Pendleton v. Pendleton

                   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




                                 - 4 -
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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