COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
RAYMOND A. PENDLETON
OPINION BY
v. Record No. 2055-95-2 JUDGE SAM W. COLEMAN III
JUNE 11, 1996
EVELYN M. PENDLETON
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Donald K. Butler (Morano, Colan & Butler, on
brief), for appellant.
No brief or argument for appellee.
In this appeal, the husband contends that the trial court
erred by ordering an increase in his spousal support obligation.
He asserts that Code § 20-109 1 precluded the court from
1
Code § 20-109 reads:
Upon petition of either party the court may
increase, decrease, or terminate spousal
support and maintenance that may thereafter
accrue, whether previously or hereafter
awarded, as the circumstances may make
proper. However, in suits for divorce,
annulment and separate maintenance, and in
proceedings arising under subdivision A 3 or
L of § 16.1-241, if 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
or consideration, monetary or nonmonetary,
shall be entered except in accordance with
that stipulation or contract. Upon the death
or remarriage of the spouse receiving
support, spousal support shall terminate
unless otherwise provided by stipulation or
contract. If such a stipulation or contract
modifying spousal support where, as here, the parties
contractually agreed upon the amount of spousal support in their
property settlement agreement and the agreement had been approved
and incorporated into the final divorce decree. We agree and
reverse the trial court's modification decree.
Raymond A. Pendleton (husband) and Evelyn M. Pendleton
(wife) separated in July 1986. They entered into a property
settlement agreement, as amended, that divided all of their
property and an amended agreement in which they divided their
property and included a requirement that husband pay wife spousal
support in the amount of $250 per week. The agreement provided
that the court could modify spousal support only if husband
suffered a reduction in wages as a result of involuntary
termination or a medical or physical disability. 2 By order dated
(..continued)
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.
2
The agreement reads:
Support and Maintenance of Wife: . . .
[T]he [support] payments shall terminate upon
the death of either of the Parties, the
remarriage of the Wife, the involuntary
termination or the retirement, which for this
purpose voluntary retirement shall not count
until he reaches the age of 65, of the
husband from Fluor Daniel Corporation. In
the event of the said involuntary termination
or medical or physical disability of the
Husband which results in a reduction of
wages, the payments shall be renegotiated
between the Parties, or shall be set by the
appropriate Court.
It is specifically agreed between the
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February 12, 1992, the trial court "affirmed, ratified, and
incorporated" the parties' agreement into the final decree.
Husband and wife amended the settlement agreement on May 19,
1992 to require husband to pay wife an additional $175 per month
in spousal support. This amendment expressly provided that
husband's spousal support obligation was not otherwise altered or
amended under the settlement agreement and the additional $175
was for the purpose of enabling wife to purchase medical and
hospitalization insurance.
On January 4, 1995, wife filed a motion requesting an
increase in spousal support. Husband filed a motion to dismiss
on the ground that the agreement and provisions of Code § 20-109
precluded the court from being able to modify spousal support.
The trial court denied the motion to dismiss. At the
modification hearing, wife presented evidence which showed that
her monthly expenses exceeded her monthly income. The trial
court ordered an increase in spousal support from $250 to $350
(..continued)
Parties that the said weekly spousal support
payments of Two Hundred Fifty and no/100
($250.00) Dollars per week are to be
continued thereafter for a minimum period of
two hundred, sixty (260) weeks irrespective
of any provisions of this Agreement. This
provision shall further be binding upon the
estate of the Husband, except if the
husband's employment with Fluor Daniel
Corporation is terminated due to medical or
physical disability which results in a
reduction of his wages then the payments
shall be renegotiated between the Parties, or
shall be set by the appropriate Court.
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per week, plus the additional $175 per month that the parties had
included in the amended property settlement agreement in May
1992.
Code § 20-109 authorizes the trial court to modify spousal
support and maintenance upon the petition of either party if the
court determines that there has been a material change in
circumstances that justifies a modification. 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
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." Code § 20-109 (emphasis added).
Parties who are sui juris may bilaterally contract and bind
themselves to the amount of spousal support that one spouse shall
be obligated to pay and to the amount that the other shall be
entitled to receive. Accordingly, where, as here, the parties
have agreed to a sum of spousal support and the agreement has
been incorporated into the final decree of divorce, the trial
court does not have the authority to modify support, except as
provided in the agreement. Parrillo v. Parrillo, 1 Va. App. 226,
228, 336 S.E.2d 23, 24 (1985).
Here, husband and wife entered into a valid settlement
agreement which specified the amount of spousal support he would
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pay and she would receive. Wife did not object when the trial
court affirmed, ratified, and incorporated the agreement into the
final divorce decree. The trial court held that it could modify
the agreement because it contained the provision that it "shall
be construed and governed in accordance with the law of the State
of Virginia." The trial court ruled that because "the law of the
State of Virginia" allows it to modify spousal support, it had
the power to do so.
The court's construction of this general language is in
direct conflict with the specific provisions of Code § 20-109,
which recognize the right of the parties to contract and bind
themselves as to spousal support. The contract's pronouncement
that the agreement "shall be construed and governed in accordance
with the law of Virginia" was a choice of laws provision that
designated which state's law would govern the construction of the
contract and did not grant the trial court the authority to
modify spousal support contrary to the contract and Code
§ 20-109. Accordingly, we hold that the trial court exceeded its
authority under Code § 20-109 by overruling husband's motion to
dismiss and by modifying the support agreement and decree. We
reverse and remand the case to the trial court to vacate the
modified support award and to reinstate the former support award.
Reversed and remanded.
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