
    CIRCUIT COURT OF FAIRFAX COUNTY
    Burns v. Burns
    March 25, 1985
    Case No. (Chancery) 61991
   By JUDGE F. BRUCE BACH

This matter came before the Court on [a] motion to enter an order. After hearing argument of counsel, and a review of the pleadings submitted to the Court, it is my decision that the Property Settlement Agreement, entered into by the parties to this litigation, cannot be incorporated into an award of separate maintenance.

Clearly, the Court is empowered to award separate maintenance. The right of Complainant to support survives the divorce obtained ex parte by the husband in Texas, and this Court may award Complainant permanent alimony. Newport v. Newport, 219 Va. 48, 56 (1978). Nothing further need be said in this regard.

The real question, however, is: Can Virginia incorporate a property settlement agreement between the parties into an award for separate maintenance when the divorce decree was issued by a Texas court?

It is the opinion of the Court that Virginia has no control over the Texas decree and, as such, is without jurisdiction to modify or incorporate any agreement into the Texas decree.

Complainant alleges that Virginia Code section 20-109 provides this Court with statutory authority to incorporate the agreement. Such is not the case; the statute relied upon simply is inapposite to Complainant’s request for relief. Likewise, section 20-107.3, while allowing this Court jurisdiction over the property of parties, such jurisdiction attaches only upon the Court’s having decreed the dissolution of a marriage or decreeing a divorce from the bond of matrimony. No such decree has been issued by this Court.

Any attempt to incorporate the property settlement agreement must be entertained by the Texas courts; the attempt to utilize contempt power to enforce the property settlement must come by way of the Texas courts. This court can only view the agreement as a contract and can only afford relief on that basis.

For the foregoing reasons, Complainant must submit a new order excluding reference to the property settlement agreement.  