Wallihan v. Hughes

• Citation: 82 S.E.2d 553,196 Va. 117
• Parties: LEWIS E. WALLIHAN v. ROSALIE JORDAN HUGHES
• Decision Date: 21 June 1954
• Court: Virginia Supreme Court

Page 553

82 S.E.2d 553

196 Va. 117

LEWIS E. WALLIHAN v. ROSALIE JORDAN HUGHES.

Supreme Court of Appeals of Virginia

June 21, 1954.

Sands, Marks & Sands, for the appellant.

T. Nelson Parker and Thomas N. Parker, Jr., for the appellee.

JUDGE: MILLER

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

This appeal presents the ultimate question of what effect is to be given a decretal judgment of a court of competent jurisdiction of a sister state embodying and approving a post nuptial marriage agreement though the agreement may infringe upon the public policy of this State. The full faith and credit clause, Article IV, § 1, of the United States Constitution, the Act of Congress, 28 U.S.C. § 1738, implementing that clause, and § 8-271, Code of Virginia, 1950, declaring Virginia's policy on the effect to be given judicial proceedings of another state, are set out below. ¹

On November 8, 1952, Lewis E. Wallihan filed this suit against Rosalie Jordan Hughes and alleged that on January 4, 1952, he and defendant, who were then husband and wife and residents of Virginia, entered into a written separation agreement which is set out in the bill, the pertinent parts of which follow:

'This agreement, made this 4th day of January, 1952, by and between Lewis E. Wallihan, party of the first part, and Rosalie Jordan Wallihan, party of the second part:

'That for and in consideration of the mutual promises and agreements hereinafter contained, the parties hereto are agreed as follows:

'1. That they can no longer live together as husband and wife.

'2. That they will hereafter live separately and apart, and each hereby relinquishes all claim to the society and consortium of the other.

'3. The party of the second part intends to proceed forthwith to effect legal proceedings in Virginia or elsewhere so as to procure a legal termination of the marriage relation heretofore existing between the parties.

'4. It is mutually agreed that the party of the first part will pay to the party of the second part in full settlement of all claims on her part against him for alimony, support money, suit money, counsel fees or costs, now or in the future, the sum of Five Thousand Dollars ($5,000.00), payable $2,500.00 on January 7, 1952, and the residue at such date as the party of the second part has obtained a valid final decree of divorce from the party of the first part.

'5. It is further mutually agreed that the party of the first part shall have the custody and control of the infant child of the parties, Nell E. Wallihan, presently aged thirteen, subject to the approval of any court of competent jurisdiction, * * *.

'6. It is further mutually agreed that the home owned and occupied by the parties, title to which is in the name of the mother of the party of the second part, Mrs. Nellie Frances Jordan, will be sold within six months from January 15, 1952, unless such time shall be extended by mutual consent, and that from the proceeds thereof the party of the first part shall receive a sum equal to all principal payments made by him on account of the purchase thereof, * * *. The party of the second part covenants that she will cause such sale to be made, as herein agreed upon, and that such payment as is herein specified will be made to the party of the first part from the proceeds thereof.

'7. The furniture in the said home shall be divided between the parties as follows:

* * *

(Numerous articles are here enumerated and allotted to the respective parties.)>

'13. This agreement is made in an effort on the part of the parties to agree in so far as is legally possible on a settlement of their property rights, support and maintenance for the party of the second part, and other related questions, and contains nor is intended to contain any agreement contrary to law or public policy or any collusive arrangement for a termination of the marriage by consent, and in so far as possible under the law to provide for the welfare of the said child.

'14. The party of the first part agrees and covenants to support the child of the parties in accordance with his station in life and to the best of his ability, and to secure for her such education as will accord therewith.'

Complainant further alleged that on February 23, 1952, Rosalie Jordan Wallihan, now Rosalie Jordan Hughes, obtained a divorce from him, and a copy of the decree granted in the State of Nevada is made a part of the bill.

In the divorce suit Rosalie Jordan Wallihan appeared in person and by counsel, and Lewis E. Wallihan appeared by counsel and filed an answer to the bill. A factual finding of bona fide residence of the plaintiff in Nevada for the required statutory period is recited in the decree, and the following order and adjudication is made upon the separation agreement:

'2. That the written agreement, dated January 4, 1952, entered into between Plaintiff and Defendant, a full, true and correct copy of said agreement having been admitted in evidence and marked 'Exhibit A' be, and the same hereby is, by this Court, ratified, approved and made a part of this decree and the parties are ordered and directed to abide by all the terms and conditions thereof.'

Complainant also alleged that differences had arisen between the parties as to their rights to custody of their child, and as to their rights and interests in real estate described as 4205 Hanover avenue, Richmond, Virginia. He prayed that the court determine their respective rights under the divorce decree and agreement 'particularly under paragraph 5 and 6 and 14,' thereof, having to do with the child's custody and the Hanover avenue property, and that he be granted general relief.

Defendant, in her answer and cross-bill, admitted execution of the agreement, that she obtained the divorce, and that the $5,000 mentioned in the agreement had been paid to her. She asserted that the contract was against public policy and void, that it had been obtained by fraud, that the real estate belonged to her mother, Nellie Frances Jordan, and that defendant was under no obligation to procure its sale and division of the proceeds, and alleged that a new agreement as to the custody of the child had been made since her return to Virginia. She prayed that complainant be denied any relief, that custody of the child be granted to her, and that complainant be required to pay for its support.

The cause was heard upon the pleadings and the court found that the separation agreement was against public policy and void. It held and decreed as follows:

'It appearing to the court from the pleadings and the arguments of counsel that this is a suit for declaratory judgment, that the attempted agreement of separation (Exhibit B with the Bill) made by the parties hereto is void because its terms are against public policy, and that the decree of the Nevada court (Exhibit A with the Bill) approving said agreement is ineffective to alter such findings, that this action seeks to have the court declare the respective rights of the parties under said agreement and decree and that the action should therefore be dismissed, leaving only the question of the custody and support of the infant child as to which action for declaratory judgment is nor an appropriate proceeding.

'THEREFORE, it is ordered that this suit be and the same is hereby dismissed, * * *.'

The child has always resided in Virginia, and both litigants are now residents of Virginia, but there is no claim by either party that defendant had not acquired a bona fide domicile in Nevada for the required period of time when she obtained the divorce granted her by the Nevada court.

The parties concede that custody of the child is not rendered res judicata by the decree that confirmed the separation agreement. Roskein v. Roskein, 25 N.J.Super. 415, 96 A. (2d) 437. They agree that as to such custody the contract and decrees are subject to modification by a court of competent jurisdiction if changed conditions require modification for the best interest of the child. Change or modification of the decree, though it be of a Virginia court, may be made under such circumstances. Section 20-108, Code of 1950; Gloth v. Gloth, et al., 154 Va. 511, 153 S.E. 879; Bailey v. Bailey, 172 Va. 18, 200 S.E. 622; Kern v. Lindsey, 182 Va. 775, 30 S.E. (2d) 707. The full faith and credit clause does not require that we give greater force and effect in this respect to a decree of a sister state than to a decree of our court.

The dominant question is whether or not the final decree of the foreign court which ratified and confirmed the contract, and made it a part thereof, is now binding and enforceable between the parties insofar as it affects their property rights.

In her brief defendant states her position thus:

'The decree of the Nevada court is entitled to full faith and credit in the courts of this State only so far as it dissolves the marital status of the appellant and appellee. The agreement, although incorporated as a part of the Nevada decree, is not entitled to full faith and credit since it is contrary to the public policy of this State and since the Nevada court had no jurisdiction over the subject matter of the agreement.'

She insists that the contract, though it be embodied in the decree, is contrary to our public policy and will not be recognized and enforced in this State. McFarland v. McFarland, 179 Va. 418, 19 S.E. (2d) 77.

A contract that is entered into before separation of the parties and which facilitates or promotes separation or divorce is void. Cumming v. Cumming, 127 Va. 16, 102 S.E. 572; Shelton v. Stewart, 193 Va. 162, 67 S.E. (2d) 841; Arrington v. Arrington, 196 Va. 86, S.E. (2d) , this day decided; 130 A.L.R. 1008; 1 Bishop on Marriage, Divorce and Separation, § 1261; 1 Nelson on Divorce and Annulment, 2d ed., § 13.22, p. 504; Keezer: Marriage and Divorce, 3d ed., § 249, p. 308; 6 Williston on Contract, rev. ed., §§ 1742, 1743, pp. 4928, 4933, and 1953 Supp., §§ 1742, 1743;...