Opinion
Record No. 0084-92-3
December 15, 1992
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY DONALD R. MULLINS, JUDGE.
James R. Henderson (Henderson and DeCourcy, P.C., on briefs), for appellant.
Jackson E. Reasor, Jr. (Robert M. Galumbeck; Galumbeck, Simmons Reasor, on brief), for appellee.
Present: Chief Judge Koontz, Judges Moon and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
On August 10, 1977, the parties, having separated, entered into a separation agreement that provided, in part:
Husband will make periodic payments to Wife of unspecified and undesignated sums of money for her support and maintenance. The amounts to be paid are left undesignated in this Agreement because of the uncertainty surrounding Husband's employment in the coal industry.
On August 24, 1978, Mrs. Little sued for separate maintenance. Mr. Little filed a cross-bill seeking a divorce. By decree entered November 6, 1980, the trial court granted Mr. Little a divorce a vinculo matrimonii on the ground of one year separation, ratified, approved and confirmed the separation agreement, held the support provision of the agreement to be unenforceable, and dismissed the bill for separate maintenance. The decree stated, in pertinent part:
[Mrs. Little] is not entitled to the relief prayed for in her bill for separate maintenance due to the fact that the provision in the Stipulation Agreement entered into between the parties is not enforceable by this Court because said Agreement leaves any payments to be considered alimony to be paid at the discretion of the defendant. . . .
[I]t is further ADJUDGED, ORDERED and DECREED that the separation agreement entered into between the parties be, and the same hereby is, ratified, approved and confirmed.
This decree was not appealed and became final.
On November 26, 1991, the trial court reinstated Mrs. Little's separate maintenance suit pursuant to Code § 8.01-335(A), and by decree entered December 17, 1991, it ordered Mr. Little to pay Mrs. Little $400 per month "as her support and maintenance." In both rulings, the trial court erred.
Code § 8.01-335(A) provides, in pertinent part:
[A]ny court in which is pending an action, wherein for more than two years there has been no order or proceeding, except to continue it, may . . . order it to be struck from its docket and . . . discontinued. . . . Any case discontinued under the provisions of this subsection may be reinstated . . . within one year from the date of such order but not after.
(Emphasis added). Code § 8.01-335(A) had no application to this case. The action was not pending. It had been concluded by the final decree of November 6, 1980. It was never stricken and discontinued pursuant to Code § 8.01-335(A). Furthermore, the order of reinstatement, dated November 26, 1991, was entered more than one year after the November 6, 1980 order of dismissal.
Because the November 6, 1980 decree did not incorporate the provisions of the separation agreement, those provisions were not enforceable as elements of the decree. However, by ratifying, approving and confirming the agreement, the trial court thereby determined it to be binding between the parties. See Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157 (1985). The decree specifically held that the spousal support provision of the agreement was unenforceable, and it denied the prayer for separate maintenance based on that provision. Thus, the decree plainly held that provision to be invalid. Under familiar principles, a decree should be construed so as to be internally consistent. See Parrillo v. Parrillo, 1 Va. App. 226, 336 S.E.2d 23 (1985). The November 6, 1980 decree plainly confirmed as enforceable between the parties all the provisions of the separation agreement, except for the spousal support provision, which it ruled invalid. This holding, which became final, isres judicata between the parties.
The final decree of divorce contained no reservation of the right of spousal support. This foreclosed a later award of support based on the prior relationship of the parties.See Perry v. Perry, 202 Va. 849, 120 S.E.2d 385 (1961);Thomasson v. Thomasson, 225 Va. 394, 302 S.E.2d 63 (1983).
The judgment of the trial court is reversed.
Reversed.