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Contempt Finding Against Husband Upheld

Deborah Elkins//January 31, 2014

Contempt Finding Against Husband Upheld

Deborah Elkins//January 31, 2014

A divorce court did not err in holding husband in contempt when he failed to list the marital home for sale, as required under the parties separation agreement incorporated into a final divorce decree; the Court of Appeals affirms the contempt finding and remands for an attorney’s fee award.

When a separation agreement is incorporated into a final divorce decree, the trial court is permitted to use its contempt power to enforce the terms of the agreement. Here, the trial court order is clear. The separation agreement specifies that if husband failed to refinance the residence before March 1, 2012, the residence would be listed for sale no later than March 15, 2013. A PSA is governed by the same rules of construction applied to other contracts. 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.

On appeal, husband contends that wife breached the terms of the separation agreement by not vacating the residence by March1, 2012, and that her breach of the agreement prevented husband’s initial efforts at complying with the requirement for March 1, 2012 refinancing, because he asserted the lender told him he could not refinance if wife was still living in the residence.

We find this argument unpersuasive. Wife’s right to reside in the residence and husband’s option to refinance were coterminous: The express language of the separation agreement permitted wife to reside in the residence while husband pursued refinancing. Wife’s conduct, therefore, did not excuse husband’s nonperformance. More importantly, wife’s dwelling in the residence had no bearing on the trial court’s finding of contempt, even if as a factual matter it precluded husband from refinancing (at least through one particular lender, GMAC). Rather, it was husband’s failure to list the residence for sale by March 15, 2012, not his failure to refinance, that the trial court considered contemptible.

For similar reasons, we reject husband’s contention that the trial court erred in ordering the sale of the residence because the refinancing provision of the separation agreement was impossible to perform given the unforeseen bankruptcy of GMAC. Husband’s narrow focus on his option to refinance under the separation agreement neglects the issue before this court, namely, whether the trial court erred by finding husband in contempt or his failure to list the residence for sale by March 14, 2012, as required by the parties’ separation agreement. At most, husband’s arguments explain why he did not exercise his option to refinance the residence prior to the March 1, 2012, deadline, but not why he chose to disregard the express order in the separation agreement to list the residence for sale by March 15, 2012.

Upon hearing husband’s explanation for his conduct and wife’s testimony that she proposed a realtor and apprised husband of the need to list the residence for sale before requesting a rule to show cause, the trial court found that husband’s conduct constituted willful disobedience of the trial court order. It held husband in contempt. The record supports this decision and we find no abuse of discretion.

We further hold that wife is entitled to a reasonable amount of attorney’s fees and costs incurred on appeal.

Judgment affirmed and case remanded for attorney fee award.

Kernbach v. Kernbach (Alston) No. 1070-13-4, Jan. 28, 2014; Fairfax Cir.Ct. (Smith) David L. Duff for appellant; David M. Zangrilli Jr. for appellee. VLW 014-7-017(UP), 7 pp.

VLW 014-7-017

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