IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



LOUIS EDWIN STATZER

Plaintiff FAM. NO. D168/80



ACTION FOR DIVORCE



V.



NICOLETTA LAURA STATZER

Defendant



See eet Senet Seat at Sat Set nae ee?



ARTHUR POMERANTZ, ESQUIRE

(Attorney for Plaintiff)



P. O. Box 1623



St. Thomas, Virgin Islands 00801



NICOLETTA STATZER



Office of Congressman Breaux



2159 Rayburn House Office Building

Washington, D.C. 20515



FEUERZEIG, J.

o se



MEMORANDUM OPINION AND ORDER

(May 7 1984)



Plaintiff Louis Edwin Statzer has filed a motion for



the court to hold the defendant Nicoletta Laura Statzer in.



contempt of court for failing to comply with a March 13,



1981 separation agreement between the parties. The agreement

requires the defendant to sign any income tax return of the



parties for 1979. Plaintiff contends defendant has failed



to do this and should be adjudged in contempt.



In support of a citation for contempt, plaintiff relies



on the divorce decree, which provides:



That the property settlement and separation



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agreement entered into by and between the parties,

dated March 13, 1981, is incorporated herein in its

entirety and specifically made a part hereof.



The separation agreement, however, provided:



if consistent with the rules of practice of the court

granting a decree of absolute divorce, the provisions

of this agreement, or the substance thereof, shall be

incorporated in such decree, but not withstanding such

incorporation, this agreement shall not be merged in

such decree, but shall in all respects survive the same

and be forever binding and conclusive upon the parties.

(Emphasis added)



The divorce in this matter was granted on May 5, 1981.

At the hearing neither the defendant nor defendant's counsel

appeared. The decree, which was drafted by plaintiff's

counsel, states defendant appeared generally by filing a



Notice of Appearance, Waiver and Consent to a hearing



without further notice. In fact, though, the defendant first.



filed an answer and a notice of appearance, waiver and



consent. Subsequently, she filed an answer in which she



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neither admitted nor denied the allegations of the com-

plaint, offered no objection to a hearing without notice and

stated that the parties had entered into a separation

agreement. The court, therefore, assumes that the defendant

and counsel did not appear in reliance on the separation

agreement that was entered into by the parties.



As a result, this court entered an order directing the



plaintiff to show by what authority this court appropriately



could find the defendant, who resides in Washington, D.C.,



in contempt. Plaintiff, through counsel, has responded by



-merely quoting the separation agreement and stating that



this court has jurisdiction by reason of the parties

marriage in St. Thomas. Plaintiff's memorandum, however,



totally misses the point of this court's order.



There is a great difference of view among the

cases on what will constitute “incorporation"

of the agreement into the decree so as to make

contempt proceedings available to enforce its

support provisions. The decisions rely on at least

three factors: (a) the intent of the parties as shown

by the agreement; (b) the extent to which, and

method by which the agreement is set forth in the

decree; and (c) whether the decree specifically orders

performance of the agreement. If there is intent to

incorporate plus incorporation verbatim in the decree,

plus a specific direction in the decree for the

performance of the agreement, it is clear that the

provisions of the agreement will be enforceable by

contempt, at least so far as they relate to .

alimony. But if the agreement is only incorporated by

reference, or if the decree merely approves the

agreement without specifically ordering it to be

performed, the wife may be unable to enforce by

contempt.



In spite of contrary statements in the cases the

intention of the parties is not relevant to whether

contempt should be available, but only to the question

whether the court should approve the agreement and make

it part of the decree. The other two factors mentioned

above ought to be present, however, before the pro-

visions of the agreement can be said to be superseded

by the decree, or "merged" in the decree for purposes

of enforcement by contempt. The husband is entitled to

have his obligations spelled out in detail in the

decree, and to have a specific order of the court

underlie the penalties of contempt. If the agreement

is merely incorporated by reference, its provisions may

not even be available in the court's file, and at the

least will not be ascertainable solely by looking at

the decree. Under such circumstances the husband will

have insufficient notice of his duty. There is no

hardship on the wife, and little inconvenience to the

court, in requiring the decree to set out the agreement

verbatim. For this reason the fact that incorporation

by reference is sufficient to allow modification of a

decree based on an agreement would not justify a

holding that it is sufficient to place the husband in



contempt when he fails, to pay the alimony.



Of course, no contempt proceedings can be brought

against the husband when he failed to perform an

agreement which is not incorporated in the decree. The

remedies, if any, are on the contract.



Clark, Law of.Domestic Relations §16.12, at 556 (1968)



Clark's use of the word "incorporation" for purposes

of contempt proceedings, is synonymous with merger. As such,

"/i/£ the separation agreement is 'incorporated' in the

divorce decree, the courts find that the contractual obliga-

tions of the agreement are converted into obligations based

upon the decree by the process called 'merger'." Id. at

554.



This same view is endorsed by Alexander Lindy in his

two volume work, Separation Agreements and Anti-Nuptial

Contracts §31.80 (1961).



Where the execution of a separation agreement is

followed by a divorce, whatever the interval, the

question arises as to whether the agreement is merged

in the decree. The consequences of merger are clear;

but whether or not, given a state of facts, a merger

‘occurs, is often difficult to determine. The result

may depend on (a) whether the agreement is presented to

the court; (b) whether it is incorporated in the

decree; (c) whether it contains any provision as to

merger; and (d) the intention of the parties.



A reading of the divorce decree in this case shows an

absence of a specific order of performance of the agreement

or the provision at issue. In addition, not one term of the

agreement is included except that relating to the parties

having waived alimony. That, when coupled with the circum-

stances under which the divorce was granted and the decree

was signed, makes it abundantly clear that there was no



"merger" of the agreement as that term is understood. The



agreement's language is plain and direct in stating that the

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agreement was to survive the divorce decree.



"It has been



said that if a post nuptial agreement is incorporated in a



divorce decree and there is language in the agreement



indicating that a merger was not intended, the purpose of



incorporation is only to identify the agreement for res



adjudicata .



.



."



Id. §31.83.



Consequently, the sole



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remedy of the plaintiff in this instance is to sue on the



contract.



E.g- gwerling v. Zwerling, 255 S.E.2d 50 (S.C.



il



1974). Therefore, it is



ORDERED that the plaintiff's motion for contempt is



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denied.



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ATTEST:



VIOLA BE. SMITH



Administrator/Clerk of the Cour



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Senior Deputy Gferk I



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