COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

KENNETH C. UMSTEAD 

 MEMORANDUM OPINION*

v. Record No. 2763-95-1 PER CURIAM 

 JUNE 25, 1996 

VIRGINIA K. UMSTEAD, N/K/A 

 VIRGINIA K. JERNIGAN 

 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

E. Preston Grissom, Judge 

 (Gregory S. Duncan, on briefs), for 

appellant. 

 (Donald G. Wise; Melvin J. Radin; Wise & 

Wise, on brief), for appellee. 

 Kenneth C. Umstead (husband) appeals the decision of the 

circuit court denying his request to terminate the spousal 

support paid to Virginia K. Umstead (wife). Husband argues that 

the court lacked subject matter jurisdiction when it modified his 

spousal support obligation in 1991. Husband also argues that the 

court exceeded its statutory authority and that Code § 20-109 

prohibited any modification of the spousal support provision of 

the final divorce decree. Upon reviewing the record and briefs 

of the parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the decision of the trial court. 

 Rule 5A:27. 

 Prior to the entry of the final divorce decree, the parties 

entered into an agreement under which husband agreed to pay wife 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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$700 per month in spousal support. The agreement provided that 

"[n]o modification or waiver of any of the terms of this 

Agreement shall be valid unless in writing and executed with the 

same formality as this Agreement." The trial court entered the 

parties' final decree of divorce on April 27, 1989. The decree 

ratified, confirmed and incorporated the agreement. 

 By motion filed October 7, 1991, husband sought to reopen 

the matter. A consent decree was entered on October 7, 1991. 

The consent decree stated the following: 

 CAME the parties and represented to the Court 

that they have reached agreement on an 

amendment of the [husband's] obligation for 

spousal support as provided for in the 

parties' Stipulation and Property Settlement 

Agreement . . . incorporated in this Court's 

Final Divorce Decree dated April 27, 1989. 

 WHEREFORE, for reasons satisfactory to the 

Court, it is hereby ADJUDGED and DECREED that 

the [husband] pay to the [wife] monthly 

alimony equal to one-half the gross amount of 

his military retired/retainer check, and that 

his obligation will be subject to all costs 

of living or other adjustments during this 

obligation of support. Payments will 

continue until the death of the first of the 

parties to die and will not terminate upon 

the remarriage of the [wife]. 

 Spousal support was awarded in the final decree. Cf. Dixon 

v. Pugh, 244 Va. 539, 542-43, 423 S.E.2d 169, 171 (1992) (nunc

pro tunc order cannot be used to create jurisdictional fiction). 

 The parties' agreement, incorporated into the final decree, 

expressly authorized modification of its terms. Husband has not 

alleged that the consent order failed to satisfy the agreement's 
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requirements for modification. 

 Furthermore, Code § 20-109 authorizes modification of 

spousal support "[u]pon petition of either party . . . as the 

circumstances may make proper." Husband petitioned for 

modification of support, based upon the parties' new agreement. 

The modification requested in 1991 therefore satisfied both the 

provisions of Code § 20-109 and the provisions of the final 

decree. 

 To the extent that husband now seeks to appeal the 1991 

consent decree on the ground that the circumstances did not 

justify modification, his arguments are untimely. Rule 1:1. 

Similarly, his assertion that the modification did not "increase, 

decrease or terminate" spousal support is contradicted by the 

record. Any allegation that the modification was itself 

erroneous is also untimely. 

 Finally, while the legislative presumption is that spousal 

support will terminate upon remarriage, parties may enter into an 

agreement to pay support beyond remarriage, and that agreement 

will be enforced as long as the parties' intention is clearly set 

out in the agreement. "[T]o avoid the operation of the statutes 

terminating spousal support upon the remarriage of the obligee 

spouse, a separation agreement 'must contain clear and express 

language evincing the parties' intent that spousal support will 

continue after remarriage; otherwise, remarriage terminates the 

obligation.'" Gayler v. Gayler, 20 Va. App. 83, 85, 455 S.E.2d 
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278, 279 (1995) (quoting Miller v. Miller, 14 Va. App. 192, 

196-97, 415 S.E.2d 861, 864 (1992)). The consent decree 

expressly provided that spousal support would continue after 

wife's remarriage. Therefore, wife's remarriage did not 

terminate husband's obligation. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. However, wife's motion for relief pursuant to Code 

§ 8.01-271.1 is denied. 

 Affirmed.