EDWIN LAMAR THOMAS v. BARBARA A. THOMAS
Record No. 750847
Richmond
March 5, 1976
741
Present, All the Justices.
William H. Oast, III (Babb & Oast, on brief), for appellee.
POFF, J., delivered the opinion of the court.
Barbara A. Thomas was awarded a divorce a mensa et thoro from her husband, Edwin Lamar Thomas, on the grounds of desertion. The decree provided “that the Stipulation Agreement entered into by the parties is hereby ratified and affirmed and made a part of this Decree.” Under that agreеment, the husband promised to pay the wife $200 per month “as alimony” and to convey the marital home to her. The parties mutually covenanted to release “all curtesy and/or dower interests“. They expressly agreed that their contract would be “submitted to the Court... and made a part of any decree which may be enterеd in this matter.”
The husband made alimony payments regularly until December, 1974. When he missed the paymеnt for that month, the wife petitioned for an order to show cause why he should not be punished for contempt of court. At the contempt hearing, the husband asserted that the a vinculo decree did not obligate him to pay alimony bеcause that decree incorporated the stipulation agreement only insofar as it related to real property rights. By final order entered March 27, 1975, the chancellor found that “the stipulation agreemеnt ... was ratified and affirmed and made a part” of the a mensa decree and “[t]herefore ... that notwithstanding the provisions of the decree a vinculo matrimonii, the Defendant remains to be obligated for the payment of alimony as provided in the said stipulation agreement.” Upon these findings, he ordered the husband to pay the wife $200 pеr month “as alimony as provided in the Stipulation Agreement ... [and] all arrearages acruing [sic] for his failure to сomply with the Stipulation Agreement.”
Citing Perry v. Perry, 202 Va. 849, 120 S.E.2d 385 (1961), the husband argues that the chancellor had no jurisdiction to enter the March 27, 1975, order granting alimony, because he says the a vinculo decree excluded alimony and contained no reservation of power to re-open the case and modify the decree.
The dispositive question, then, is whether the a vinculo decree obligated the husband to pay alimony.
Under
“... if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed with the pleadings or depositions, then no dеcree or order directing the payment of
alimony,* suit money, or counsel fee shall be entered exceрt in accordance with that stipulation or contract unless such party raise objection thereto рrior to entry of the decree....”
When a stipulation agreement is filed and no objection is raised, ”
Here, the a vinculo decree provided that the parties’ contract, which had been filed with the depositions and not objected to, be incorporated only “insofar as it relatеs to ... real property rights“. We are of opinion that this provision was an adjudication eliminating the alimony tо which the parties had agreed; that it was an adjudication within the intendment of the statutory proviso; and that it was, therefore, an adjudication beyond the jurisdiction of the trial court.
In light of the rule in Perry, we consider whether the a vinculo decree obligated the husband to pay alimony.
Where, as here, an a mensa decree is merged into an a vinculo decree, the latter subsumes the former; the a mensa decree loses its separate idеntity, and all of its provisions not lawfully modified by the trial court assume the integrated identity of the a vinculo decree. The husband contends that the provision in the a mensa decree incorporating the stipulation agreement was modified in the a vinculo decree to exclude the obligation to pay аlimony. But, as we have said, under the statutory proviso the chancellor was without jurisdiction to make such a modification.
We hold that the a vinculo decree obligated the husband to pay alimony and that the March 27, 1975, order did not violate the rule in Perry.
Affirmed.
I‘ANSON, C. J., dissenting.
The final a vinculo decree expressly stated that the stipulation agreement between the parties dated September 26, 1972, was incorporated
I would reverse this case and hold that the chancellor could not modify the final decree which was no longer under his control. The wife‘s remedy, if any, should be confined to an action at law upon the contract between the parties.