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WHITE v. WHITE

WHITE v. WHITE


Tuesday, 29th April, 1997.
Record No. 0030-96-3

Circuit Court No. V-9892

Russell A. White, Appellant,

against

Drema C. White, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

 

On March 24, 1997 came the appellant, by counsel, and filed a
petition praying that the Court set aside the judgment rendered
herein on March 11, 1997, and grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on March 11, 1997 is
stayed pending the decision of the Court en banc, and the appeal
is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellant shall file with the
clerk of this Court ten additional copies of the appendix
previously filed in this case.

A Copy,

Teste: Clerk


March 11, 1997
Record No. 0030-96-3

RUSSELL A. WHITE

v.

DREMA C. WHITE

Ray W. Grubbs, Judge
Present: Judges Baker, Coleman and Elder

OPINION BY JUDGE JOSEPH E. BAKER
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY

Garland S. Spangler for appellant.

Max Jenkins (Jenkins & Jenkins, on brief), for appellee.


Russell A. White (husband) appeals from an order entered on
November 27, 1995 by the Circuit Court of Montgomery County
(trial court) that held him in contempt for failing to comply
with the provisions of a July 15, 1991 divorce decree. Husband
contends that the trial court erred (1) in construing the terms
of a "property settlement agreement" it had
incorporated into the divorce decree and (2) in finding him
guilty of contempt for failing to comply with that decree.

On May 31, 1991, Drema C. White (wife) filed a bill of
complaint requesting a divorce and alleged that husband
"agreed, in writing, to give [her] the sum of Thirty
Thousand Dollars ($30,000.00), payable in 120 monthly
installments . . . ." The bill was personally served on
husband. He failed to file a response or deny the allegations.

Husband was personally served with notice that depositions
would be taken to be read as evidence in support of wife’s bill.
Husband did not appear at the deposition hearing and offered no
evidence in support of his position.

On May 1, 1991, husband executed the following document:

I, RUSSELL A. WHITE DO HEREBY PROMISE TO PAY THE $30,000.00
(THIRTY THOUSAND DOLLARS) MORTGAGE FOR THE HOUSE AND PROPERTY
LOCATED AT 265, ASH DRIVE, CHRISTIANSBURG, VIRGINIA 24073. SAID
PAYMENTS TO BE MADE TO FIRST VIRGINIA BANK ON A REGULAR MONTHLY
BASIS FOR 120 (ONE HUNDRED TWENTY) MONTHS. I RESERVE THE RIGHT TO
PAY OFF THE MORTGAGE EARLY WITHOUT PENALTY. I PROMISE TO PAY
PRINCIPLE [sic] AND ACCRUED INTEREST ONLY. I WILL NOT PAY ESCROW
FOR TAXES, INSURANCE, NOR ANY OTHER PURPOSE. IF ALLOWABLE BY
CURRENT TAX CODES, I RESERVE THE RIGHT TO CLAIM MORTGAGE INTEREST
AS MY EXPENSE FOR INCOME TAX PURPOSES. THIS PROMISE TO PAY THE
MORTGAGE IN NO WAY CONSTITUTES LIABILITY FOR SAID PROPERTY. IN
THE EVENT OF MY DEATH, THIS PROMISE IS NULL AND VOID–IT DOES NOT
PASS TO MY HEIRS NOR TO MY ESTATE.

SIGNED: s/RUSSELL A. WHITE

DATE: 5-1-91

This 1st day of May, 1991
Amy O. Hall
Notary Public

Commission expires Jan. 2, 1994

The above document was not signed by wife.

The depositions filed with the Court disclose the following
evidence given by wife:

Q. Now I believe that your husband
entered into an agreement on May 1, 1991, wherein he agreed
to pay you the sum of $30,000.00, payable in 120 monthly
installments, that being 119 installments of $431.72
beginning on June 23, 1991, and a final installment of
$432.23 on May 23, 2001, is that correct?

A. Yes, that is correct.

Q. And that was filed with your bill of
complaint and marked Exhibit "A"?

A. Yes.

Q. Are you requesting that this agreement
be incorporated by reference into a final decree of divorce?

A. Yes, I am.

On July 15, 1991, after reviewing the depositions and the
aforementioned document, the trial court entered a decree of
divorce which provided that "the [husband] entered into an
agreement dated May 1, 1991, with respect to maintenance and
support . . . that [husband] has not objected thereto." The
decree further provided that

it is further ADJUDGED, ORDERED and DECREED that the Court
doth ratify, confirm, approve and incorporate into this
decree by reference thereto the Agreement made by the
defendant
dated May 1, 1991.

(Emphasis added).

The record discloses no objection to the trial court’s
construction of the evidence as a promise to pay
"maintenance and support." Husband did not appeal from
the trial court’s findings included in the divorce decree. In
fact, husband made no objection before the divorce decree became
final and the time to appeal expired.

On November 17, 1994, wife sold the property described in
Exhibit "A." Until that date, husband made the monthly
payments as promised but thereafter ceased making further
payments to wife. Husband asserted that any sum he owed was paid
off as a part of the property sale. On February 2, 1995, wife
moved for a show cause order to require husband to demonstrate
why he should not be held in contempt of the July 15, 1991
divorce decree for failure to make payments due her as ordered by
that decree.

After the show cause hearing, the trial court held as follows:

UPON CONSIDERATION of the facts and issues, the Court
holds that by Final Decree entered on July 15, 1991, an
agreement was made and ratified in a Decree dated May 1, 1991
which Decree stated that [husband] entered into an agreement
dated May 1, 1991, with respect to maintenance and
support.

By [sic] July 15, 1991, the Court construed the agreement
as an obligation of Spousal Support.

The Court on July 15, 1991 having made this determination,
must now decide in light of the current dispute between the
parties, the characterization of said support obligation.
From the evidence presented herein, the Court finds as
follows:

1. The agreement previously ratified and confirmed
constitutes a lump sum award to [wife] be [sic] a certain sum
of $30,000.00 payable in installments, and it is hereby,

* * * * * * *

ADJUDGED, ORDERED and DECREED, that this matter is taken
under advisement for a period of one year from June 1, 1995
to allow [husband] to purge himself of said Contempt,
provided he commence monthly payments to [wife] . . .
beginning June 1, 1995.

(Emphasis added).

In this appeal, husband asserts that the agreement did not
provide for the maintenance and support of wife as stated in the
divorce decree, and that it was a "contract" only to
pay a debt of wife. In support of his argument, husband cites Owney
v. Owney
, 8 Va. App. 255, 379 S.E.2d 745 (1989).

In Owney, in return for promises made by the wife, the
husband agreed to assume responsibility for the monthly payments
of an outstanding loan described in a property settlement
agreement. The trial court issued a decree which declared this
monthly responsibility to be spousal support. The husband timely
perfected an appeal from that declaration. This Court reversed
and remanded the case, holding (1) that the trial court had
failed to incorporate the agreement into the decree, thereby
depriving itself of the power to enforce the agreement, and (2)
that the trial court’s finding that the husband’s obligation was
"spousal support" contravened the "plain language
of the agreement," in violation of Code Sect. 20-109.

Husband fails to acknowledge the critical differences between
his case and Owney. In Owney, the aggrieved party
properly preserved the substantive issue of whether his agreed
payment was spousal support by filing a notice of appeal within
thirty days of the decree. Here, husband failed to timely note an
appeal from the trial court’s findings made in the July 15, 1991
divorce decree. His complaint concerning the findings made in the
divorce decree was first asserted four and one-half years after
the divorce decree became final. In the contempt proceeding, for
the first time, he argued that in the 1991 decree, the trial
court erred by construing his promise to pay as "maintenance
and support."

Rule 5A:6 and Code Sect. 8.01-675.3 bar our consideration of
husband’s contention that the trial court’s finding of spousal
support contravenes the plain language of the agreement. Because
husband did not file a timely appeal from the trial court’s
finding that the agreement included an obligation to pay spousal
support, that finding is conclusive and husband cannot
collaterally attack it four and one-half years later in a
contempt proceeding. See Rook v. Rook, 233 Va. 92, 94-95,
353 S.E.2d 756, 757-58 (1987) (husband could not challenge a
finding of contempt by arguing that property settlement agreement
incorporated into final decree of divorce was void; absent an
appeal, the time to challenge the decree was within twenty-one
days of its entry); see also Hall v. Hall, 9 Va. App. 426,
388 S.E.2d 669 (1990).

Assuming that Exhibit "A" is a property settlement
agreement or contract governed by Code Sect. 20-109, as husband
argues, the dissent’s discussion of contracts and the
interpretation thereof fails to recognize the law applicable to
this appeal. The trial court reviewed the evidence, concluded
that wife was entitled to "maintenance and support,"
and established that the amount was $30,000, payable as
described. The trial court’s initial interpretation of the
evidence presented in the divorce hearing may have been
erroneous, but husband’s remedy was to appeal and he failed to do
so. Consequently, we are bound by the trial court’s findings. We
do not here rewrite a contract; we simply follow the rules
established by the Supreme Court and the statutes enacted by the
legislature.

At his option, husband must either (1) continue such payments,
including their interest component, until the remaining balance
is paid in full or (2) pay off the entire balance in a lump sum,
thereby terminating the accrual of interest.

Accordingly, for the reasons stated, the judgment of the trial
court is affirmed.

Affirmed.

__________________

Coleman, J., dissenting.

The majority concludes, in effect, that the provision in the
July 15, 1991 final divorce decree which "ratif[ied],
confirm[ed], approve[d], and incorporate[d] . . . the Agreement
made by the defendant dated May 1, 1991 . . . with respect to
maintenance and support" is res judicata on the issue of
whether the agreement and decree incorporating it
"constitutes a lump sum award to [wife] . . . [of] a certain
sum of $30,000.00 payable in installments." Thus, the
majority holds that the defendant is barred from challenging on
appeal the trial court’s finding, which was essential to the
contempt citation, that the agreement and decree constituted a
$30,000 lump sum award husband was required to pay to the wife in
120 installments. I respectfully disagree with the majority.

The 1991 final divorce decree did nothing more than approve
the agreement, incorporate it into the decree so that it could be
enforced as a court order, and declare that it was "with
respect to maintenance and support," all as authorized by
Code Sect. 20-109.1. [1]
The husband did not then, and does not now, contest those
findings. He does not dispute that he agreed to pay the mortgage
on the house as part of or in lieu of an obligation to pay
spousal support or maintenance. Moreover, contrary to the
majority’s assertions, the husband was not aggrieved by any
ruling in 1991 which adjudicates the issue he now appeals. The
1991 decree did not construe the agreement and hold that it
"constitutes a lump sum award to [wife] . . . [of] a certain
sum of $30,000.00," which is the dispositive issue
underlying this appeal. It was the November 27, 1995 contempt
decree which construed the agreement and held, for the first
time, that the husband had agreed to a $30,000 lump sum award of
spousal support payable to the wife in installments.[2] It is
the 1995 decree from which the husband appeals. Accordingly, the
fact that Rule 5A:6 and Code Sect. 8.01-675.3 may bar the husband
from contesting the 1991 divorce decree, as the majority holds,
is of no consequence. The husband timely appealed the 1995
decree. Thus, in my opinion, we must address the merits of the
appeal and decide whether the trial court in the 1995 decree
correctly construed the agreement as incorporated in the final
divorce decree to require the husband to pay the wife a lump sum
of $30,000 payable in 120 monthly installments.

In my opinion, the trial court erred in construing the
agreement and in holding the appellant in contempt. The terms of
the contract are clear and unambiguous. Therefore, I would
reverse the ruling of the trial court, find that the husband is
not in contempt of the court’s order, and remand the case to the
trial court to vacate the contempt citation.

In Virginia, property settlement agreements are contracts
subject to the same rules of formation, validity, and
construction as other contracts. Smith v. Smith, 3 Va.
App. 510, 513, 351 S.E.2d 593, 595 (1986); Tiffany v. Tiffany,
1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985). Code Sect.
20-109.1 provides that a court

may affirm, ratify and incorporate by reference in its
decree dissolving a marriage or decree of divorce whether
from the bond of marriage or from bed and board . . . any
valid agreement between the parties . . . concerning the
condition of the maintenance of the parties . . . or
establishing or imposing any other condition or
consideration, monetary or nonmonetary.

Code Sect. 20-109 provides:

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.

Thus, whether we characterize the agreement as being for
"maintenance and support," or in lieu of maintenance or
support, or whether it establishes or imposes a monetary
condition or consideration between the parties, the agreement
must be strictly construed and enforced according to its terms.

A well-settled principle of contract law dictates that
"where an agreement is complete on its face, is plain
and unambiguous in its terms, the court is not at liberty to
search for its meaning beyond the instrument itself." A
contract is not deemed ambiguous merely because the parties
disagree as to the meaning of the language they used to
express their agreement. Because the question whether a
contract is ambiguous is one of law, this Court is not bound
by the trial court’s construction. . . . [C]ontracts must be
construed as written.

Ross v. Craw, 231 Va. 206, 212-13, 343 S.E.2d 312, 316
(1986) (citations omitted).

Because the contract is clear and unambiguous, "[w]e are
not at liberty to search for the meaning of the provisions beyond
the pertinent instrument itself." Smith, 3 Va. App.
at 514, 351 S.E.2d at 596. Moreover, "[a] court is not at
liberty to rewrite a contract simply because the contract may
appear to reach an unfair result," Kaufman v. Kaufman,
7 Va. App. 488, 501, 375 S.E.2d 374, 381 (1988), nor do we
"rewrite contracts to insert provisions that have been
omitted by the parties." Jones v. Harrison, 250 Va.
64, 68, 458 S.E.2d 766, 769 (1995); see Westbury Coal Mining
Partnership v. J. S. & K. Coal Corp
., 233 Va. 226, 229,
355 S.E.2d 571, 572-73 (1987); Lipps v. First Am. Serv. Corp.,
223 Va. 131, 139, 286 S.E.2d 215, 220 (1982).

It is the function of the court to construe the contract
made by the parties, not to make a contract for them. The
question for the court is what did the parties agree to as
evidenced by their contract. The guiding light in the
construction of a contract is the intention of the parties as
expressed by them in the words they have used, and courts are
bound to say that the parties intended what the written
instrument plainly declares.

Hederick v. Hederick, 3 Va. App. 452, 455-56, 350
S.E.2d 526, 528 (1986) (quoting Wilson v. Holyfield, 227
Va. 184, 187, 313 S.E.2d 396, 398 (1984)). On appeal, where the
only issue is the construction of the terms of the contract, the
meaning and effect of the contract are questions of law which can
readily be ascertained by this Court. Fry v. Schwarting, 4
Va. App. 173, 180, 355 S.E.2d 342, 346 (1987).

The terms of the agreement in question are clear and
unambiguous. The husband agreed to pay the $30,000 mortgage on
the house located at 265 Ash Drive in Christiansburg to First
Virginia Bank in 120 monthly installments. Regardless of whether
the contract is termed or characterized as an agreement to pay
"spousal support" because it provided a pecuniary
benefit to the wife, the agreement must be construed and enforced
according to its express terms. The agreement expressly provided
that the husband would make payments to the First Virginia Bank;
it contained no provision for the husband to make payments to the
wife, as the trial court has determined. The trial court was not
at liberty to reform or rewrite the contract to provide that
payments were to be made to the wife rather than to the bank.
When the wife sold the house and paid the balance on the mortgage
from the proceeds, the indebtedness secured by the mortgage was
extinguished. The agreement contains no provision requiring the
husband to make monthly payments to the wife if the mortgage was
paid by the wife, or if the mortgage indebtedness was
extinguished by some other means, such as casualty or credit life
insurance. Because the debt secured by the mortgage to the bank
has been paid, the husband’s contractual obligation to continue
the mortgage payments to the bank has ended. This result is not
altered simply because the wife voluntarily paid the debt which
the husband had agreed to assume.

Thus, because the agreement contains no provision that
requires the husband to make payments to the wife and because we
are not at liberty to create such a provision, I would reverse
the trial court’s decision and remand the case for the trial
court to vacate the contempt citation.

 

FOOTNOTES:

[1]
The provision in the July 15, 1991 divorce decree that the
majority relies upon states as follows:

that subsequent to the separation of the parties hereto,
the defendant entered into an agreement dated May 1, 1991,
with respect to maintenance and support, which agreement was
attached to the bill of complaint in this cause as Exhibit
"A" and filed with the pleadings herein; and that
defendant has not objected thereto; it is therefore

* * * * * * *

ADJUDGED, ORDERED and DECREED that the Court doth ratify,
confirm, approve and incorporate into this decree by
reference thereto the Agreement made by the defendant dated
May 1, 1991.

[2]The
pertinent provision of the 1995 contempt decree provided as
follows:

By [decree dated] July 15, 1991, the Court construed the
agreement as an obligation of Spousal Support.

The Court on July 15, 1991 having made this determination,
must now decide in light of the current dispute between the
parties, the characterization of said support obligation.
From the evidence presented herein, the Court finds as
follows:

1. The agreement previously ratified and confirmed
constitutes a lump sum award to the complainant be a certain
sum of $30,000.00 payable in installments . . . .

 

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