Wife, whose breach of PSA was contempt, must pay fees

A wife who breached two sections of the couple’s property settlement agreement was properly held in civil contempt, the Virginia Court of Appeals has held. And under the PSA, she must pay her ex-husband’s attorneys’ fees for enforcing the agreement.

She was faulted for failing to maintain an insurance policy payable to her children and for claiming one of the children as a dependent for tax purposes when the agreement alternated tax status year-to-year between the parties.

Although she argued that these actions were criminal contempt, and that she should have been given certain safeguards, the appeals court called both those breaches “classic civil contempt.”

She succeeded in her argument about a third sanction for breach, for speaking negatively about her husband to one of the children. The circuit court had imposed a $1,000 fine, which the appeals court agreed was punitive and more in the realm of criminal contempt. It sent that part of the case back to circuit court.

The case is Mills v. Mills (VLW 019-7-092), with an opinion written by Judge Wesley G. Russell Jr.

Classic contempt

The couple divorced in 2015, and their PSA was incorporated in the final degree.

One section required the wife to continue to maintain a life insurance policy of $50,000 on herself, with the couple’s two children as beneficiaries.

She admitted at a hearing in August 2018 that she had terminated and cashed in the policy. But she argued that she had substantially complied with the section in the PSA, because she had a term insurance policy of the same amount and with the same beneficiaries through her work.

The circuit judge didn’t buy that argument, nor did the appeals court. Russell said she was ignoring “the plain language” of the PSA, which required keeping an existing policy in place.

The circuit court ordered her to obtain within 30 days a policy that met the terms of the PSA.

The appeals court noted that this sanction was remedial and “for the benefit of the husband as the injured party.”

That meant it was “a classic civil contempt sanction,” Russell said, adding the trial judge had not erred.

Dependents at tax time

The PSA stated that the couple could each claim a child as a dependent for income tax purposes until the older child could no longer be claimed; at that time, the couple would alternate claiming the younger son as a dependent.

After the older son achieved majority, the wife claimed the younger child for three straight years.

The wife agreed that she had made a mistake and that it cost her husband $1,066 in tax liability, but on appeal she made factual assertions to which the husband took issue.

At one point, she said she simply had not realized the older child’s aging out; but when the husband raised the issue, she had emailed him claiming that since the younger child lived with her, she got the dependent status, regardless of what the PSA said.

The appeals court said that the trial judge had had the opportunity to observe the witnesses and weigh their testimony. The judge had ordered the wife to pay $1,066 to the husband to remedy the situation. Again, Russell wrote, the sanction sought to restore the husband to the status he was entitled to under the PSA, so the matter was one of civil contempt.

‘Colorful’ language 

The PSA contains a section requiring both parties to refrain from doing “anything to interfere with the love and affection of the children for the other party.”

To establish the breach of these terms, the husband played a video, recorded by the older child, of his mother “making numerous negative statements about husband using what, charitably, could be described as colorful language.”

The wife did not dispute the behavior in the video, but she argued the conversation was with the older son after he was no longer a minor.

The court assessed a fine of $1,000 against the wife for breaching this section; the appeals court said that was error.

The fine was punitive in nature, Russell wrote, and more in the category of criminal contempt. In this point, the appeal court reversed the trial court and sent the case back.

The husband had been seeking $5,130 in attorneys’ fees under the PSA provision allowing fees to a party for enforcing the agreement. Russell wrote that the trial judge should determine how much of that fee was related to the reversed criminal contempt sanction. The court also directed the trial judge to determine how much of the fee claimed was incurred in making the appeal.

Eileen McNeil Newkirk of Richmond represented the wife; the husband’s lawyer was Benjamin R. Rand, also of Richmond.