COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
SHARON ANN LANE
OPINION BY
v. Record No. 0331-99-4 JUDGE ROSEMARIE ANNUNZIATA
APRIL 4, 2000
ROBERT LEE LANE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge
Brian R. Frank for appellant.
Frances Fite (Suzanne G. Scheer; Fite &
O'Brien, Ltd., on brief), for appellee.
Sharon Lane ("wife") appeals the trial court's ruling that
the spousal support awarded in the parties' final decree of
divorce could be modified pursuant to Code § 20-109(A). Robert
Lane ("husband") cross-appeals, contending the trial court erred
by finding that the parties' circumstances did not warrant
either reduction or termination of spousal support and in
denying his motion to do so on that ground. For the reasons
that follow, we hold that the trial court erred in finding the
parties' spousal support agreement subject to modification, but
we affirm its decision denying husband's petition to modify his
support obligation.
FACTUAL BACKGROUND
The parties were divorced by decree of the Circuit Court of
Fairfax County in 1988. There was no equitable distribution
hearing. Instead, counsel for the parties, but not the parties
themselves, signed a final decree of divorce which incorporated
by reference some of the terms to which the parties had agreed
in their settlement agreement. The final decree stated, inter
alia, that husband's spousal support obligation would remain in
effect until the death of either of the parties or until wife's
remarriage. The final decree provided further that wife would
receive thirty percent of husband's retirement pay, but it made
no provision for the distribution of any other property. It
contained no express waivers. The final decree was entered on
December 13, 1988.
The parties entered into a subsequent agreement
memorialized in a consent decree on March 14, 1989, which
increased the level of spousal support from $300 per month to
$500 per month. On September 3, 1997, husband petitioned to
have his support obligation terminated on grounds of material
change in circumstances. The trial court concluded that
husband's spousal support obligation was subject to modification
under Code § 20-109(A), but determined that no reduction or
termination of support was justified by the changes in
circumstances proven by husband. Although the court found that
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the circumstances of both parties had changed since the final
decree was entered, it concluded that husband's financial status
remained "much better" than the financial status of the wife.
The court therefore denied husband's petition for termination or
modification of support.
Wife noted her objection to the court's ruling that the
spousal support was subject to the provisions of Code
§ 20-109(A) allowing modification of the award and that Code
§ 20-109(B) did not apply. Husband noted objections to the
court's ruling as well, contending the court erroneously applied
the standards of Code § 20-107.1 in denying his petition for
modification of his support obligation. Wife noted her appeal
to this Court, and husband cross-appealed.
ANALYSIS
As written in 1988, Code § 20-109(B) 1 read, in pertinent
part:
[I]f a stipulation or contract signed by the
party to whom such relief might otherwise be
awarded is filed before entry of a final
decree, 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
1
The trial court appears to have relied on the current
language of Code § 20-109, although in 1988 the statute was not
subdivided into parts (A) and (B). However, the governing
language from the 1988 statute is identical to that of the
statute in its present form. The parties have adopted the trial
court's references to those subparts, and we follow suit herein
for ease of reference.
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or consideration, monetary or nonmonetary,
shall be entered except in accordance with
that stipulation or contract. If such a
stipulation or contract is filed after entry
of a final decree and if any party so moves,
the court shall modify its decree to conform
to such stipulation or contract.
The Virginia Supreme Court has defined stipulation to mean "an
agreement between counsel respecting business before a court."
Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d 917, 920 (1951). In
order to constitute a stipulation, an agreement between the
parties incorporated into their final decree need only have been
signed by their counsel. See id. Such stipulations or
agreements cannot be modified. See id. ("If the stipulation was
agreed to there can be no objection to it."); Code § 20-109(B).
Cf. Kunz v. Jarnigan, 756 S.W.2d 913, 915 (Ark. Ct. App. 1988)
(stipulation constituting a complete settlement of the parties'
marital rights held not modifiable). However, Code § 20-109(B)
is clear in its requirement that an agreement between the
parties, whether by stipulation or by contract, be signed by the
"party to whom such relief might . . . be awarded," in order for
the terms of the agreement to become non-modifiable.
The final decree was signed by neither party. Thus,
according to the plain language of Code § 20-109(B), no
agreement or stipulation was established by the final decree.
However, the parties' subsequent consent decree meets the
requirements of Code § 20-109(B) and constitutes a stipulation
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as contemplated by the statute. It is a "contract or
agreement," Orlandi v. Orlandi, 23 Va. App. 21, 26, 473 S.E.2d
716, 719 (1996), signed by wife, the party seeking relief under
it. 2 See Durrett v. Durrett, 204 Va. 59, 63, 129 S.E.2d 50, 53
(1963) ("'A consent decree is a contract or agreement between
the parties to the suit, entered of record in the cause with the
consent of the court, and is binding unless secured by fraud or
mistake.'" (quoting Barnes v. American Fertilizer Co., 144 Va.
692, 720, 130 S.E. 902, 911 (1925))). As the parties' consent
decree was filed after the entry of the properly signed final
decree by agreement of the parties, it becomes the governing
agreement between the parties, see Parrillo v. Parrillo, 1
Va. App. 226, 230-31, 336 S.E.2d 23, 25-26 (1985), and pursuant
to Code § 20-109(B) its provisions regarding support cannot be
modified. We, accordingly, find the trial court erred in ruling
to the contrary and reverse its decision that the spousal
support award was subject to modification.
2
The statute's reference to the "party to whom such relief
might otherwise be awarded" signifies the payee party, who, but
for the existence of the property settlement agreement, would be
entitled to claim spousal support under Code § 20-107.1.
Contrary to husband's assertions, it is irrelevant that husband
did not sign the consent decree, because only wife may be deemed
the "party to whom such relief might otherwise be awarded"
within the meaning of Code § 20-109(B). See Lindsay v. Lindsay,
218 Va. 599, 602-03, 238 S.E.2d 817, 818-19 (1977) (payee
ex-spouse was "party to whom relief might otherwise be awarded"
under Code § 20-109, and was entitled to seek enforcement of
consent decree modifying support award included in earlier final
decree of divorce).
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Because the agreement incorporated into the consent decree
is not subject to modification under Code § 20-109(B), we reject
husband's claim that the trial court erred by not reducing or
eliminating his support obligation. Given the non-modifiable
status of the spousal support obligation, the trial court's
denial of his petition to modify his support obligation was not
erroneous. "'We do not hesitate . . . where the correct
conclusion has been reached but the wrong reason given, to
sustain the result and assign the right ground.'" Beverly
Health and Rehab. Servs., Inc. v. Metcalf, 24 Va. App. 584, 596,
484 S.E.2d 156, 162 (1997) (quoting Robbins v. Grimes, 211 Va.
97, 100, 175 S.E.2d 246, 248 (1970)). Accordingly, we affirm
the trial court's decision to deny husband's requested support
modification.
Reversed in part and
affirmed in part.
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Benton, J., concurring, in part, and dissenting, in part.
In determining whether spousal support ordered in a final
decree of divorce is modifiable, see Code § 20-109(A), the trial
judge must distinguish between (1) court ordered support decreed
pursuant to Code § 20-107.1 and (2) support derived from "a
stipulation or contract signed by the party to whom [support]
might otherwise be awarded" and decreed pursuant to Code
§ 20-109(C). I agree with the majority opinion that the final
decree was not signed by either party; therefore, Code
§ 20-109(C) did not limit the trial judge's authority to modify
the support ordered by the final decree. The final decree
awarded custody of the parties' child to the wife and contained
the following provision regarding spousal support:
ORDERED that [the husband], shall pay [the
wife], the sum of $300.00 per month as
spousal support beginning December 1, 1988,
and on the first day of each succeeding
month until death of either party or
remarriage of Complainant; for any period
when custody of [the child] shall be changed
to [the husband], spousal support shall be
increased to $500.00 per month in lieu of
child support.
I disagree with the majority opinion's conclusion that the
"Consent Order," which the trial judge entered three months
after the final decree, was "a stipulation or contract signed by
the party to whom such relief might otherwise be awarded." Code
§ 20-109(C). The first paragraph of the Consent Order states
that "THIS CAUSE came on to be heard upon the joint motion of
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the parties to voluntarily transfer custody of the parties'
minor child . . . from the [wife] to the [husband] and upon
argument of counsel."
Adjudicating this motion, the Consent Order specifies the
judge's findings and ruling on spousal support as follows:
AND IT APPEARING TO THE COURT that on the
13th day of December, 1988, this court
entered a Decree of Divorce a vinculo
matrimonii, which contained certain
provisions concerning custody of [the
child], rights of visitation, and payments
of support; that subsequent to that date,
the parties have agreed to voluntarily
transfer custody of said child from the
[wife] to the [husband], and to maintain the
same visitation rights for the new
non-custodial parent and to clarify the
issue of support; for other good cause
shown, the motion ought to be granted, it is
hereby
* * * * * * *
ADJUDGED, ORDERED, AND DECREED that the
[husband] shall pay the [wife] the sum of
$500.00 per month as spousal support
beginning on the first day of the month
immediately following the date of the
execution of this agreement, and on the
first day of each succeeding month until the
death of either party or remarriage of the
complainant. . . .
Although, when the Consent Order was presented to the
judge, the wife was acting as her own counsel and signed the
Consent Order in that capacity "pro se," her signature did not
render the Consent Order a "stipulation or contract" for
purposes of Code § 20-109(C). Her signature on the Consent
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Order merely indicated that it was an agreed adjudication of the
issues before the court. In the absence of extraordinary
language in a court's order or decree acknowledging the filing
of "such a stipulation or contract" and the parties' intent to
have a "pro se" signature on that decree or order operate to
invoke the limitations of Code § 20-109(C), the mere entry of a
court order or decree which is signed by a party acting "pro se"
does not satisfy the requirements of Code § 20-109(C).
The statute states that "[i]f such a stipulation or
contract is filed after entry of a final decree and if any party
so moves, the court shall modify its decree to conform to such
stipulation or contract." Code § 20-109(C) (emphasis added).
Thus, I believe the statute contemplates a particular document
signed by the parties, which has been filed with the court, and
a court order, which has been entered to conform with that
document. If the court order itself is to be considered as the
"stipulation or contract," I believe the court order must
clearly specify that it is so and reference the limitations of
Code § 20-109(C). To require any less would engender confusion
as to whether the court order or decree is entered pursuant to
Code § 20-109(A) and (B) or pursuant to Code § 20-109(C).
The record in this case clearly established that, with
respect to spousal support, the Consent Order did no more than
enforce one of the original provisions of the final decree,
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which stated that "for any period when custody of [the child]
shall be changed to [the husband], spousal support shall be
increased to $500.00 per month in lieu of child support." When
the parties agreed to transfer the legal custody of the child
from the wife to the husband per the Consent Order, they also
sought to "clarify" that the condition in the final decree,
which rendered the husband's increased payment to be "in lieu of
child support," was in effect.
For these reasons, I would affirm the trial judge's ruling
that spousal support was modifiable pursuant to Code
§ 20-109(A). I would also affirm the trial judge's refusal to
modify the spousal support. The trial judge found that the wife
lives a "frugal" lifestyle, continues to repay a loan incurred
during the marriage, and that the "surplus in her budget . . .
should [allow her] . . . to repay her contribution to the . . .
retirement system as well as repay the loan." Significantly,
the trial judge ruled "[i]t would be appropriate to review at a
future time [the wife's] needs using the findings made during
this hearing as a benchmark."
The determination of the amount of support that is
warranted is a matter within the discretion of the trial judge.
See Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211
(1986). In determining the needs of the wife, the trial judge
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thoroughly analyzed the financial evidence in the record. I
find no abuse of discretion.
For these reasons, I would affirm the judgment.
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