dissenting.
It is evident from the excellent opinion Judge Gregory has written that he gave the case very careful study. Incidentally, however, the last sentence of the second paragraph, “Thus the decree for the alimony became a finality,” would seem an inappropriate form of expression in view of the decision ultimately arrived at.
I.
Despite the cogency of much of the reasoning in the opinion, it seems to me to lack convincing force as regards the pivotal question in the case. In the last analysis, I take it that that question is, Did the decree of July 25, 1929, confer upon the wife a vested property interest in the alimony thereby awarded her? If it did, then the amendment of 1938 to section 5111 of the Code is unconstitutional and void so far as that decree is concerned. If it did not, then it was competent to the General Assembly, by that amendment, to authorize the court to modify the award or even to abrogate it entirely.
The weight of authority, on which side) is the well-reasoned Livingston Case, supra, 173 N. Y. 377, 66 N. E. 123, 93 Am. St. Rep. 600, 61 L. R. A. 800, it seems to me *343represents the sound view. That case holds that an award of permanent alimony confers upon the wife a vested right of property where, as in that case and in this one, the decree contains no reservation of jurisdiction and no statute exists giving the court power thereafter to reopen the case and modify the award.
In the present opinion that doctrine is rejected, the sweeping statement being made concerning alimony that “None of the attributes of property attaches to it.” And that broad generalization is followed by certain specific averments touching alimony, such as that it cannot be sold or otherwise transferred, that it is not subject to execution or attachment, etc. But, conceding that alimony is inalienable; that it is not transmissible by inheritance nor bequeathable by will; that it is not treated as an asset in bankruptcy proceedings; that it is not subject to execution or attachment; and that it is not taxed as income of the wife—no one of those things, nor do all of them combined, alter the sober and irrefragable fact that as to the wife it is property, and property of the most real sort, indeed her very living in most cases. And it is its nature and function as regards the wife herself that is the sole point for consideration in this connection; and, as I view the question, the relationship of the decreed alimony to her economic welfare, and its significance in that respect, are all-sufficient reasons for treating it as property.
Moreover, the absence of certain attributes and amenabilities commonly associated with the idea of property is by no means peculiar to alimony. There are many other instances known to the law where property—admittedly such —is held and enjoyed by a person without the power of disposing of it. Besides, certain things are treated as not being assets in bankruptcy proceedings, and certain others are made exempt from execution, attachment and taxes, not because they are not property, but for the very, reason that they are property in an emphatically real and essential sense as respects the owner.
*344Furthermore, it seems to me that this view of the matter is much more in line with the attitude and course the court heretofore has taken concerning alimony decrees, as indicated by such well-considered opinions as those in Brinn v. Brinn, 147 Va. 277, 137 S. E. 503, and Golderos v. Golderos, 169 Va. 496, 194 S. E. 706, than is the present decision.
II.
There is another reason, I think, why the decree of July 25, 1929, should be held an inviolable finality.
The original decree already having been modified twice by the trial court, it appears that when the one of July 25, 1929, was entered the defendant expressly requested that it include a reservation of jurisdiction. This request the chancellor declined to grant. The defendant then petitioned the Court of Appeals to review and reverse the decree, partly on the ground that the trial court had refused to grant jurisdiction. The petition for appeal was denied. Thus it would seem that if it be possible for the courts of this State ever to give to their decrees the quality of finality it was done in this instance.
And having exhausted their power to make the decree of July 25, 1929, absolutely final, it would appear that the General Assembly was without the constitutional power even to authorize the court to modify it. This because the rights of the beneficiary of the decree had become fixed, and upon the ground that such action on the part of the legislative branch of the government would be an unconstitutional invasion of the judicial branch. In Ratcliffe v. Anderson, 31 Gratt. (72 Va.) 105, 31 Am. Rep. 716, the court, in an opinion by Judge Christian, said:
“Both upon principle and authority I conclude that the legislature has no right, directly or indirectly, to annul in whole or in part a judgment or decree of a court already rendered, or to authorize the courts to reopen and rehear judgments and decrees already final, by which the rights of the parties are finally adjudicated, fixed and vested; and *345that every such attempt of legislative action is plainly an invasion of judicial power and therefore unconstitutional and void.”
With non-essentials wiped away, the issue in this cause simmers down to this: Was the decree of July 26, 1929, a final decree or was it not a final decree? If it was a final decree, it can not at this late date be set aside; if it was not, then there has never been a final decree in any suit for divorce with alimony, though the record be stricken from the docket, and filed among ended causes.
To this last proposition I can not assent and so must dissent.