WHITE v. WHITE
January 8, 1999
Record No. 980197
RUSSELL A. WHITE
DREMA C. WHITE
FROM THE COURT OF APPEALS OF VIRGINA
PRESENT: All the Justices
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
In this appeal, we consider whether an
agreement to pay a mortgage on the former marital home, which was
ratified by the trial court and incorporated into a final divorce
decree, was properly construed by the trial court in a subsequent
show cause hearing as obligating the former husband to make
spousal support payments after the mortgage debt had been
Drema C. White and Russell A. White were
married March 4, 1967. The couple separated on May 24, 1988. Mrs.
White continued to occupy the marital home located on Ash Drive
in Christiansburg. Mr. White relocated to North Carolina and
later deeded his interest in this home to his estranged wife.
In 1991, Mrs. White contacted Mr. White in
North Carolina and indicated that she intended to obtain a
divorce. Thereafter, at Mrs. Whites request, Mr. White
returned to Virginia and executed the following agreement:
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 VOIDIT DOES NOT
PASS TO MY HEIRS NOR TO MY ESTATE.
SIGNED: s/RUSSELL A. WHITE
This agreement was notarized, but was not
signed by Mrs. White.
On May 31, 1991, Mrs. White filed a bill of
complaint in the Circuit Court of Montgomery County (trial court)
seeking a divorce and alleged that Mr. White had "agreed, in
writing, to give [her] the sum of Thirty Thousand Dollars
($30,000.00), payable in 120 monthly installments." The May
1, 1991 agreement was appended to the bill of complaint as
"Exhibit A." The bill of complaint was
personally served on Mr. White, who did not file a response.
Mr. White was served with notice that the
depositions of Mrs. White and others would be taken in support of
the bill of complaint. He did not appear when these depositions
were subsequently taken or otherwise offer any evidence before
the case was submitted to the trial court for entry of a final
decree of divorce. In Mrs. Whites deposition, filed with
the trial court, she requested that the May 1, 1991 agreement
filed with the bill of complaint and "marked Exhibit
A" be "incorporated by reference" in
the final decree of divorce.
On July 15, 1991, after reviewing the
depositions and the agreement, the trial court entered a final
decree of divorce which provided that "[Mr. White] entered
into an agreement dated May 1, 1991, with respect to maintenance
and support." The decree, pursuant to Code
Sect. 20-109.1, 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.
On November 17, 1994, Mrs. White sold the
marital home and the balance due on the mortgage was paid from
the proceeds of the sale. Until that time, Mr. White made the
monthly payments as called for in the agreement to the mortgagee
bank, but thereafter he made no payments to Mrs. White. On
February 2, 1995, Mrs. White petitioned the trial court for an
order to require Mr. White to show cause why he should not be
held in contempt for failure to make the payments to her that she
asserted were due pursuant to the July 15, 1991 divorce decree.
A show cause hearing was held on February 23,
1995. During that hearing, Mr. White maintained that by the terms
of the agreement in question he had obligated himself to the bank
and not to Mrs. White. Accordingly, he further maintained that
the satisfaction of the mortgage when the home was sold
terminated his obligation under the agreement. Thereafter, the
trial court entered an order on February 27, 1995 which, in
pertinent part, provides:
UPON CONSIDERATION of the facts and issues,
the Court holds that by Final Decree entered on July 15,
1991, . . . which Decree stated that [Mr. White] entered into an agreement dated May 1, 1991, with respect to
maintenance and support.
By [the decree dated] July 15, 1991, the
Court construed the agreement as an obligation of Spousal
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 [Mrs. White] 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 [Mr. White] to purge
himself of said Contempt, provided he commence monthly
payments to [Mrs. White] . . . beginning June 1,
Upon Mr. Whites appeal to the Court of
Appeals, a divided panel affirmed the judgment of the trial
court. The majority of the panel agreed with the trial court that
the reference to the agreement in the final decree of divorce as
being "an agreement . . . with respect to
maintenance and support" constituted a "finding"
that the agreement included an obligation to pay spousal support.
Accordingly, the majority held that because the finding had not
been appealed in 1991 it was not subject to collateral attack in
the 1995 show cause hearing. White v. White, 24 Va. App. 297,
302-03, 482 S.E.2d 78, 80 (1997).
Mr. White filed a petition for rehearing en
banc, which the Court of Appeals granted. Upon the rehearing en
banc, an equally divided Court affirmed the judgment of the trial
court without opinion. The opinion previously rendered by the
panel was withdrawn, and the mandate entered under that opinion
was vacated. White v. White, 26 Va. App. 250, 251, 494 S.E.2d
161, 162 (1997). We awarded Mr. White this appeal.
Relative to a divorce proceeding, Code
Sect. 20-109.1 authorizes the trial court, in its
affirm, ratify and incorporate by reference
in its decree dissolving a marriage or decree of divorce
. . . any valid agreement between the parties
. . . concerning the conditions of the maintenance
of the parties, or either of them . . . or
establishing or imposing any other condition or
consideration, monetary or nonmonetary.
When a court exercises the authority given to
it under Code Sect. 20-109.1, or thereafter enforces the
no decree or order directing the payment of
support and maintenance for the spouse . . . or
establishing or imposing any other condition or
consideration, monetary or nonmonetary, shall be entered
except in accordance with that stipulation or contract.
Code Sect. 20-109.
This provision of Code Sect. 20-109
inhibits the power of the court to award or consider modification
of the decree to the extent that spousal support and maintenance
are provided for in the incorporated agreement of the parties.
See Wickham v. Wickham, 215 Va. 694, 213 S.E.2d 750 (1975);
McLoughlin v. McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783
(1970). In such cases, the intent of the parties as expressed in
the agreement controls, and the agreement is treated as a
contract and construed in the same manner as all contracts. See
Eaton v. Eaton, 215 Va. 824, 826, 213 S.E.2d 789, 791 (1975);
Paul v. Paul, 214 Va. 651, 653, 203 S.E.2d 123, 125 (1974). Thus,
the issue presented by the present appeal is whether the trial
court in 1995 properly construed the parties May 1, 1991
agreement, which was incorporated into the July 15, 1995 final
decree of divorce, as an obligation of spousal support of a lump
sum requiring Mr. White to pay that sum in monthly installments
with interest to Mrs. White.
The parties do not contend, and neither do we
find, that the language of the agreement is ambiguous. Therefore,
under well established principles, we adhere to the plain meaning
of its stated terms. See Berry v. Klinger, 225 Va. 201, 208, 300
S.E.2d 792, 796 (1983). The agreement clearly obligates Mr. White
to pay the $30,000 mortgage on the house located at 265 Ash Drive
in Christiansburg to First Virginia Bank in 120 monthly
installments. It contains no provision for Mr. White to make any
payments to Mrs. White. Moreover, and of particular significance
in this case, nothing within the express terms of the agreement
evinces any intent of the parties that Mr. Whites
obligation would survive the satisfaction of the mortgage debt,
regardless of the manner in which that debt was extinguished.
Accordingly, we hold that the agreement
obligated Mr. White to make payments on the mortgage on the
marital home so long as that debt existed, but did not obligate
him to pay a fixed sum to the wife in installments with interest,
as she alleged in her bill of complaint and as the trial court
subsequently found in the show cause hearing. The language of the
final decree of divorce referencing the agreement as "an
agreement . . . with respect to maintenance and
support" could not, and did not, alter the intent of the
parties as expressed in the agreement.
For these reasons, and because there is no
dispute that Mr. White made the required mortgage payments, we
will reverse the judgment of the Court of Appeals and enter final
judgment for Mr. White, dismissing the rule to show cause.
Reversed and final judgment.
The trial judge who conducted this hearing was not the
same judge who entered the divorce decree.
Contrary to the view expressed by the majority in the
opinion of the panel of the Court of Appeals, this issue is
properly preserved by Mr. Whites appeal from the trial
courts February 27, 1995 order. The 1991 divorce decree
simply did not construe the agreement as a lump sum spousal