimony, rather than relying on the contract of August 1, 1947. She may have been prompted to seek the alimony allowance during her life, because of the attributes and legal effect of alimony hereinbefore mentioned. She was suffering from what she thought was an incurable disease; and, perhaps, did not expect to survive her husband. She got what she asked for, and ought not now be allowed to deny the meaning and effect of the decree in accordance therewith.

Id. at 64, 129 S.E.2d at 54. A spouse had a choice of remedies: by decree of alimony, or by contract in lieu of alimony. Martin, 205 Va. at 185, 135 S.E.2d at 818. Alimony offered the formidable compulsion of a citation for contempt, but lacked protection against modification or elimination. Contracted support offered stability and predictability but lacked the threat of incarceration to enforce compliance.

The enactment of Code § 20-109.1 in 1970 authorized courts to enforce support contracts by contempt. 1970 Va. Acts ch. 501. The great advantage of alimony became available to contractual support and eliminated its great disadvantage.⁵ The practical distinctions between the forms of remedy blurred, and the choice between the two became less perilous. Indeed, the term "alimony" discontinued, and "spousal support" became the collective term to describe both forms of support.

Prior to the enactment of Code § 20-109.1, support arising from contract could only be enforced by contempt power if it was converted from support in lieu of alimony into alimony. Once both types of support were enforceable by contempt power, the nature of the support was no longer the determinative factor when addressing enforcement issues. However, the nature of the support remained determinative when analyzing whether a support award was subject to judicial or legislative modification. Contractual rights were property rights that subsequent court decree or legislative enactment could not modify.

In Shoosmith v. Scott, 217 Va. 290, 227 S.E.2d 729 (1976), the husband defended an action for accrued support payments claiming amendments to Code §§ 20-109 and 20-109.1 terminated his obligation. The amendments mandated that contractual support cease on remarriage unless specifically permitted in the contract.⁶ The Court held the wife's right to support did not depend alone upon the final decree, but it arose from her property settlement agreement. The decree was a final adjudication of her property right and could not be abrogated by subsequent legislative action. 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 alimony. Id. at 793, 232 S.E.2d at 789. The Shoosmith contract, like all private contracts, could not be impaired by legislative action. Id.

In Doherty v. Doherty, 9 Va.App. 97, 383 S.E.2d 759 (1989), the husband asserted the contract defenses of laches, estoppel, and the statute of limitations as a bar to a claim for support arrearages that accrued prior to the final decree. The final decree had incorporated a contract, which characterized the payments as "monthly alimony payments," and ordered compliance with the decree. Id. at 99, 383 S.E.2d at 760....