RODRIGUEZ v. RODRIGUEZ

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Docket Number

44847 No. 0117-84

Attorney(S)

John E. Gullette, for appellant. Thomas O. Murphy and J. Edward Flournoy, for appellee.

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Smart Summary

Factual and Procedural Background

Ida Lee Rodriguez obtained a divorce a vinculo matrimonii from Julius Joseph Rodriguez by decree entered February 9, 1977, in the Circuit Court of Prince William County. On September 13, 1975, the parties executed a "property settlement and custody agreement" stating, among other things, that custody and child support would continue until the children reached age twenty-five; at that time the children were ages nine and four. The 1977 divorce decree "approved, ratified and confirmed" the agreement settling property. Over the years multiple hearings were held concerning child support. By order entered November 23, 1984, the Chancellor held that Julius remained obligated to pay child support for both children and ordered continuation of payments even though one child had attained age eighteen. Julius appealed from the November 23, 1984 order.

Legal Issues Presented

Whether the language of the 1977 divorce decree sufficiently complied with the provisions of Code Sec. 20-109.1 so as to make the child support provisions of the parties' 1975 agreement a term of the decree and enforceable as such.
Whether the trial court had jurisdiction in 1984 to order continuation of child support for a child who had reached majority absent incorporation of the agreement's child support provisions into the divorce decree.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 866-67 (1975).	The proposition that where a court affirms, ratifies and incorporates an agreement or provisions thereof, those provisions become terms of the decree and are enforceable, including by the court's contempt power.	Cited to explain that Code Sec. 20-109.1 permits incorporation and that incorporation facilitates enforcement by contempt.
Shoosmith v. Scott, 217 Va. 789, 232 S.E.2d 787 (1977).	The distinction between a divorce decree that merely approves a contract and one that specifically incorporates it or orders performance — only the latter is enforceable in the divorce proceeding by contempt.	Cited to support the rule that approval alone does not make the contract enforceable as part of the decree, while incorporation or an express order to perform does.
Cutshaw v. Cutshaw, 220 Va. 638, 641, 261 S.E.2d 52, 54 (1979).	That a parent may contract to support children after their minority and that such a contract, if incorporated into the divorce decree, is enforceable in the divorce court.	Used to confirm that post-majority support provisions are enforceable only if incorporated into the decree.
Eaton v. Eaton, 215 Va. 824, 213 S.E.2d 789 (1975).	Authority addressing the statutory nature of the divorce court's jurisdiction over support and related principles bearing on termination at majority absent agreement.	Cited as supporting authority for the principle that a divorce court's jurisdiction to provide support ends at majority unless an agreement incorporated into the decree provides otherwise.
Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974).	Authority addressing the limits of the divorce court's statutory jurisdiction over support after a child reaches majority.	Cited alongside Eaton and Cutshaw to show that jurisdiction to provide support normally terminates at majority in absence of an incorporated agreement.

Court's Reasoning and Analysis

The Court began with Code Sec. 20-109.1, which authorizes a court to "affirm, ratify and incorporate by reference in its decree any valid agreement between the parties" concerning maintenance, custody and support, and states that when incorporated such agreements are terms of the decree and enforceable (including by contempt). The Court distinguished the statutory language authorizing a court to "affirm, ratify and incorporate" from the divorce decree's language that the agreement was "approved, ratified and confirmed." The Court held that the latter wording merely approves a private contract and does not have the same legal effect as incorporation under Code Sec. 20-109.1.

The Court emphasized two defects in the 1977 decree: (1) the decree's language related to settling property and child support is not a "property right" and thus the custody/child support provisions were not included by that property-focused approval; and (2) the decree did not use the incorporation language of Code Sec. 20-109.1 nor did it contain an express order directing the father to pay child support. Because of these defects, the child-support provision of the 1975 agreement was not a term of the decree and thus not enforceable as part of the decree.

The Court further explained that the divorce court's jurisdiction to order support is statutory (Code Secs. 20-103 through 20-109.1) and that, absent an incorporated agreement, that jurisdiction terminates when a child reaches majority. Applying these legal principles, the Court concluded the Chancellor lacked jurisdiction in 1984 to order continuation of support for the child who had reached majority.

Holding and Implications

Holding: The Court reversed the Chancellor's November 23, 1984 order insofar as it continued child support for the child who had reached majority, and remanded for further proceedings consistent with the opinion. The opinion concludes with the notation: Reversed and remanded.

Implications: The direct consequence is that the order continuing support for the child who had attained majority was vacated; the decision leaves intact the Chancellor's provisions concerning the child who had not reached majority and does not disturb other remedies the appellee may have to enforce her agreement. The opinion rests on statutory interpretation and application of existing Virginia precedent regarding incorporation of agreements into divorce decrees and does not announce a novel legal rule beyond those applications.

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JULIUS JOSEPH RODRIGUEZ v. IDA LEE (KING) RODRIGUEZ

(1) Domestic Relations — Spousal and Child Support — Enforcement — Under Code Sec. 20-109.1, a court may incorporate by reference in its decree a valid agreement between the parties concerning, inter alia, spousal and child support; where such an agreement is incorporated, it is enforceable as part of the decree.

(2) Domestic Relations — Spousal and Child Support — Enforcement. — If a divorce decree merely "approves" an agreement as to spousal and child support without incorporating it into the decree, it may not be enforced as part of the divorce proceeding.

(3) Domestic Relations — Child Support — Children Over the Age of Eighteen. — A parent may contract to support children after they reach the age of eighteen and, if incorporated into the decree, such a contract is enforceable in the divorce court.

(4) Domestic Relations — Spousal and Child Support — Enforcement. — A decree which merely "approved, ratified and confirmed" a settlement agreement does not have the same effect as a decree which "affirms, ratifies and incorporates" an agreement; the latter language makes the agreement a part of the decree and enforceable as such.

(5) Domestic Relations — Child Support — Children Over the Age of Eighteen. — Once a child reaches majority, the jurisdiction of the divorce court to provide for support terminates unless otherwise provided by agreement incorporated into the decree.

SUMMARY

Husband and wife entered into a property settlement and custody agreement which provided that the husband would pay child support until such time as the children reached the age of twenty-five years. At the time of the final decree of divorce, the trial court "approved, ratified and confirmed" the agreement. Subsequently, the court ordered the husband to continue child support payments even though one of the children was over the age of eighteen (Circuit Court of Prince William County, Percy Thornton, Jr., Judge).

The Court of Appeals reversed, holding that since the child support provision of the agreement was not incorporated as part of the decree it was not enforceable as part of the decree.

Reversed and remanded.

OPINION

KOONTZ, C.J.

Ida Lee Rodriguez obtained a divorce a vinculo matrimonii from Julius Joseph Rodriguez by decree entered on February 9, 1977, in the Circuit Court of Prince William County. On September 13, 1975, these parties had entered into a "property settlement and custody agreement in accordance with Sec. 20-109, 1950 Code of Virginia." This agreement in pertinent part provided that Ida would have custody of the two children of the parties "until such time as the said children arrive at the age of twenty-five years of age" and, further, that Julius would pay child support in the amount of $160.00 per week "until such time as both children shall arrive at the age of twenty-five years, at which time the support of the children shall be extinguished automatically and without application to any court of law." At the time of this agreement the children were ages nine and four.

Over the objection of Julius, who challenged the validity of this agreement, the Chancellor's divorce decree contained the following provision:

And it further appears to the court that the parties hereto have entered into an agreement in writing for the settlement of their respective marital property rights dated the 13th day of September, 1975, it is further

ADJUDGED, ORDERED and DECREED that the terms of said agreement settling property be and are hereby approved, ratified, and confirmed, and the marital rights of eahc (sic) in the property of the other are hereby extinguished. (emphasis added).

Numerous hearings were held during the ensuing years for increases or decreases in the amount of child support. Finally, by order entered on November 23, 1984, the Chancellor held that Julius remained obligated and ordered him to continue to pay child support for both children even though one child was over the age of eighteen. This order contains the following language:

Defendant remains obligated to support the child, Durwin J. Rodriguez, who has attained the age of eighteen as required by the property settlement and custody agreement of September 13, 1975, which was approved, ratified and confirmed in the final decree of divorce entered February 9, 1977.

It is from the entry of this order that Julius appeals to this Court.

The issue presented in this case is whether the language of the 1977 divorce decree sufficiently complies with the provisions of Code Sec. 20-109.1 so as to make the child support provisions of the parties' agreement of 1975 a term of the decree and enforceable in the same manner as any provision of that decree. We hold that it does not.

(1) Code Sec. 20-109.1 provides that a court may affirm, ratify and incorporate by reference in its decree any valid agreement between the parties, or provisions thereof, concerning the conditions of the maintenance of the parties, or either of them and the care, custody and maintenance of their minor children, or establishing or imposing any other condition or consideration, monetary or nonmonetary. This language does not mandate the court to incorporate the agreement in whole or in part. More significantly, the court is expressly permitted to incorporate selected provisions of the agreement. Where the court does affirm, ratify and incorporate the agreement or provisions thereof, it shall be deemed for all purposes to be a term of the decree and enforceable as such. This code section facilitates enforcement of the terms of an incorporated agreement by the contempt power of the court. Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 866-67 (1975).

(2) The Supreme Court in Shoosmith v. Scott, 217 Va. 789, 232 S.E.2d 787 (1977), distinguished 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.

(3) It is well settled that a parent may contract to support children after their minority, and if incorporated into the divorce decree, such a contract is enforceable in the divorce court. Cutshaw v. Cutshaw, 220 Va. 638, 641, 261 S.E.2d 52, 54 (1979).

In the instant case, the Chancellor had jurisdiction in the 1984 proceeding to order the continuation of child support for the child who was over eighteen years of age only if the child support provisions of the agreement of the parties had been incorporated into the 1977 divorce decree. In that regard, the provisions of the divorce decree are defective in two respects.

(4) In the first instance, the provisions of the agreement concerning "settling property" were approved, ratified and confirmed. Child support is not a property right of the custodial parent and consequently the provisions for such child support were not included in the divorce decree.

In the second instance, the language of the divorce decree which "approved, ratified and confirmed" the settlement agreement does not have the same effect as the language of Code Sec. 20-109.1 which provides that a court may "affirm, ratify and incorporate" an agreement. The former merely approves the agreement of the parties while the latter makes the agreement a part of the divorce decree and enforceable as such. Finally, nowhere in the divorce decree is there language ordering the father to pay child support. Therefore, under the facts presented here, the Chancellor lacked jurisdiction to order the father to continue to pay child support once the child attained the age of majority.

(5) The jurisdiction of the divorce court to provide for child support pursuant to a divorce is purely statutory. Code Sec. 20-103 through 109.1. Once the child reaches majority, the jurisdiction of the divorce court to provide for his or her support and maintenance terminates unless otherwise provided by agreement incorporated into a divorce decree. Cutshaw v. Cutshaw, 220 Va. at 641, 261 S.E.2d at 54; see Eaton v. Eaton, 215 Va. 824, 213 S.E.2d 789 (1975); Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974).

Accordingly, the order of November 23, 1984, insofar as it pertains to the child who has reached his majority, will be vacated and this cause remanded for further proceedings consistent with the views expressed herein. Nothing in this opinion is to be interpreted as affecting the provisions of the Chancellor's order concerning the child who has not passed his minority or as affecting any other remedies the appellee may have to enforce the provisions of her agreement with the appellant.