COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Humphreys and Millette
Argued at Chesapeake, Virginia
AMY JO RIGGIN CUSTIS
MEMORANDUM OPINION * BY
v. Record No. 2899-07-1 CHIEF JUDGE WALTER S. FELTON, JR.
JUNE 10, 2008
ELVIN RICHARD CUSTIS, III
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge
Robert G. Turner for appellant.
Carl H. Bundick (Carl H. Bundick, P.C., on brief), for appellee.
Amy Jo Riggin Custis (wife) appeals the trial court’s order dismissing a summons for
Elvin Richard Custis, III (husband) to show cause why he should not be held in contempt for
failure to pay a marital debt included in the parties’ separation and property settlement agreement
(PSA) which was incorporated into their final decree of divorce pursuant to Code § 20-109.1.
Wife contends that the trial court erred in concluding it lacked authority to enforce payment of
that marital debt through its civil contempt powers. For the reasons that follow, we reverse the
judgment of the trial court, and remand to the trial court for further proceedings consistent with
this opinion.
I. BACKGROUND
Husband and wife were married on August 10, 1996, in Accomack County. After a brief
ten-month marriage, they separated. In contemplation of divorce, husband and wife entered into a PSA
dividing their marital debts and assets. Among the provisions of the PSA, husband agreed to pay wife
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
$35,000, secured by a promissory note, in consideration for payments made by wife for the benefit of
the parties. Husband executed the note providing for the payment of the $35,000 indebtedness to wife in
full in 2005. The note was secured by a deed of trust on property owned by husband. The parties’ PSA,
was “ratified[,] [] affirmed and incorporated in its entirety” into the parties’ final decree of divorce.
When husband failed to make payments on the indebtedness consistent with terms of the PSA,
the trial court reinstated the case on its docket and issued orders for husband to show cause why he
should not be held in contempt for failure to pay the marital debt. After husband made substantial
payments on the debt, the show cause orders were dismissed. However, when husband again failed to
make payments, wife obtained a default judgment against husband for the unpaid amount on the
promissory note plus interest and attorney’s fees.
Thereafter, wife asked the trial court to compel payment of the debt through its civil contempt
powers. Again, the case was reinstated on the trial court’s docket and a show cause order was entered
requiring husband to show why he should not be held in civil contempt for failure to comply with the
terms of the 1998 final decree of divorce. After hearing the motion on June 13, 2007, the trial court
ruled that it was “without authority to enforce a monetary award order through its civil contempt of
court powers.”
The sole question on appeal is whether the trial court erred in concluding it lacked authority to
exercise its civil contempt powers to enforce a monetary award contained in the PSA and incorporated
into the parties’ final decree of divorce.
II. ANALYSIS
Code § 20-109.1 provides in pertinent part:
Any court may affirm, ratify and incorporate by reference in
its . . . decree of divorce . . . any valid agreement between the
parties, or provisions thereof, concerning the conditions of the
maintenance of the parties, or either of them and the care, custody,
and maintenance of their minor children, or establishing or
imposing any other condition or consideration, monetary or
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nonmonetary. . . . Where the court affirms, ratifies and
incorporates by reference in its decree such agreement or provision
thereof, it shall be deemed for all purposes to be a term of the
decree, and enforceable in the same manner as any provision of
such decree.
(Emphasis added). We have previously held that when enforcing the terms of a valid agreement
under Code § 20-109.1, the trial court may utilize the equitable powers of the court by enforcing
the terms of the agreement or by utilizing its contempt powers. 1 See Rogers v. Rogers, 51
Va. App. 261, 273, 656 S.E.2d 436, 442 (2008) (“The ‘parties are free to access the equitable
powers of the court to enforce the decree, including the terms of the agreement.’ A court may
[also] enforce its decree by holding non-compliant parties in contempt.” (quoting Campbell v.
Campbell, 32 Va. App. 351, 356, 528 S.E.2d 145, 147 (2000))); see also, Owney v. Owney, 8
Va. App. 255, 259, 379 S.E.2d 745, 748 (1989) (incorporation of PSA into final decree permits
trial court to use contempt power to enforce terms of PSA); Fry v. Schwarting, 4 Va. App. 173,
178, 355 S.E.2d 342, 345 (1987) (PSA incorporated into final decree of divorce is enforceable as
decree of the court).
Here, the parties’ PSA was “ratified[,] [] affirmed and incorporated in its entirety” into
the final decree of divorce. Accordingly, Code § 20-109.1 provides the trial court with the
authority to enforce the terms of the PSA incorporated in its decree through its contempt powers.
Therefore, we conclude that the trial court had the authority to enforce “its decree[] by holding
1
The method of enforcement available to a party depends on whether the “affirmed,
ratified, and incorporated” agreement was also “merged” into the final decree of divorce. If an
agreement is affirmed, ratified, and incorporated, but not merged, into the final decree, “‘the
agreement remain[s] enforceable under either contract law or through the court’s contempt
power.’” Rubio v. Rubio, 36 Va. App. 248, 253, 549 S.E.2d 610, 613 (2001) (quoting Herring v.
Herring, 33 Va. App. 368, 373-74, 533 S.E.2d 631, 634 (2000)). Conversely, where a PSA
“merges” into the final decree of divorce, “‘the party who desires enforcement must enforce the
decree [through the court’s contempt powers] and not the agreement itself [using contract
principles and remedies].’” Herring, 33 Va. App. at 373, 533 S.E.2d at 634 (quoting Doherty v.
Doherty, 9 Va. App. 97, 100, 383 S.E.2d 759, 760 (1989)). Here, the PSA was “ratified[,] []
affirmed and incorporated in its entirety” into the final decree.
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[husband, the] non-compliant party[] in contempt [for failing to abide by the terms of the PSA].”
Rogers, 51 Va. App. at 273, 656 S.E.2d at 442. Accordingly, we reverse the judgment of the
trial court.
III. CONCLUSION
For the reasons stated above, we reverse the judgment of the trial court and remand for
further proceedings consistent with this opinion.
Reversed and remanded.
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