Opinion
Record No. 1493-92-3
April 13, 1993
FROM THE CIRCUIT COURT OF PULASKI COUNTY WILLIS A. WOODS, JUDGE.
(Joseph B. Shumate, pro se, on briefs).
(Richard F. Pence; Richard E. Viar; Dodson, Pence, Viar, Woodrum Mackey, on brief), for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Joseph B. Shumate appeals a ruling of the trial judge imposing a judgment against him and in favor of his former wife, Pauline B. Shumate, for $145,060.00 in unpaid spousal support and $49,869.80 in interest. Mr. Shumate alleges that the trial judge erred in refusing to abate the support payments retroactive to June 1, 1984, the date of his bankruptcy, and erred in awarding interest. Upon reviewing the record and briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the trial court.See Rule 5A:27.
The parties entered into a post-nuptial agreement. The agreement was affirmed, ratified and incorporated into the final divorce decree. Code § 20-109.1. Under the terms of the agreement, Mr. Shumate is to pay wife $1,500 per month until Ms. Shumate dies or remarries. The agreement provides that the "support payments are hereby made contractual and shall not be susceptible of adjustment except by the written mutual agreement of the parties." Mr. Shumate erroneously contends that the trial judge had authority, under Code § 20-109, to modify the spousal support award that had been in effect since 1978.
Code § 20-109 states in pertinent part that "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 . . . shall be entered except in accordance with that stipulation or contract."
Section 20-109 has been strictly construed by the Supreme Court to preclude any modification or elimination of spousal support specified in such an agreement. Harris v. Harris, 217 Va. 680, 232 S.E.2d 739 (1977); Thomas v. Thomas, 216 Va. 741, 222 S.E.2d 557 (1976); Dienhart v. Dienhart, 210 Va. 101, 168 S.E.2d 279 (1969). Thus, the trial judge did not err in denying Mr. Shumate's request for abatement of the spousal support payments.
Mr. Shumate also argues that the trial judge erred in awarding interest on the past-due spousal support. He claims that Ms. Shumate did not plead or argue the award of interest, and, therefore, the award was in violation of Code § 20-78.2.
That section reads as follows:
The entry of an order or decree of support for a spouse . . . under the provisions of this chapter or §§ 20-107.1 through 20-109 shall constitute a final judgment for any sum or sums in arrears. This order shall also include an amount for interest on the arrearage at the judgment interest rate if the person to whom such arrearage is payable requests that interest be charged. However, the burden shall be on the person to whom such arrearage is payable, upon instruction of the court, to compute all interest due at the judgment interest rate as established . . . and furnish this information to the court.
An examination of the record reveals that Ms. Shumate's initial notice referred to the sum sought as being, "exclusive of interest." Moreover, the order entered on December 21, 1987, that was vacated at Mr. Shumate's request, assessed interest. At the evidentiary hearing held after the order was vacated, Ms. Shumate submitted an exhibit specifying the amount of interest claimed. Therefore, Mr. Shumate was alerted to the claim of interest and to the likelihood that interest would be awarded. Mrs. Shumate's counsel fully complied with the requirement of the statute to submit a computation of interest at the judgment interest rate. Accordingly, we find no violation of Code § 20-78.2 in the trial court's award of interest on the judgment.
For the reasons stated, the decision of the circuit court is affirmed.
Affirmed.