Allen v. Allen

• Decision Date: 30 August 2016
• Docket Number: Record No. 1702–15–4.
• Citation: 66 Va.App. 586,789 S.E.2d 787
• Parties: Rebecca Allen v. Joseph William Allen.
• Court: Virginia Court of Appeals

66 Va.App. 586
789 S.E.2d 787

Rebecca Allen
v.
Joseph William Allen.

Record No. 1702–15–4.

Court of Appeals of Virginia, Alexandria.

Aug. 30, 2016.

789 S.E.2d 788

Daniel L. Gray, Fairfax (Adele M. Garmirian, Arlington; Cooper Ginsberg Gray, PLLC, on briefs), for appellant.

Thomas P. Silis (Trevor D. Anderson ; Silis & Associates, PLLC, on brief), Alexandria, for appellee.

Present: BEALES, ALSTON, and O'BRIEN, JJ.

ALSTON, Judge.

Rebecca Allen (wife) appeals the decision of the trial court overruling her plea in bar and granting Joseph William Allen (husband) a divorce. Wife argues first, that the trial court erred in overruling her plea in bar because the trial court found the parties' post-nuptial agreement to be a valid and enforceable contract and the post-nuptial agreement contained a provision barring husband from seeking a divorce for a period of 20 years. Second, wife argues that the trial court erred in entering a final decree of divorce because the post-nuptial agreement expressly barred husband from pursuing a dissolution of the marriage or obtaining any order or decree that would disqualify wife from husband's health insurance coverage. Third, wife argues that she is entitled to fees and costs associated with the divorce litigation and this appeal. We disagree and affirm the decision of the trial court.

789 S.E.2d 789

Background

The parties were lawfully married on June 21, 1980, in Gibson City, Illinois. On December 21, 2012, wife filed for divorce in the Fairfax County Circuit Court. Wife's divorce suit was subsequently non-suited upon the parties entering an agreement entitled “Memorandum of Understanding.” The Memorandum of Understanding was signed by the parties on November 25, 2013.

On April 4, 2014, the parties entered a post-nuptial agreement. The post-nuptial agreement invalidated the parties' Memorandum of Understanding and contained the following provision, which is at issue in this case:

CONTINUATION OF MARRIAGE . Husband shall not pursue a dissolution of the marriage for a period of 20 years or obtain any judicial order or decree that results in wife's disqualification of health insurance coverage by Caterpillar [Inc.] or any of its subsidiaries, prior to the 20 year period from the date of this agreement. If the husband takes any actions that result in the wife being disqualified from said health insurance coverage, he shall indemnify and hold the wife harmless for any expenses from medical treatment that would have otherwise been covered by said health insurance, provided however, husband's obligation shall cease in the event the health insurance coverage is no longer available through Caterpillar or any of its subsidiaries through no fault of husband or 20 years from the date of this agreement; whichever first occurs.

Husband filed for divorce on November 12, 2014, alleging that the parties had been living separate and apart for more than one year. On April 2, 2015, wife filed a plea in bar arguing that pursuant to the parties' post-nuptial agreement, husband was precluded from seeking a divorce for a period of 20 years. Specifically, wife argued that she was dependent on husband's employer's health insurance due to her increasing state of illness and that due consideration was exchanged for husband's promise not to seek a divorce.

On June 3, 2015, husband filed his response to wife's plea in bar. Husband admitted that he worked for Caterpillar Inc., that wife was covered under his Caterpillar health insurance policy, that his wife had become increasingly ill, and that Caterpillar would not continue to provide wife with health insurance coverage in the event of a divorce. Husband argued however, that (1) the provision at issue should be rejected on grounds that it violates Virginia public policy, (2) the provision is unconscionable on its face, and (3) the provision at issue provides wife with an alternative adequate remedy; holding husband personally liable for any out-of-pocket medical expenses incurred by wife.

The trial court heard oral argument on wife's plea in bar on June 10, 2015. Wife argued that the intent of the continuation of marriage provision was to ensure her continued health insurance coverage. Wife further argued that she proposed the provision and that due consideration was exchanged for it. Specifically, wife alleged that the consideration she provided was waiver of her right to portions of husband's 401(k). Wife maintained that husband understood the agreement and voluntarily entered into the contract with the advice of counsel and therefore, he should not be permitted to seek a divorce for a period of 20 years.

Husband responded, arguing that the continuation of marriage provision was not an absolute 20–year bar against him seeking a divorce. Rather, husband argued that the provision was intended to ensure that wife maintained her health insurance coverage for 20 years. Husband focused on the following language in the post-nuptial agreement: “If the husband takes any actions that result in the wife being disqualified from said health insurance coverage, he shall indemnify and hold the wife harmless for any expenses from medical treatment that would have otherwise been covered by said health insurance ....” Husband contended that this language provided a “safety valve” in the event the husband breached the agreement and failed to provide wife with health insurance. Husband's primary contention was that the purpose and intent of the parties entering the contract was to ensure that wife had medical coverage, not to prevent or bar husband from seeking a divorce for 20 years.

789 S.E.2d 790

On July 16, 2015, the trial court issued a letter opinion overruling wife's plea in bar. The trial court stated “[a]fter consideration of the pleadings and oral argument, the [c]ourt will overrule the Plea in Bar.” No further explanation was provided. An order reflecting the trial court's decision was filed by the parties and later entered by the trial court.

On July 30, 2015, wife filed a motion for reconsideration. Wife argued that the trial court's ruling was in error because it found that there was a valid and binding contract and overruled the plea in bar despite a contractual provision barring husband from seeking a divorce for 20 years. Wife further argued that it was error for the trial court not to dismiss husband's divorce suit in light of the trial court's determination that the post-nuptial agreement was a valid enforceable contract. Wife also alleged that husband entered the contract with full knowledge of its provisions, the binding effects of those provisions, as well as with the aid of legal counsel, and thus, knew he was agreeing not to seek a divorce for 20 years. Last, wife argued that the contract did not provide an adequate remedy at law in the event of a breach, but rather, prohibited husband from seeking a divorce.

On July 31, 2015, wife filed a motion for attorney's fees. Wife argued that she incurred substantial costs and attorney's fees for husband's intentional breach of the post-nuptial agreement. Specifically, wife argued that husband sought a divorce from wife less than seven months after entering the post-nuptial agreement, which specifically barred him from taking such action.

On August 14, 2015, husband filed his response to both wife's motion for reconsideration and motion for attorney's fees. With respect to the motion for reconsideration, husband argued that the trial court's ruling was not in error because the continuance of marriage provision provided wife with an adequate remedy at law in the event husband sought a divorce; namely, a damages clause making husband personally liable for any and all medical costs incurred by wife during the contemplated 20–year period. With respect to the motion for attorney's fees, husband argued first that he was entitled to fees because he attempted in good faith to resolve the matter while the trial court's decision on the plea in bar was still pending. Second, he contended that pursuant to the terms of the post-nuptial agreement, he was entitled to fees because he was successful in his defense against wife's plea in bar. In support, husband cited to paragraph 14 of the post-nuptial agreement, which provides in relevant part, “[a]ny such cost incurred by a party in the successful defense to any action for enforcement of any such provision shall be borne by the party seeking to enforce compliance.”

On October 15, 2015, the trial court entered a final order of divorce on grounds that the parties had been living separate and apart for more than one year. The trial court further ordered husband to pay wife's attorney's fees in the amount of $12,500.¹ Wife filed her notice of appeal on October 26, 2015. This appeal followed.

Analysis

I. Forbearance on Bringing or Prosecuting a Valid Suit for Divorce Constitutes Valid Consideration for Entering a Contract.

We start by acknowledging that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. Loving v. Virginia , 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Zablocki v....