Thomas v. Thomas , 216 Va. 741 ( 1976 )

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 into and made a part of the decree only “insofar as it relate[d] to the real property rights created by this marriage.” Thus, that decree specifically eliminated the provisions for the payment of alimony in the agreement and the a mensa decree. See Code § 20-121. This decree, to which the wife raised no objection, became final twenty-one days after its entry, Rule 1:1, even if erroneously entered contrary to the provisions of Code § 20-109. The final decree could not be modified so as to enforce husband’s obligation to pay alimony in the subsequent contempt proceeding.

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.