Donald J. Ponton v. Cheryl J. Ponton ( 2000 )


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  •                       COURT OF APPEALS OF VIRGINIA
    Present: Judges Benton, Humphreys and Retired Judge Kulp ∗
    Argued at Richmond, Virginia
    DONALD J. PONTON
    MEMORANDUM OPINION ∗∗ BY
    v.   Record No. 0709-99-2                 JUDGE ROBERT J. HUMPHREYS
    AUGUST 22, 2000
    CHERYL J. PONTON
    FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
    William R. Shelton, Judge
    Homer C. Eliades (Eliades and Eliades, on
    brief), for appellant.
    Charles W. Beddow (Beddow, Marley, Trexler &
    Fitzhugh, on brief), for appellee.
    Donald J. Ponton (husband) appeals a February 22, 1999
    order of the circuit court mandating that he pay his former
    wife, Cheryl J. Ponton (wife), spousal support arrearage from
    January 1, 1996.   For the reasons that follow, we reverse the
    order of the circuit court.
    I.   Background
    In 1994, wife petitioned the Juvenile and Domestic
    Relations District Court ("JDRC") of Chesterfield County for
    ∗
    Retired Judge James E. Kulp took part in the consideration
    of this case by designation pursuant to Code § 17.1-400,
    recodifying Code § 17-116.01.
    ∗∗
    Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    child and spousal support from her estranged husband.    With
    regard to the spousal support, the JDRC ordered husband to pay
    wife $200 per month.   Wife appealed this order to the circuit
    court, which granted her spousal support of $375 per month by
    its order of November 10, 1994.   Subsequently, on January 31,
    1995, the circuit court transferred all matters pertaining to
    "custody, visitation and child support of the minor children and
    spousal support to the Juvenile and Domestic Relations [Court]"
    pursuant to Code § 20-79(C), and struck the matter from its
    docket.
    Approximately one year later, on February 8, 1996, wife and
    husband entered into a written Separation and Property
    Settlement Agreement ("Agreement") which provided the following
    regarding spousal support:
    21. Support and Maintenance of Wife:
    Wife's current support and maintenance by
    Husband's payments by order of Court are set
    at $375.00. Beginning with January 1, 1996
    the support and maintenance payments by
    Husband to Wife shall be reduced to $200.00
    monthly with Husband's payments to continue
    to the last month Wife is required to pay a
    monthly payment of $200.00 to NationsBank
    . . . .
    Following payment by Wife of her
    obligation herein to pay NationsBank . . .
    Husband's obligation to pay support and
    maintenance to Wife shall be reduced to
    $1.00 annually . . . .
    The Agreement also stated the following:
    4. Subsequent Divorce: Husband and Wife
    anticipate a divorce. Upon presentation to
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    the Court of a sketch for a final decree of
    divorce, Husband and Wife agree to request
    the Court to affirm, ratify and incorporate
    this Agreement . . . into said decree. . . .
    Husband and Wife agree to be bound hereby in
    any event.
    Husband later filed for divorce in the circuit court.   On
    June 20, 1996, husband was granted a divorce a vinculo
    matrimonii from wife.   The decree entered by the circuit court
    on that date stated the following, in pertinent part:
    It is further appearing to the Court
    that the parties have entered into a[n]
    . . . Agreement dated the 8th day of
    February, 1996.
    It is therefore ORDERED that the Court
    doth affirm, ratify and incorporate into
    this Decree by reference hereto, the . . .
    Agreement between the parties dated February
    8, 1996, pursuant to § 20-109.1 . . . .
    The Juvenile and Domestic Relations
    Court for the County of Chesterfield having
    exercised jurisdiction over the custody,
    visitation and support and maintenance of
    the parties' infant children, plus spousal
    support for defendant, this Court exercises
    no jurisdiction over those issues.
    And it appearing that nothing remains
    to be done in this matter, the same is
    stricken from the docket of this Court
    . . . .1
    In accord with the decree of divorce and the Agreement,
    husband began paying wife $200 per month, instead of $375 per
    month, on January 1, 1996.   In 1998, wife petitioned the JDRC
    1
    There was no § 16.1-244(A) hearing held in the divorce
    matter.
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    for an order calculating the amount of spousal support payments
    actually due, pursuant to the orders entered over the previous
    years. 2   Specifically, wife argued that the circuit court had no
    jurisdiction over matters of spousal support when it entered the
    divorce decree.    Accordingly, she claimed that the correct
    amount of spousal support was $375 per month, as first ordered
    by the circuit court, and that husband owed her an arrearage of
    support of $175 per month, dating back to January 1, 1996 when
    he began paying the lower support payment.    Husband also filed a
    motion to terminate spousal support payments due under the
    Agreement and decree, claiming that certain obligations under
    the Agreement had been met and that spousal support was no
    longer required under the Agreement and decree.    Both motions
    were denied by the JDRC.
    Wife appealed the decision to the circuit court.    After a
    de novo hearing, the circuit court found that the provisions of
    the Agreement regarding spousal support were not incorporated
    into the final decree of divorce and ordered husband to pay wife
    spousal support arrearage in the amount of $175 per month from
    January 1, 1996.    It is this order of the circuit court which we
    review on appeal.
    2
    Wife also asked the JDRC for an increase in child support
    payments, which was ultimately granted by the circuit court but
    is not a subject of this appeal.
    - 4 -
    II.   Analysis
    Code § 16.1-244(A) specifically empowers the circuit court,
    concurrently with JDRC, "to determine spousal support in a suit
    for separate maintenance.   However, when a suit for divorce has
    been filed in a circuit court, in which . . . spousal support is
    raised by the pleadings and a hearing is set by the circuit
    court on . . . such issue . . . within twenty-one days of the
    filing, the juvenile and domestic relations district courts
    shall be divested of [jurisdiction] . . . ."   By its express
    language, this statute provides for a divestiture of
    jurisdiction of the JDRC in certain instances.   However, there
    is no language suggesting that the circuit court can also be
    divested of jurisdiction.
    In light of the above, wife's argument that the circuit
    court lacked jurisdiction to act with regard to spousal support
    matters lacks merit.    In fact, this Court has held that even
    when a circuit court transfers matters to the JDRC pursuant to
    Code § 20-79(c), subsequent to a suit for divorce under Code
    § 16.1-244(A), "[it] retains . . . continuing jurisdiction over
    those matters."   Crabtree v. Crabtree, 
    17 Va. App. 81
    , 87, 
    435 S.E.2d 883
    , 887 (1993).   Moreover, wife erroneously relies on
    Calfee v. Calfee, 
    29 Va. App. 88
    , 
    509 S.E.2d 552
     (1999), to
    support her argument.   In Calfee, this Court recently reiterated
    that "[a] decree or order of the circuit court emanating from a
    'suit for divorce,' after displacing the jurisdiction of the
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    [JDRC], may be transferred to such court for enforcement or
    related matters, thereby restoring concurrent jurisdiction in
    both courts, without impairing the properly invoked exercise of
    jurisdiction by the circuit court over the transferred issues."
    Id. at 94-95, 
    509 S.E.2d at 555
    .
    In addition, the circuit court's statement in its order of
    June 20, 1996 that it "exercise[d] no jurisdiction over issues
    [of spousal support]" is without consequence.   The court's very
    actions, as well as its 1996 order, are contrary to its
    statement pertaining to jurisdiction.   The circuit court very
    clearly exercised jurisdiction over the parties' Agreement and
    specifically approved and incorporated the entire Agreement into
    the divorce decree, including the provisions regarding spousal
    support.
    In fact, pursuant to Code § 20-109, the circuit court was
    bound by statute to recognize and follow the Agreement.   That
    section provides the following, in pertinent part:
    if a stipulation or contract signed by the
    party to whom such relief might otherwise be
    awarded is filed . . . no decree or order
    directing the payment of support and
    maintenance for the spouse, suit money, or
    counsel fee or establishing or imposing any
    other condition or consideration, monetary
    or nonmonetary, shall be entered except in
    accordance with that stipulation or
    contract. . . .
    In addition, this Court has found that "[this] statute
    . . . expressly permits a court to incorporate only selected
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    provisions of the agreement if it so desires.   [However,]
    [a]lthough incorporation in whole or in part is not mandatory
    . . . [where] the divorce decree incorporated the property
    settlement agreement . . . without specific exception[,] . . .
    the language used . . . [would serve] to incorporate the entire
    property settlement agreement without exception."     Mackie v.
    Hill, 
    16 Va. App. 229
    , 232, 
    429 S.E.2d 37
    , 38-39 (1993)
    (emphasis added).   The circuit court in this case clearly
    incorporated the entire Agreement into the decree, and it set
    forth no specific limitations to indicate a contrary intention.
    Wife's argument that Code § 20-109 cannot apply to this
    case because, as of 1994, when she filed her original petition
    for support in the JDRC, the code section did not contain a
    reference to Code § 16.1-241(L), is also erroneous.    Code
    § 16.1-241(L) addresses jurisdiction of the JDRC, as well as the
    circuit courts in suits for separate maintenance.   The case at
    issue is not a suit for separate maintenance, but a divorce
    proceeding pursuant to Code § 16.1-244(A).   Furthermore, the
    Supreme Court of Virginia has recognized that Code § 20-109 and
    § 20-109.1 "merely codified the preexisting power of a divorce
    court to incorporate a settlement agreement in a decree and to
    enforce it through its contempt power."   Rogers v. Damron, 
    23 Va. App. 708
    , 713-14, 
    479 S.E.2d 540
    , 543 (1997) (emphasis
    added).
    - 7 -
    Wife also contends that our consideration of this appeal on
    grounds of Code § 20-109 is barred based on the failure of the
    statement of facts to show that husband made this specific
    contemporaneous objection to the trial court's ruling.    We
    conclude, however, that this appeal is not barred.    Although the
    statement of facts submitted in lieu of the transcript contains
    no mention of any objection to the trial court's ruling on this
    basis, the final order of February 22, 1999, as signed by
    counsel for appellant, reads "Seen and objected to."    Although
    counsel failed to include specific grounds for the objection, as
    is generally required by Rule 5A:18, the ruling made by the
    trial court was narrow enough to make obvious the basis of
    appellant's objection.   Accordingly, we hold that we may
    consider the merits of appellant's assignment of error on this
    basis.   See Mackie, 16 Va. App. at 231, 
    429 S.E.2d at 38
    .
    Finally, and most importantly, we emphasize that in
    Virginia, property settlement agreements are contracts.
    "Incorporation [of these agreements by the court] does nothing
    more than allow the court to enforce the contract[s] through its
    contempt powers pursuant to Code § 20-109.1.    [Incorporation] is
    not a prerequisite to the binding effect of the contract as
    between the two parties."     Parra v. Parra, 
    1 Va. App. 118
    , 129,
    
    336 S.E.2d 157
    , 163 (1985).    Thus, even if not incorporated, it
    is clear that the Agreement is still enforceable as a contract,
    "[as] it has been recognized in Virginia that 'marital property
    - 8 -
    settlements entered into by competent parties upon valid
    consideration for lawful purposes are favored in the law and
    such will be enforced unless their illegality is clear and
    certain.'"     Id. at 128, 
    336 S.E.2d at 162
     (quoting Cooley v.
    Cooley, 
    220 Va. 749
    , 752, 
    263 S.E.2d 49
    , 52 (1980)).
    To hold otherwise would not only fail to
    give full effect to the property division
    statutes, but also would fail to support
    Virginia's public policy in favor of prompt
    resolution of property disputes in divorce
    cases through voluntary court-approved
    agreements. If divorce litigants know that
    they may repudiate, with impunity, valid
    property settlement agreements in hopes of
    getting a better result from the court, or
    because they no longer wish to honor their
    commitments, the usefulness and validity of
    all such contracts will be lessened.
    Parra, 1 Va. App. at 129, 
    336 S.E.2d at 163
    .    We see no reason
    why the court should allow a party to avoid the consequences of
    a valid contract.
    Accordingly, the decision of the circuit court is reversed
    and this matter is remanded for entry of an order in accordance
    with the terms of the parties' incorporated Agreement.
    Reversed and remanded.
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Document Info

Docket Number: 0709992

Filed Date: 8/22/2000

Precedential Status: Non-Precedential

Modified Date: 4/18/2021