Deluca v. Deluca, 082719 VACA, 1560-18-3

Docket Nº:1560-18-3
Attorney:Seth C. Weston (Law Office of Seth C. Weston, PLC, on briefs), for appellant. Brian R. Moore (The Moore Law Firm, PLLC, on brief), for appellee.
Judge Panel:Present: Judges Humphreys, Chafin and AtLee Argued at Lexington, Virginia
Case Date:August 27, 2019
Court:Court of Appeals of Virginia




No. 1560-18-3

Court of Appeals of Virginia

August 27, 2019


Seth C. Weston (Law Office of Seth C. Weston, PLC, on briefs), for appellant.

Brian R. Moore (The Moore Law Firm, PLLC, on brief), for appellee.

Present: Judges Humphreys, Chafin and AtLee Argued at Lexington, Virginia



Peter Anthony DeLuca ("husband") appeals the decision of the Circuit Court of Amherst County that held him in contempt of court for failure to pay spousal support to Tracie Ondich DeLuca ("wife").1 On appeal, husband assigns twelve errors to the circuit court's rulings. Additionally, wife sets forth three assignments of cross-error. For the reasons that follow, we affirm in part and reverse in part.

I. Background

"[W]e view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Congdon v. Congdon, 40 Va.App. 255, 258 (2003).

Husband and wife married on October 3, 1992, and they had one child together. On January 25, 2008, husband and wife entered into a property settlement agreement ("PSA"). The parties legally divorced on January 3, 2013, and the PSA was incorporated into, but not merged with, the final decree of divorce.

Relevant to this appeal, the PSA requires husband to pay the mortgage on the marital home, which was to be titled solely in wife's name. Paragraph 4 of the PSA states that "[h]usband shall support [w]ife in the manner to which she is accustomed and is currently being supported, recognizing the need of [w]ife to educate and nurture [the] child." Paragraph 6 provides that wife shall receive a fifty-percent (50%) share of all of [h]usband's military retirement pay and benefits. She shall be entitled to her legal share of any and all additional pay and benefits due her, having been in the marriage for more than fifteen years of [h]usband's active-duty service time for retirement.

Additionally, the parties agreed that each party would pay his or her own attorney's fees.

A. Events Leading to the First Appeal - DeLuca 1

On May 28, 2013, wife filed a motion to show cause, alleging that husband had failed to comply with the spousal support obligations in the PSA and a declaratory judgment action asking the circuit court to interpret the PSA. Because the PSA did not set a specific dollar amount of spousal support, the circuit court ordered an evidentiary hearing to allow it to perform a retrospective analysis to determine whether husband had complied with the PSA.

After hearing the evidence, the circuit court determined that the relevant time period was the year prior to the parties entering the agreement. During that time, wife received an average of $4, 373 each month in support from husband. Thus, the circuit court concluded that $4, 373 was the amount the parties intended as the spousal support obligation under the PSA. Husband paid less than that each month from May 4, 2010 through April 1, 2014. Relying on the numbers in Exhibit E presented by wife, the circuit court set the arrearages at $121, 976.

The circuit court asked wife's attorney to prepare an order consistent with its ruling. The proposed order stated that husband owed "$4, 373.00 net per month after taxes" and that husband had failed to meet his support obligation "in the net amount after taxes of $121, 976.00." Before entering the order, the circuit court informed the parties that it had crossed out "after taxes" in both places. The order stated that it was a final order on the issue of support but that the circuit court took the issue of contempt under advisement.

Husband appealed to this Court. In an unpublished opinion, a panel of this Court held that the agreement was unambiguous and the plain meaning of the PSA required husband to pay "a sum certain in monthly spousal support."[2] DeLuca v. DeLuca, No. 1158-14-3, at *8 (Va. Ct. App. May 19, 2015) ("DeLuca 1"). It affirmed the circuit court's award of $4, 373 per month.

B. Events Leading to the Second Appeal - DeLuca 2

While DeLuca 1 was pending before this Court, husband voluntarily retired from his position with the military. He began receiving his military retirement pay, and, as required under the PSA, wife began receiving $4, 608.25 monthly, her fifty-percent share of husband's pension. Simultaneous with his retirement, husband stopped paying spousal support, leading wife to file her second motion to show cause.

Husband argued that he should receive a monthly credit against his spousal support obligation each month for the amount of wife's share of the pension payment. He argued that the spousal support was not supposed to be a sum certain but rather was intended to support a certain lifestyle. According to husband, the parties intended that the retirement payment would replace the spousal support to support wife in that lifestyle. Wife argued that the retirement payment was intended as a separate obligation that was part of the equitable distribution of marital assets, not spousal support.

The circuit court initially ruled in favor of husband, finding that he was entitled to a credit. The circuit court noted that wife's interpretation would result in wife receiving nearly the entire amount of husband's retirement pay, which it deemed a "tortured construction of the agreement."

Wife filed a motion to reconsider. The circuit court granted the motion and withdrew its prior ruling, finding that husband was not entitled to a credit because the PSA did not contain language linking the two provisions, nor did it use the word "credit." The circuit court noted that it made the ruling "with great reluctance" because the "financial impact doesn't seem right," but that the court was legally bound to enforce the terms agreed upon by the parties.

Additionally, the circuit court recalculated the arrearages and stated that husband was not required to pay the state and federal taxes on the spousal support, an issue that arose during the hearing on the motion to reconsider. As it had before, the circuit court took the issue of contempt under advisement.

Husband again appealed the decision to this Court. Prior to oral arguments, a panel of this Court asked the parties to provide supplemental briefing on whether it had jurisdiction over the appeal since the circuit court did not adjudicate the issue of contempt. Ultimately, the panel determined it did not have subject matter jurisdiction because the circuit court's order was not final. The order lacked finality because it took the contempt issue under advisement and thus did not dispose of the whole case. See DeLuca v. DeLuca, No. 1249-16-3, at *2 (Va. Ct. App. Mar. 7, 2017) (unpublished order) ("DeLuca 2"). Husband argued that the order in DeLuca 1 similarly lacked finality, but, because the issue was beyond the scope of the appeal and no motion had been filed, this Court declined to address it.

C. Events Leading to the Current Appeal

In response to the ruling in DeLuca 2, husband filed two motions with the circuit court. In the first motion, he asked the circuit court to declare DeLuca 1 void ab initio for lack of subject matter jurisdiction. He argued that the DeLuca 1 order contained the same lack of finality as the order in DeLuca 2. The circuit court denied husband's motion, noting that DeLuca 2 was unpublished and did not address DeLuca 1 and therefore did not require voiding DeLuca 1. Because this Court had addressed the merits in DeLuca 1, the circuit court determined that it meant either "explicitly or implicitly . . . the Court felt that it had jurisdiction in that matter."

Husband's second motion asked the circuit court for leave to file a late motion for declaratory judgment. He argued that the declaratory judgment action was necessary because he would have no way to appeal the PSA interpretation rulings if the court did not hold him in contempt. Husband contends he did not want to relitigate issues; he only wanted the circuit court to issue an order incorporating all of its prior orders into the declaratory judgment action. The circuit court denied the motion, deeming it unnecessary to issue an order about orders long since issued.

Wife filed a third motion to show cause arguing that husband still was not paying spousal support and also was not paying the entire mortgage payment. On October 18, 2017, the circuit court ruled on all three motions to show cause. It determined that husband was not guilty of contempt on the first motion to show cause because he was unaware of the exact amount of support owed. Nor was he in contempt on the second motion to show cause because...

To continue reading