Opinion
Record No. 2502-92-4
March 15, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. BRUCE BACH, JUDGE.
William B. Cummings for appellant.
Edward V. O'Connor, Jr. (Lewis, Dack, Paradiso, O'Connor Good, on brief), for appellee.
Present: Chief Judge Moon, Judges Willis and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Joel E. Hoffman (husband) appeals a November 13, 1992 order of the trial court which "affirmed, ratified and incorporated" the parties' property settlement agreements pursuant to Code § 20-109.1. On appeal, husband argues that the trial court erred by incorporating the parties' property settlement agreements because such incorporation was beyond the terms of the parties' agreements and, thus, forbidden by Code § 20-109. We agree and reverse the judgment of the trial court.
BACKGROUND
This case involves an appeal of the trial court's November 13, 1992 decree "incorporating" a 1984 support agreement and a 1985 equitable distribution agreement into the parties' June 1985 consent divorce decree. Each of the agreements provided that in any subsequent divorce decree: "this Agreement shall be introduced and the Court shall approve, ratify and confirm it; provided, however, that this agreement shall not be merged in any such judgment or decree."
The parties were divorced on June 3, 1985. The final decree of divorce stated:
The aforesaid agreements between the parties, dated December 31, 1984 and March 21, 1985, respectively, be and they hereby are affirmed, ratified and approved by this Court, pursuant to Section 20-109.1 of the Code of Virginia, 1950, as amended, provided, however, that neither of said agreements shall be merged into this Final Decree of Divorce but shall survive the entry of this decree and be enforceable otherwise.
(Emphasis added.)
On July 22, 1992, wife filed a "petition to reduce support arrearages to judgment," alleging that husband had failed to make all of the support payments required under the terms of their agreements and that "[e]ach payment as it became due became vested and created a judgment by operation of law." Husband filed a motion to dismiss, alleging that the circuit court lacked equity jurisdiction because the agreements were not "incorporated" into any final decree, and that wife had an adequate remedy at law.
Wife, in her response to husband's motion to dismiss, argued that the circuit court had jurisdiction to enforce the terms of the parties' two agreements pursuant to Code § 20-109.1, and in the alternative, "[i]f the [trial] court deems the agreement merely approved by the Final Decree of Divorce, then the [wife] respectfully requests that the Court now incorporate the December 31, 1984 and March 21, 1985 Agreements pursuant to Section 20-109.1 of the Code of Virginia, as amended."
The trial court denied husband's motion to dismiss, and heard the wife's petition on November 13, 1992. No evidence was presented at the hearing; however, the court heard argument from both counsel and granted wife's alternate request to incorporate the property settlement agreements. The trial court's order of November 13, 1992, provides, in part:
ORDERED, that the parties' Property Settlement Agreement dated December 31, 1984 and the Property Settlement Agreement dated March 21, 1985, be and they hereby are affirmed, ratified and incorporated pursuant to Section 20-109.1.
CONSISTENT TERMS OF SPOUSAL SUPPORT AGREEMENT AND DECREE
Husband argues, inter alia, that the trial court was without authority to incorporate the parties' property settlement agreements into a decree of the court, because the terms of the agreements do not provide for such incorporation. We agree.
Code § 20-109 provides, in 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 or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract.
(Emphasis added.)
In this case, the parties filed their property settlement agreements before the entry of the final decree of divorce. The agreements were considered and "affirmed, ratified and approved" by the court at that time. Accordingly, Code § 20-109 limited decision on questions of spousal support and maintenance to the terms of the contract between the parties. Harris v. Harris, 217 Va. 680, 681, 232 S.E.2d 739, 741 (1977); Owney v. Owney, 8 Va. App. 255, 260, 379 S.E.2d 745, 748 (1989). The parties' property settlement agreements do not provide for incorporation of the agreements into a decree of the court. Their use of the phrase, "be enforceable otherwise," expresses the parties' intention that the agreements will not be enforced through the contempt power of the divorce court.
It is well settled in Virginia that mere affirmance, ratification and approval of a property settlement agreement is not the same as incorporation of an agreement into a decree of the court. In Rodriguez v. Rodriguez, 1 Va. App. 87, 334 S.E.2d 595 (1985), we explained that there is a difference in:
the effect of a divorce decree that approves a contract between the parties without specifically incorporating the contract or ordering the husband to perform its obligations, and a divorce decree that specifically incorporates the contract or orders the husband to perform its obligations. In the former, the decree is an approval of a private contract and may not be enforced in the divorce suit, whereas in the latter situation, the court may enforce the agreement through its contempt powers.
Id. at 90, 334 S.E.2d at 597; see also Fry v. Schwarting, 4 Va. App. 173, 178, 355 S.E.2d 342, 345 (1987). Because of the significant difference in the enforceability of incorporated and non-incorporated property settlement agreements, we conclude that the trial court's November 13, 1992 decree violated the provisions of Code § 20-109, which prohibits the court from entering a spousal support order beyond the terms of the parties' previously filed agreement.
For the reasons set forth above, we hold that the trial court erred when it entered the November 13, 1992 order "incorporating" the parties' property settlement agreements. Accordingly, we reverse the judgment and vacate the decree. Reversed and vacated.
Because of our disposition, we do not reach husband's additional questions presented on appeal.