COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Annunziata and 

 Senior Judge Coleman 

Argued at Richmond, Virginia 

NANCY JACKSON BAZZLE 

 OPINION BY 

v. Record No. 0851-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 MARCH 26, 2002 

SHELTON WAYNE BAZZLE 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Gary A. Hicks, Judge 

 Brian H. Jones (Kaestner, Pitney & Jones, 

P.C.; Pitney, Jones & Fantl, P.L.C., on 

briefs), for appellant. 

 Terrence R. Batzli (Ann Brakke Campfield; 

Barnes & Batzli, P.C., on brief), for 

appellee. 

 In this appeal, Nancy Jackson Bazzle (wife) contends the 

trial court erred in applying the doctrine of merger and 

terminating her right to spousal support. Shelton Wayne Bazzle 

(husband) presents as an additional question that the trial 

court erred in applying the doctrine of laches and refusing him 

a refund of his alleged overpayment of the support judgment 

obtained by wife. Finding no error, we affirm. 

I. BACKGROUND 

 The parties were married on June 22, 1957 and divorced by a 

final decree of divorce on February 21, 1974 in Henrico County 

Circuit Court. Prior to the entry of the final decree, the 
parties entered into a Property Settlement Agreement (PSA) dated 

December 31, 1973. Paragraph 5 of the PSA provides as follows: 

(a) Commencing January 1, 1974 and 

continuing thereafter on the same day of 

each succeeding month, Husband shall pay to 

Wife the sum of $1,050.00 per month as 

periodic payments of alimony made because of 

the family and marital relationship and in 

recognition of his general support 

obligation, which payments shall terminate 

upon Wife's death. 

* * * * * * * 

(c) If Wife shall not sooner remarry, then 

commencing January 1, 1983, the alimony 

payments provided for in paragraph (a) above 

shall be reduced to $950.00 per month until 

January 1, 1985, when they shall be further 

reduced to $833.33 per month until the 

sooner of Wife's death or her remarriage 

subsequent to January 1, 1985. 

Paragraph 6 of the PSA provides as follows: "[c]ommencing 

January 1, 1975 and adjusted annually on January 1 of each 

succeeding year thereafter, Husband shall pay additional support 

and alimony to Wife . . . ." Upon entry of the final decree, it 

was ordered only that the PSA "be filed with the papers in this 

cause."1 The final decree provided, "[i]t is further ADJUDGED, 

 1 At that time, Code § 20-109.1 provided in pertinent part: 

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 Any court may affirm, ratify and 

incorporate in its decree dissolving a 

marriage or decree of divorce . . . any 

valid agreement between the parties, or 

provisions thereof, concerning the 

conditions of the maintenance of the 

parties, or either of them . . . . Where 

the court affirms, ratifies, and 

incorporates in its decree such agreement or 
and ORDERED that the Defendant pay to the Plaintiff the sum of 

One Thousand Fifty Dollars ($1,050.00) per month as alimony." 

Neither the final decree nor the PSA contained any provision 

regarding future modifications. Wife never remarried. 

 In 1982, husband stopped paying his spousal support. Wife 

filed an independent suit at law in Henrico County Circuit Court 

alleging anticipatory breach of contract. She requested a 

judgment of $429,565, an amount she calculated would satisfy 

husband's remaining spousal support obligation. She arrived at 

that amount by calculating the value of her spousal support 

payments through the end of her life expectancy, thirty-seven 

years according to the actuarial tables in effect at that time, 

and discounting that amount to its present day value. A default 

judgment was awarded her on October 22, 1982 for the total 

 

provision thereof, it shall be deemed for 

all purposes to be a term of the decree, and 

enforceable in the same manner as any 

provision of such decree. 

See also Code § 20-109 which provided in pertinent part: 

[I]f a stipulation or contract signed by the 

party to whom such relief might otherwise be 

awarded is filed with the pleadings or 

depositions, then no decree or order 

directing the payment of alimony, suit 

money, or counsel fee shall be entered 

except in accordance with that stipulation 

. . . . 

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amount requested.2 The judgment was duly docketed in the "lien 

docket book at page number 508." 

 After the entry of the default judgment, husband moved the 

trial court to vacate the judgment based on inadequate service 

of process. In its January 12, 1984 order (1984 order), the 

trial court refused to set aside the judgment, but enjoined wife 

from collecting it so long as husband (1) made payments to wife 

pursuant to the PSA and (2) maintained a $50,000 letter of 

credit to her benefit. Specifically, the 1984 order said: 

(b) The said [husband] shall make his 

payments of spousal support to [wife] 

pursuant to the terms of the written 

Property Settlement Agreement between the 

parties dated December 31, 1973, which 

payments of spousal support shall be due and 

payable to [wife] on the first day of each 

month. If any such payment has not been 

received by [wife] by the eighth day of the 

month when due, then counsel for [wife] 

shall notify counsel of record for [husband] 

of this fact in writing. If thereafter 

[wife] or her counsel does not receive the 

payment which was due on the first of that 

month from [husband] by midnight on the 

tenth day next following the delivery of 

said written notice to [husband's] counsel 

of record, the injunction herein shall be 

automatically dissolved at that time without 

further hearing, and [wife] shall have the 

right to proceed to enforce her judgment 

forthwith and without further hearing and 

collect as a credit against said judgment 

the Fifty Thousand Dollars ($50,000.00) 

amount provided under the aforesaid letter 

 

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2

 If collected in full, it was to be placed in a trust and 

distributed in installments over thirty-seven years to wife, and 

if wife died or remarried, the remainder would be returned to 

husband. 
of credit in accordance with the verified 

notice procedure set forth in (a) above. 

[Husband] shall receive credits so long as 

the injunction is in effect, and the 

judgment shall not run with interest. 

[Husband] shall receive credit for all 

payments made since the date of the judgment 

as spousal support. 

In the event [husband] fails to meet all of 

the conditions above, then the judgment 

shall be for the amount of monies then owing 

with interest running from the original date 

of the judgment, that is October 22, 1982. 

Neither party appealed the 1984 order. 

 Husband made payments as required with no further court 

action. On April 14, 1999, husband's counsel notified wife's 

counsel that the judgment had been overpaid and requested it be 

released and marked satisfied. Husband's counsel represented 

that marking the judgment satisfied "in no way affects 

[husband's] ongoing obligation to pay spousal support." Based 

on the representation, wife's counsel released the judgment on 

April 30, 1999. 

 On June 14, 1999, husband's counsel notified wife's counsel 

that his client would not pay spousal support beyond October, 

1999 because husband's company had gone bankrupt. Wife filed a 

motion for rule to show cause in the divorce case requesting 

that husband be held in contempt for violating an order of the 

court. The order to show cause cites as the basis for the rule 

both the final decree of divorce and the 1984 order. Husband 

filed a separate petition requesting that the trial court order 

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a refund because he had overpaid any support required pursuant 

to their PSA. He contended that the PSA support requirements 

were merged into the default judgment entered at wife's request 

on their contract, which was later released as satisfied. 

 The trial court found that husband was not in contempt of 

court because he had made all spousal support payments due. 

It is the opinion of this Court that the 

effect of the [1984] Order on the [PSA] was 

as follows. First, it reduced [husband's] 

spousal support obligation due under the 

Agreement to $429,565.00 . . . .

Second, the [1984] Order merged [husband's] 

spousal support obligation into a final 

judgment, thereby eliminating any future 

actions for spousal support based upon the 

original [PSA]. 

Third, the [1984] Order incorporated the 

payment methodology contained within 

paragraph six of the [PSA] entitled 

"Additional Support and Alimony." No other 

provisions of the [PSA] were incorporated. 

The [1984] Order reads in pertinent part, 

"[t]he said [husband] shall make his 

payments of spousal support to [wife] 

pursuant to the terms of the written [PSA] 

between the parties dated December 31, 1973 

. . . ." As a result, [husband] was 

required to make payments on the $429,565.00 

judgment as per the calculations set forth 

in the [PSA] until satisfied. 

* * * * * * * 

[Husband's] obligation to continue paying 

spousal support to [wife] is terminated as a 

result of satisfying the Judgment. A 

plaintiff may not reduce an obligation to a 

judgment, collect on the judgment in full, 

and then double dip by instituting another 

action based on the same obligation because 

he/she is unhappy with the amount received 

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in satisfaction. To allow such proceeding 

is inequitable and against better judgment. 

[Husband] cannot be held in contempt for 

discontinuing payments of spousal support. 

The trial court next found that laches barred husband's request 

for a refund of monies paid in excess of the judgment. 

[Husband] has known or suspected that he was 

making overpayments on the Judgment amount 

for some seventeen years, and is just now 

seeking to recover those monies. . . . It 

would work a grave injustice to require 

[wife] to repay [husband] some $125,000.00 

living on a fixed income . . . . 

II. MERGER AND TERMINATION OF SPOUSAL SUPPORT 

 Wife argues that the trial court erred in finding that her 

suit for anticipatory breach of husband's duties under their PSA 

merged his spousal support obligations into the final judgment 

and, thus, precluded any future suits for additional spousal 

support. She contends that the October 22, 1982 judgment order 

(1982 order) awarding her $429,565 for lifetime support was 

modified by the later 1984 order enjoining enforcement because 

the 1984 order did not say that husband's spousal support 

obligation would end upon full payment of the judgment amount. 

We disagree. 

 Initially, we note that the PSA at issue here was "filed 

with the papers" in the parties' divorce. It was never 

"affirmed, ratified, or incorporated" into the final decree of 

divorce and, thus, the trial court was constrained by 

Code §§ 20-109.1 and 20-109 to enter no order in contravention of 

the agreement. As we said in Hering v. Hering, 33 Va. App. 368, 

533 S.E.2d 631 (2000): 

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[i]f the court accepts the agreement, its 

decree may merely approve, ratify or affirm 

the agreement, in whole or in part, without 

incorporating its provisions into the decree 

or ordering payment or compliance with its 

terms. In that situation, the decree merely 

constitutes judicial approval of a private 

bilateral contract, and the provisions of 

the support agreement do not have the full 

force and effect of a court's decree and are 

not enforceable by the court's contempt 

powers. 

Id. at 373, 533 S.E.2d at 633-34 (citations omitted). "Property 

settlement agreements are contracts; therefore, we must apply the 

same rules of interpretation applicable to contracts generally." 

Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985) 

(citations omitted). "Since the interpretation of a contract is 

a question of law, we are not bound by the trial court's 

conclusions on this issue, and we are permitted the same 

opportunity as the trial court to consider the contract 

language." Garcia v. Enterprise Ford Tractor, Inc., 253 Va. 104, 

107, 480 S.E.2d 497, 498-99 (1997). 

 In the instant case, wife pursued her contractual remedies 

for enforcement. Her election to sue for anticipatory breach of 

the total amount due under their contract3

 quantified husband's 

 3

 An anticipatory breach of contract is 

one committed before the time has come when 

there is a present duty of performance and is 

the outcome of words or acts evincing an 

intention to refuse performance in the 

future. . . . [T]o constitute such an 

"anticipatory breach," it must appear that 

the party bound under a contract has 

unequivocally refused to perform. . . . This 

is so because an anticipatory breach which 

will support an action for breach of the 

contract must go to the whole consideration 

of the contract and must relate to the 

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remaining spousal support obligation at $429,565. This amount 

was reduced to a judgment at her request and, after full payment, 

was marked satisfied. However, we must now decide if wife's 

choice of remedy precluded her from further litigation because 

any future spousal support obligation was merged into the 

judgment. 

 The law of merger is well settled and applies to 

acceleration of contractual remedies. When a cause of action has 

been reduced to a judgment, the cause of action is merged into 

the judgment and cannot form the basis for future suits between 

the parties. In Equity Investors v. West, 245 Va. 87, 425 S.E.2d 

803 (1993), a partnership obtained a judgment on six promissory 

notes and then sought to docket that judgment against the solvent 

general partners. In reviewing the viability of the doctrine of 

merger, the Supreme Court quoted Beazley v. Sims, 81 Va. 644, 648 

(1886): 

"The judgment establishes in the most 

conclusive manner, and reduces to the most 

authentic form, that which had hitherto been 

unsettled. The cause of action thus 

 essence of the contract, so far as the 

complaining party is concerned. 

Michie's Jurisprudence Contracts § 76 (2001). 

Under the law in Virginia, the 

abandonment of a contract will give rise to 

an action for anticipatory breach. We said 

in Mut. R. Fund Ass'n v. Taylor, 99 Va. 208, 

37 S.E. 854 (1901) that: "[W]hen one party 

to a contract has entirely abandoned it, or 

has absolutely refused to perform it, the 

other party may elect to sue on it without 

waiting for the time of performance to 

arrive." 

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Supervisors v. Ecology One, 219 Va. 29, 33, 245 S.E.2d 425, 

428 (1978) (some internal citations omitted).
established and permanently attested, is said 

to merge into the judgment establishing it 

upon the same principle that a simple 

contract merges into a specialty. The cause 

of action, though it may be examined to aid 

in interpreting the judgment, can never again 

become the basis of a suit between the same 

parties. It has lost its vitality; it has 

expended its force and effect. All its power 

to sustain rights and to enforce liabilities 

has terminated in the judgment. It is 

drowned in the judgment and must henceforth 

be regarded as functus officio." 

Equity Investors, 245 Va. at 89-90, 425 S.E.2d at 805. See also

Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974) 

("Merger occurs when a valid and final personal judgment for 

money is entered for plaintiff. His original cause of action is 

merged into the judgment and is extinguished. Plaintiff can 

maintain a subsequent action only on the judgment and not on the 

original cause of action."); Jones v. Morris Plan Bank of 

Portsmouth, 168 Va. 284, 291, 191 S.E. 608, 610 (1937) ("If suit 

is brought for a part of a claim, a judgment obtained in that 

action precludes the plaintiff from bringing a second action for 

the residue of the claim, notwithstanding the second form of 

action is not identical with the first, or different grounds for 

relief are set forth in the suit."); Sands v. Roller, 118 Va. 

191, 192-93, 86 S.E. 857, 858 (1915) ("We are of the opinion that 

when the judgment was obtained . . . , it merged the entire 

contract upon which the suit was brought, and the plaintiff could 

not afterwards maintain a suit for another recovery under that 

contract."). 

 We agree with the trial court that wife, having chosen her 

remedy and reduced the amount of support owed her to a judgment, 

cannot now revive the contract and pursue another cause of 

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action. While wife argues that the 1984 order created an 

additional obligation to pay support, this position is without 

merit. The 1984 order did nothing to the amount of the 

underlying, docketed judgment, but simply enjoined certain 

enforcement methods if husband timely paid the amounts due under 

the PSA. Thus, we hold that the trial court did not err in 

finding husband had satisfied his support obligations by paying 

in full the amount of the judgment and in ruling that he was not 

in contempt. 

III. LACHES 

 Laches is "the neglect or failure to assert a known right or 

claim for an unexplained period of time under circumstances 

prejudicial to the adverse party." Princess Anne Hills v. Susan 

Constant Real Est., 243 Va. 53, 58, 413 S.E.2d 599, 602 (1992). 

The burden of proving laches and prejudice is upon the litigant 

asserting that defense. Id. See also Stewart v. Lady, 251 Va. 

106, 465 S.E.2d 782 (1996). 

 When a trial court considers the 

defense of laches, it does not apply an 

absolute rule such as a statute of 

limitations, but instead, the court examines 

each case in light of the particular 

circumstances. Therefore, whether under the 

circumstances of a given case a claim is 

barred by laches is primarily a decision 

resting within the discretion of the trial 

court. Absent an abuse of discretion, its 

decision will not be disturbed on appeal. 

Morris v. Mosby, 227 Va. 517, 521, 317 S.E.2d 493, 496 (1984) 

(citations omitted). 

 Husband contends that the trial court abused its discretion 

in finding that laches barred his claim for overpayments made 

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after he satisfied the $429,565 judgment. The record supports 

the trial court's finding that husband "has known or suspected" 

that he was making overpayments for seventeen years and took no 

action. Husband addressed the issue of possible overpayments 

with his then counsel, Mr. Runkle, but took no action to correct 

any possible problem for over sixteen years. Wife relied on and 

accepted the payments as proper. To require her to pay back 

thousands of dollars after appellee's inaction would be both 

prejudicial and inequitable. Finding no error, we affirm the 

trial court. 

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IV. Conclusion 

 For the reasons set forth above, we affirm the judgment of 

the trial court. 

 Affirmed. 

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