Kenneth C. Umstead v. Virginia K. Umstead, etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
KENNETH C. UMSTEAD
MEMORANDUM OPINION *
v. Record No. 2763-95-1 PER CURIAM
JUNE 25, 1996
VIRGINIA K. UMSTEAD, N/K/A
VIRGINIA K. JERNIGAN
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
E. Preston Grissom, Judge
(Gregory S. Duncan, on briefs), for
appellant.
(Donald G. Wise; Melvin J. Radin; Wise &
Wise, on brief), for appellee.
Kenneth C. Umstead (husband) appeals the decision of the
circuit court denying his request to terminate the spousal
support paid to Virginia K. Umstead (wife). Husband argues that
the court lacked subject matter jurisdiction when it modified his
spousal support obligation in 1991. Husband also argues that the
court exceeded its statutory authority and that Code § 20-109
prohibited any modification of the spousal support provision of
the final divorce decree. Upon reviewing the record and briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
Prior to the entry of the final divorce decree, the parties
entered into an agreement under which husband agreed to pay wife
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
$700 per month in spousal support. The agreement provided that
"[n]o modification or waiver of any of the terms of this
Agreement shall be valid unless in writing and executed with the
same formality as this Agreement." The trial court entered the
parties' final decree of divorce on April 27, 1989. The decree
ratified, confirmed and incorporated the agreement.
By motion filed October 7, 1991, husband sought to reopen
the matter. A consent decree was entered on October 7, 1991.
The consent decree stated the following:
CAME the parties and represented to the Court
that they have reached agreement on an
amendment of the [husband's] obligation for
spousal support as provided for in the
parties' Stipulation and Property Settlement
Agreement . . . incorporated in this Court's
Final Divorce Decree dated April 27, 1989.
WHEREFORE, for reasons satisfactory to the
Court, it is hereby ADJUDGED and DECREED that
the [husband] pay to the [wife] monthly
alimony equal to one-half the gross amount of
his military retired/retainer check, and that
his obligation will be subject to all costs
of living or other adjustments during this
obligation of support. Payments will
continue until the death of the first of the
parties to die and will not terminate upon
the remarriage of the [wife].
Spousal support was awarded in the final decree. Cf. Dixon
v. Pugh, 244 Va. 539, 542-43, 423 S.E.2d 169, 171 (1992) (nunc
pro tunc order cannot be used to create jurisdictional fiction).
The parties' agreement, incorporated into the final decree,
expressly authorized modification of its terms. Husband has not
alleged that the consent order failed to satisfy the agreement's
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requirements for modification.
Furthermore, Code § 20-109 authorizes modification of
spousal support "[u]pon petition of either party . . . as the
circumstances may make proper." Husband petitioned for
modification of support, based upon the parties' new agreement.
The modification requested in 1991 therefore satisfied both the
provisions of Code § 20-109 and the provisions of the final
decree.
To the extent that husband now seeks to appeal the 1991
consent decree on the ground that the circumstances did not
justify modification, his arguments are untimely. Rule 1:1.
Similarly, his assertion that the modification did not "increase,
decrease or terminate" spousal support is contradicted by the
record. Any allegation that the modification was itself
erroneous is also untimely.
Finally, while the legislative presumption is that spousal
support will terminate upon remarriage, parties may enter into an
agreement to pay support beyond remarriage, and that agreement
will be enforced as long as the parties' intention is clearly set
out in the agreement. "[T]o avoid the operation of the statutes
terminating spousal support upon the remarriage of the obligee
spouse, a separation agreement 'must contain clear and express
language evincing the parties' intent that spousal support will
continue after remarriage; otherwise, remarriage terminates the
obligation.'" Gayler v. Gayler, 20 Va. App. 83, 85, 455 S.E.2d
3278, 279 (1995) (quoting Miller v. Miller, 14 Va. App. 192,
196-97, 415 S.E.2d 861, 864 (1992)). The consent decree
expressly provided that spousal support would continue after
wife's remarriage. Therefore, wife's remarriage did not
terminate husband's obligation.
Accordingly, the decision of the circuit court is summarily
affirmed. However, wife's motion for relief pursuant to Code
§ 8.01-271.1 is denied.
Affirmed.
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