Evelyn Christian Brydon v. Robert Carter Brydon ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
EVELYN CHRISTIAN BRYDON
MEMORANDUM OPINION * BY
v. Record No. 0808-97-2 JUDGE LARRY G. ELDER
NOVEMBER 4, 1997
ROBERT CARTER BRYDON
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Maurice H. Bell, Jr., for appellant.
Robert G. Cabell, Jr., for appellee.
Evelyn Christian Brydon (wife) appeals an order of the
trial court terminating the monthly spousal support paid to her
by Robert Carter Brydon (husband) since their divorce. She
contends (1) that the evidence was insufficient to support the
trial court's conclusion that she engaged in an incestuous
relationship with the parties' son during his teenage years, and
(2) that the trial court erred as a matter of law when it
terminated her spousal support. For the reasons that follow, we
reverse.
The evidence established that the parties were married in
1961 and divorced in 1969. The parties had one child, a son, who
was six at the time of the divorce and thirty-four at the time of
the hearing on husband's petition to terminate spousal support.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
At the hearing, the parties' son testified that, beginning when
he was thirteen or fourteen, he began an incestuous relationship
with his mother. Wife contends that Code § 20-109 precluded the
trial court from terminating spousal support because the parties
contractually agreed upon the amount of spousal support in a
settlement agreement that was approved and incorporated into
their final divorce decree. We agree.
The record indicates that, prior to their divorce, the
parties entered into an agreement that states that "[h]usband
agrees to pay to the wife the sum of Two Hundred Dollars
($200.00) per month alimony for the wife . . . ." In their final
divorce decree, the trial court incorporated the parties'
agreement and ordered:
in conformity with said agreement and with
the consent of the parties, . . . that
[husband] pay to [wife] the sum of $200.00
alimony each month until such time as [wife]
remarries, or the death of one or the other
parties, or until the further order of this
Court; . . . .
We hold that the trial court erred when it terminated wife's
spousal support because it lacked the authority to do so. Under
Code § 20-109, the trial court may modify or terminate a prior
award of spousal support upon the petition of either party, if
the court determines that there has been a material change in
circumstances that justifies the remedy sought. See Hollowell v.
Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988).
However, where the parties contract or
stipulate to the amount of spousal support
and that agreement is filed without objection
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prior to the entry of the final divorce
decree, "no decree or order directing the
payment of support and maintenance for the
spouse . . . shall be entered except in
accordance with that stipulation or
contract."
Pendleton v. Pendleton, 22 Va. App. 503, 506, 471 S.E.2d 783, 784
(1996) (quoting Code § 20-109) (emphasis in original). In this
case, the parties agreed to an amount of spousal support that was
incorporated into their final divorce decree. Thus, the trial
court was without authority to terminate spousal support except
as provided in their agreement. See id., 22 Va. App. at 507, 471
S.E.2d at 784 (citing Parrillo v. Parrillo, 1 Va. App. 226, 228,
336 S.E.2d 23, 24 (1985)). Because husband failed to establish
that wife had either re-married or died, the trial court was
powerless to terminate his support obligation.
Assuming arguendo that the language in the final divorce
decree of "or until final order of this Court" gave the trial
court the authority to terminate wife's spousal support based on
a change in circumstances, its decision was still erroneous.
First, its conclusion that husband's "economic circumstances" had
changed was not supported by the evidence. Although husband
testified that he had retired from one accounting firm and joined
another, he testified that his salary was "about the same" and
that he had additional retirement income of $1,500 per month. In
addition, the discovery of an incestuous relationship between a
custodial parent and a child nearly twenty years after the fact
does not, under current law, provide a ground to terminate the
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non-custodial parent's obligation to pay spousal support. While
we agree with the trial court that sexual relations between
parent and child are "egregious" and "reprehensible," it is not a
"'circumstance[]' which make[s] 'proper' . . . [the] cessation of
spousal support under Code § 20-109" because it does not "bear
upon the financial needs of the dependant spouse or the ability
of the supporting spouse to pay." See Hollowell, 6 Va. App. at
419, 369 S.E.2d at 452 (stating that the General Assembly did not
intend for post-marital "misconduct or illicit cohabitation to
terminate spousal support").
Because we hold that the trial court erred when it
terminated wife's alimony on the grounds asserted by husband, we
need not address the sufficiency of the evidence regarding the
alleged incestuous relationship.
For the foregoing reasons, we reverse the trial court's
order terminating husband's obligation to pay spousal support.
Reversed.
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