Courtney v. Courtney, Record No. 2124-05-1 (Va. App. 6/20/2006)

Decision Date20 June 2006
Docket NumberRecord No. 2165-05-1.,Record No. 2124-05-1.
CourtVirginia Court of Appeals

Appeal from the Circuit Court of the City of Virginia Beach A. Bonwill Shockley, Judge.

Robert B. Jeffries (Law Offices of Diane Fener, P.C., on briefs), for John F. Courtney.

Rita Ros-Planas (Rita Ros-Planas, P.C., on briefs), for Cynthia H. Courtney.

Present: Judges Frank, Humphreys and Kelsey.



John F. Courtney (husband) and Cynthia H. Courtney (wife) have filed cross-appeals from the trial court's rulings resolving issues related to their divorce. Husband contends the trial court erred in: (1) finding that the duration of his spousal support obligation is governed by Code § 20-109(D); (2) finding that the spousal support provision of the stipulation agreement is not modifiable by the court; (3) finding wife was not estopped from arguing that the agreement cannot be modified; (4) refusing to allow parol evidence in interpreting the duration of spousal and child support awards; (5) finding the agreement was not unconscionable; and (6) finding that the parties had not reconciled. In her cross-appeal, wife contends the trial court erred in (1) refusing to award her attorney's fees incurred by her in enforcing and defending the terms of the settlement agreement; and (2) refusing to divide the marital share of husband's military pension. Wife also seeks attorney's fees on appeal. For the reasons stated, we affirm in part and reverse in part.


Husband and wife were married on March 1, 1983 and separated on or about February 7, 2001. On May 10, 2001, the parties executed a stipulation agreement, which addressed such issues as child and spousal support, child custody, equitable distribution, debts, health insurance, and attorney's fees.

Portions of the stipulation relevant to the issues on appeal are as follows:

WHEREAS, the parties mutually desire to effect a partial settlement and adjustment of rights and questions arising from their marital status and separation.

* * * * * * *

NOW, THEREFORE, in consideration of the mutual promises, covenants, agreements, and payments hereinafter contained, without in any way attempting to facilitate divorce or separation, but rather in recognition of the irreconcilability of their differences, the prior and existing separation of the parties, the parties having considered their earning capacities, obligations, needs and financial resources, their education and training, and their ability to work and opportunity to secure employment, the standard of living established during their marriage, the duration of the marriage, the age, physical and mental condition of the parties, and the equities between the parties, and in order to partially settle their property rights, the parties do hereby covenant and agree as follows:

* * * * * * *

1. GENERAL PROPERTY RIGHTS: a) Except as otherwise provided herein, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may have or hereafter acquire to share the property or the estate of the other as a result of the marital relationship.

* * * * * * * 2. WAIVER OF EQUITABLE DISTRIBUTION OF PROPERTY: The parties acknowledge that they are aware that the Commonwealth of Virginia provides for equitable distribution of property, both "real" and "personal." Both parties hereby waive any rights or benefits of any nature whatsoever which they may have acquired or to which they may be entitled under the laws or statutes providing for equitable distribution and each agree that the distribution of their property, monetary or otherwise, shall be governed as set forth in this Agreement. The parties further represent that they understand the meaning of equitable distribution and its application to their estate and property. Code of Virginia Section 20-107.3 (Virginia's Equitable Distribution Law), to seek a monetary award, a percentage of a pension, profit-sharing, deferred compensation plans and/or retirement benefits, a partition of jointly-owned or jointly-titled marital property or a division or transfer or jointly-owned or jointly-titled marital property, except as herein agreed, and each party covenants not to sue the other party therefore.

* * * * * * *

14. SPOUSAL AND CHILD SUPPORT: a) Husband shall pay to the Wife, as and for combined spousal and child support $2,250.00 per month, payable $1,125 on the 1st and $1,125 on the 15th of each and every month.

b) Husband shall be solely responsible for all extracurricular activities of the child, including but not limited to payment of tennis lessons.

* * * * * * *

19. EQUITABLE DISTRIBUTION: The parties shall execute an addendum to the Separation Agreement to decide how to distribute their assets, including but not limited to all intangibles and all real estate owned by the parties, provided the Husband verifies all sales of real estate properties to the Wife by copying her on any sales and verify for her his monthly cash flow due to rental income, second mortgage payments and rehabilitation projects.

* * * * * * *

23. ATTORNEY'S FEES: a) Each party shall pay own attorney's fees. Husband acknowledges that Rita Ros-Planas, Esquire is counsel for Wife and that he has been advised to seek independent legal counsel. b) Should either party be required to retain counsel or initiate litigation to enforce or defend any provisions of this Agreement the other shall be responsible for and pay forthwith upon presentation of a statement for same, any and all expenses incurred, including, but not limited to, reasonable legal fees, court cost, investigator's fees and travel.

(Emphases added).

Wife filed a bill of complaint for divorce on April 19, 2004 praying inter alia, that "the partial agreement dated May 10, 2001 between the parties be affirmed and ratified"; that support be modified "due to a material change in circumstances;" that the court make an equitable distribution award under Code § 20-107.3; and that the court direct payment of a percentage of the marital share of any pension or retirement benefits. Wife alleged the stipulation reserved equitable distribution "for further agreement or adjudication."

In his answer, husband alleged the parties separated on December 10, 2003, not February 7, 2001 as wife alleged in her bill of complaint. Husband further denied that the copy of the stipulation attached to wife's bill of complaint is a "true and accurate copy" of the actual stipulation. In his cross-bill, husband alleged desertion and asked inter alia that "both parties be granted equitable distribution . . . ."

Wife filed pendente lite motions for an increase in spousal support on April 19, 2004, June 10, 2004, and August 11, 2004.

Wife's motion for the entry of the stipulation was heard on July 16, 2004. Husband indicated he was placing the validity of that agreement into dispute. The trial court opined the issue of validity required a full hearing and referred the matter to a commissioner in chancery.

By pendente lite order entered October 1, 2004 the trial court found the stipulation to be valid, but did not ratify it at that time.

A commissioner in chancery conducted a hearing, filed his report, and both parties filed exceptions. The trial court heard the parties' exceptions on March 18, 2005. At that hearing the court ruled that the amount of spousal support is not modifiable and would continue until death or wife's remarriage. Husband continued to challenge the validity of the stipulation.

On May 19, 2005, the trial court heard argument on attorney's fees, equitable distribution, and reconciliation. Husband argued that because wife asked that the unitary award be modified, she too attacked the validity of the stipulation. The trial court ratified, affirmed, and incorporated the parties' stipulation agreement into the final decree of divorce. The court found the contract between the parties was valid and unambiguous, and it was executed with no overreaching by either party. Further, the court found that the parties had not reconciled during the period of June 2003 through December 2003.

In denying wife's request for attorney's fees, which she contended were mandated by the stipulation, the trial court agreed with husband's argument and found, essentially, that both parties incurred attorney's fees to defend and enforce the stipulation.

The trial court also found wife was not entitled to a share of husband's military pension because of the support she is receiving. The trial court did not find that wife waived her right to an equitable distribution award, holding that the waiver language was "boilerplate" and that the "binding part of the agreement is paragraph 19 since it is the more specific as to equitable distribution . . . ."

This appeal follows.


Husband contends the trial court erred in determining that Code § 20-109(D) supplies a "default duration" in stipulation agreements to pay spousal support. Husband argues that neither Code § 20-109(D) nor public policy establishes that if an agreement to pay spousal support omits a term of duration, support must be paid until one of the parties dies or the recipient of the support remarries. We disagree.

Clearly, nothing in the agreement suggests the support was for a defined duration.

Contracts are construed as written, without adding terms that were not included by the parties. Wilson [v. Holyfield], 227 Va. [184,] 187, 313 S.E.2d [396,] 398 [(1984)]. Where the terms in a contract are clear and unambiguous, the contract is construed according to its plain meaning. Bridgestone/Firestone v. Prince William Square Assocs., 250 Va. 402, 407, 463 S.E.2d 661, 664 (1995); Ross v. Craw, 231 Va. 206, 212, 343 S.E.2d 312, 316 (1986). A contract is not ambiguous...

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