Download as PDF
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Kulp ∗
Argued at Richmond, Virginia
DONALD J. PONTON
MEMORANDUM OPINION ∗∗ BY
JUDGE ROBERT J. HUMPHREYS
AUGUST 22, 2000
Record No. 0709-99-2
CHERYL J. PONTON
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Homer C. Eliades (Eliades and Eliades, on
brief), for appellant.
Charles W. Beddow (Beddow, Marley, Trexler &
Fitzhugh, on brief), for appellee.
Donald J. Ponton (husband) appeals a February 22, 1999
order of the circuit court mandating that he pay his former
wife, Cheryl J. Ponton (wife), spousal support arrearage from
January 1, 1996.
For the reasons that follow, we reverse the
order of the circuit court.
In 1994, wife petitioned the Juvenile and Domestic
Relations District Court ("JDRC") of Chesterfield County for
Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
child and spousal support from her estranged husband.
regard to the spousal support, the JDRC ordered husband to pay
wife $200 per month.
Wife appealed this order to the circuit
court, which granted her spousal support of $375 per month by
its order of November 10, 1994.
Subsequently, on January 31,
1995, the circuit court transferred all matters pertaining to
"custody, visitation and child support of the minor children and
spousal support to the Juvenile and Domestic Relations [Court]"
pursuant to Code § 20-79(C), and struck the matter from its
Approximately one year later, on February 8, 1996, wife and
husband entered into a written Separation and Property
Settlement Agreement ("Agreement") which provided the following
regarding spousal support:
21. Support and Maintenance of Wife:
Wife's current support and maintenance by
Husband's payments by order of Court are set
at $375.00. Beginning with January 1, 1996
the support and maintenance payments by
Husband to Wife shall be reduced to $200.00
monthly with Husband's payments to continue
to the last month Wife is required to pay a
monthly payment of $200.00 to NationsBank
. . . .
Following payment by Wife of her
obligation herein to pay NationsBank . . .
Husband's obligation to pay support and
maintenance to Wife shall be reduced to
$1.00 annually . . . .
The Agreement also stated the following:
4. Subsequent Divorce: Husband and Wife
anticipate a divorce. Upon presentation to
- 2 -
the Court of a sketch for a final decree of
divorce, Husband and Wife agree to request
the Court to affirm, ratify and incorporate
this Agreement . . . into said decree. . . .
Husband and Wife agree to be bound hereby in
Husband later filed for divorce in the circuit court.
June 20, 1996, husband was granted a divorce a vinculo
matrimonii from wife.
The decree entered by the circuit court
on that date stated the following, in pertinent part:
It is further appearing to the Court
that the parties have entered into a[n]
. . . Agreement dated the 8th day of
It is therefore ORDERED that the Court
doth affirm, ratify and incorporate into
this Decree by reference hereto, the . . .
Agreement between the parties dated February
8, 1996, pursuant to § 20-109.1 . . . .
The Juvenile and Domestic Relations
Court for the County of Chesterfield having
exercised jurisdiction over the custody,
visitation and support and maintenance of
the parties' infant children, plus spousal
support for defendant, this Court exercises
no jurisdiction over those issues.
And it appearing that nothing remains
to be done in this matter, the same is
stricken from the docket of this Court
. . . .1
In accord with the decree of divorce and the Agreement,
husband began paying wife $200 per month, instead of $375 per
month, on January 1, 1996.
In 1998, wife petitioned the JDRC
There was no § 16.1-244(A) hearing held in the divorce
- 3 -
for an order calculating the amount of spousal support payments
actually due, pursuant to the orders entered over the previous
Specifically, wife argued that the circuit court had no
jurisdiction over matters of spousal support when it entered the
Accordingly, she claimed that the correct
amount of spousal support was $375 per month, as first ordered
by the circuit court, and that husband owed her an arrearage of
support of $175 per month, dating back to January 1, 1996 when
he began paying the lower support payment.
Husband also filed a
motion to terminate spousal support payments due under the
Agreement and decree, claiming that certain obligations under
the Agreement had been met and that spousal support was no
longer required under the Agreement and decree.
were denied by the JDRC.
Wife appealed the decision to the circuit court.
de novo hearing, the circuit court found that the provisions of
the Agreement regarding spousal support were not incorporated
into the final decree of divorce and ordered husband to pay wife
spousal support arrearage in the amount of $175 per month from
January 1, 1996.
It is this order of the circuit court which we
review on appeal.
Wife also asked the JDRC for an increase in child support
payments, which was ultimately granted by the circuit court but
is not a subject of this appeal.
- 4 -
Code § 16.1-244(A) specifically empowers the circuit court,
concurrently with JDRC, "to determine spousal support in a suit
for separate maintenance.
However, when a suit for divorce has
been filed in a circuit court, in which . . . spousal support is
raised by the pleadings and a hearing is set by the circuit
court on . . . such issue . . . within twenty-one days of the
filing, the juvenile and domestic relations district courts
shall be divested of [jurisdiction] . . . ."
By its express
language, this statute provides for a divestiture of
jurisdiction of the JDRC in certain instances.
is no language suggesting that the circuit court can also be
divested of jurisdiction.
In light of the above, wife's argument that the circuit
court lacked jurisdiction to act with regard to spousal support
matters lacks merit.
In fact, this Court has held that even
when a circuit court transfers matters to the JDRC pursuant to
Code § 20-79(c), subsequent to a suit for divorce under Code
§ 16.1-244(A), "[it] retains . . . continuing jurisdiction over
Crabtree v. Crabtree, 17 Va. App. 81, 87, 435
S.E.2d 883, 887 (1993).
Moreover, wife erroneously relies on
Calfee v. Calfee, 29 Va. App. 88, 509 S.E.2d 552 (1999), to
support her argument.
In Calfee, this Court recently reiterated
that "[a] decree or order of the circuit court emanating from a
'suit for divorce,' after displacing the jurisdiction of the
- 5 -
[JDRC], may be transferred to such court for enforcement or
related matters, thereby restoring concurrent jurisdiction in
both courts, without impairing the properly invoked exercise of
jurisdiction by the circuit court over the transferred issues."
Id. at 94-95, 509 S.E.2d at 555.
In addition, the circuit court's statement in its order of
June 20, 1996 that it "exercise[d] no jurisdiction over issues
[of spousal support]" is without consequence.
The court's very
actions, as well as its 1996 order, are contrary to its
statement pertaining to jurisdiction.
The circuit court very
clearly exercised jurisdiction over the parties' Agreement and
specifically approved and incorporated the entire Agreement into
the divorce decree, including the provisions regarding spousal
In fact, pursuant to Code § 20-109, the circuit court was
bound by statute to recognize and follow the Agreement.
section provides the following, in pertinent part:
if a stipulation or contract signed by the
party to whom such relief might otherwise be
awarded is filed . . . 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. . . .
In addition, this Court has found that "[this] statute
. . . expressly permits a court to incorporate only selected
- 6 -
provisions of the agreement if it so desires.
[a]lthough incorporation in whole or in part is not mandatory
. . . [where] the divorce decree incorporated the property
settlement agreement . . . without specific exception[,] . . .
the language used . . . [would serve] to incorporate the entire
property settlement agreement without exception."
Hill, 16 Va. App. 229, 232, 429 S.E.2d 37, 38-39 (1993)
The circuit court in this case clearly
incorporated the entire Agreement into the decree, and it set
forth no specific limitations to indicate a contrary intention.
Wife's argument that Code § 20-109 cannot apply to this
case because, as of 1994, when she filed her original petition
for support in the JDRC, the code section did not contain a
reference to Code § 16.1-241(L), is also erroneous.
§ 16.1-241(L) addresses jurisdiction of the JDRC, as well as the
circuit courts in suits for separate maintenance.
The case at
issue is not a suit for separate maintenance, but a divorce
proceeding pursuant to Code § 16.1-244(A).
Supreme Court of Virginia has recognized that Code § 20-109 and
§ 20-109.1 "merely codified the preexisting power of a divorce
court to incorporate a settlement agreement in a decree and to
enforce it through its contempt power."
Rogers v. Damron, 23
Va. App. 708, 713-14, 479 S.E.2d 540, 543 (1997) (emphasis
- 7 -
Wife also contends that our consideration of this appeal on
grounds of Code § 20-109 is barred based on the failure of the
statement of facts to show that husband made this specific
contemporaneous objection to the trial court's ruling.
conclude, however, that this appeal is not barred.
statement of facts submitted in lieu of the transcript contains
no mention of any objection to the trial court's ruling on this
basis, the final order of February 22, 1999, as signed by
counsel for appellant, reads "Seen and objected to."
counsel failed to include specific grounds for the objection, as
is generally required by Rule 5A:18, the ruling made by the
trial court was narrow enough to make obvious the basis of
Accordingly, we hold that we may
consider the merits of appellant's assignment of error on this
See Mackie, 16 Va. App. at 231, 429 S.E.2d at 38.
Finally, and most importantly, we emphasize that in
Virginia, property settlement agreements are contracts.
"Incorporation [of these agreements by the court] does nothing
more than allow the court to enforce the contract[s] through its
contempt powers pursuant to Code § 20-109.1.
not a prerequisite to the binding effect of the contract as
between the two parties."
336 S.E.2d 157, 163 (1985).
Parra v. Parra, 1 Va. App. 118, 129,
Thus, even if not incorporated, it
is clear that the Agreement is still enforceable as a contract,
"[as] it has been recognized in Virginia that 'marital property
- 8 -
settlements entered into by competent parties upon valid
consideration for lawful purposes are favored in the law and
such will be enforced unless their illegality is clear and
Id. at 128, 336 S.E.2d at 162 (quoting Cooley v.
Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980)).
To hold otherwise would not only fail to
give full effect to the property division
statutes, but also would fail to support
Virginia's public policy in favor of prompt
resolution of property disputes in divorce
cases through voluntary court-approved
agreements. If divorce litigants know that
they may repudiate, with impunity, valid
property settlement agreements in hopes of
getting a better result from the court, or
because they no longer wish to honor their
commitments, the usefulness and validity of
all such contracts will be lessened.
Parra, 1 Va. App. at 129, 336 S.E.2d at 163.
We see no reason
why the court should allow a party to avoid the consequences of
a valid contract.
Accordingly, the decision of the circuit court is reversed
and this matter is remanded for entry of an order in accordance
with the terms of the parties' incorporated Agreement.
Reversed and remanded.
- 9 -