Kahn v. McNicholas

• Decision Date: 31 January 2017
• Docket Number: Record No. 0982-16-4
• Citation: 67 Va.App. 215,795 S.E.2d 485
• Parties: Arthur G. Kahn v. Eileen McNicholas
• Court: Virginia Court of Appeals

67 Va.App. 215

795 S.E.2d 485

Arthur G. Kahn

v.Eileen McNicholas

Record No. 0982-16-4

Court of Appeals of Virginia, Alexandria.

JANUARY 31, 2017

Arthur G. Kahn, pro se.

Amir Raminpour (Sandground, West, Silek & Raminpour, PLC, on brief), for appellee.

Present: Judges Alston, Chafin and Senior Judge Annunziata

OPINION BY JUDGE TERESA M. CHAFIN

On June 8, 2016, the Circuit Court of the City of Alexandria held Arthur G. Kahn in contempt of court for failing to pay his ex-wife, Eileen McNicholas, a sum of money pursuant to the terms of the Separation and Property Settlement Agreement ("PSA") incorporated into the parties' final decree of divorce. On appeal, Kahn argues that the circuit court did not have the authority to enforce the payment of the monetary awards at issue through its contempt power. Kahn also contends that the circuit court erred by refusing to impose sanctions against McNicholas and her attorney based on their misrepresentation that the divorce decree ordered Kahn to pay spousal support. For the reasons that follow, we affirm the circuit court's decision.

I. BACKGROUND

"When reviewing a [circuit] court's decision on appeal, we 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, 578 S.E.2d 833, 835 (2003). In the present case, however, most of the relevant facts are undisputed.

Kahn and McNicholas were married on December 6, 2002, and they mutually and voluntarily separated with the intent to end their marriage on August 6, 2013. The parties entered into the aforementioned PSA on March 3, 2014, in anticipation of their divorce. Kahn, a licensed practicing attorney, drafted the agreement. The PSA divided the parties' marital property and addressed their future spousal support obligations.¹

Sections 2, 3, and 4 of the PSA are pertinent to this appeal. Section 2 of the PSA, entitled "Lump Sum Payment," established one of the monthly payment obligations underlying the contempt finding at issue in this case. That section stated, "Husband and Wife agree that Wife shall be paid a lump sum of forty thousand dollars ($40,000.00) in 16 equal monthly payments of two thousand five hundred dollars ($2,500.00), beginning September 2013 and ending with husband's last monthly payment in December 2014."

In Section 3 of the PSA, entitled "Alimony," both parties waived their right to receive future alimony or spousal support payments. Section 3 of the PSA stated:

Husband and Wife hereby release and relinquish any and all right to alimony or support which he or she may have from the other as a result of this marriage, and each of them hereby expressly acknowledges that he or she understands that the waiver of alimony, as herein provided, constitutes an irrevocable waiver of all support rights he or she might have from the other, and that he or she can never again look to the other for support.

Section 4 of the PSA created an additional monthly payment obligation pertinent to the contempt finding at issue. That section provided that, "In addition to the aforesaid [lump sum] payment, Husband agrees to pay Wife's health insurance and car insurance premiums in their present amount for the period ending December 31, 2014, at which time Husband will terminate said payments."

The circuit court entered a final decree granting the parties a divorce on May 29, 2014. Like the PSA, the final decree of divorce was drafted by Kahn. The final decree expressly affirmed and ratified the parties' PSA, and incorporated that agreement into the order. In a section entitled "Notices to Parties Pursuant to Virginia Code § 20–107.1(H)," the final decree contained the following provision pertaining to the parties' spousal support obligations:

The amount of periodic support expressed in fixed sums, along with the payment interval, the date payments are due, and the date the first payment is due are as follows:

The current amount of ... periodic spousal support is as follows:

Periodic Support: $2,500

Payment Interval: Monthly

Payment Due Date: 15th day of the month

First Payment Due: September 15, 2013

Last Payment Due: December 15, 2014

(Emphasis added). This section of the final decree also specified that no support arrearages existed when the order was entered, and set forth the method by which support payments would be credited in the event of an arrearage. Additionally, this section stated that any unpaid support obligations created judgments by operation of law as they became due, and noted that Kahn had an additional obligation to maintain medical and dental insurance for McNicholas until December 31, 2014.² Both parties endorsed the final decree without objection.

Kahn complied with the terms of the parties' PSA and their final decree of divorce for ten months. He paid McNicholas the monthly installments on the lump sum payment and reimbursed her for her health and dental insurance premiums from September 2013 until June 2014. He also paid McNicholas $2,700 in January 2015. Kahn, however, failed to pay McNicholas monthly payments or reimburse her for her insurance premiums from July 2014 through December 2014. Kahn refused to make these payments because he claimed that McNicholas's prior adultery invalidated the PSA.

On October 6, 2015, McNicholas filed a petition requesting the circuit court to enforce the parties' final divorce decree. The petition alleged that Kahn had failed to reimburse McNicholas for her insurance premiums and make six of the monthly payments required by the PSA and divorce decree, resulting in an arrearage of $13,488. Notably, however, the petition referred to Kahn's payment obligations as "periodic spousal support." The petition requested the circuit court to issue a rule to show cause requiring Kahn to appear and explain his failure to comply with the court's order. The petition also requested the circuit court to hold Kahn in contempt of court for his noncompliance, and award McNicholas the attorney's fees and costs associated with the actions required to enforce the order.

The circuit court issued a rule to show cause commanding Kahn to appear and explain why he should not be held in contempt of court and fined or imprisoned for his failure to comply with the parties' final decree of divorce. While Kahn admitted that he had failed to make the payments at issue in McNicholas's petition, he argued that the circuit court could not enforce the payments specified in the parties' PSA through its contempt power. Kahn claimed that the circuit court could only use its contempt power to enforce the payment of spousal or child support obligations. Although McNicholas's petition referred to Kahn's payment obligations as "spousal support," Kahn noted that McNicholas unambiguously waived her right to receive spousal support payments in the PSA. Thus, Kahn maintained that the payments at issue could not be considered spousal support payments, and therefore, they could not be enforced through contempt proceedings.

The circuit court disagreed with Kahn's argument and found the evidence presented sufficient to hold him in contempt of court.

The circuit court deferred entering an order to that effect, however, to give Kahn an opportunity to pay the arrearage. In an order entered on November 25, 2015, the circuit court continued the matter until December 23, 2015, to allow Kahn the opportunity "to pay $13,488.00 and an additional $1,000.00 in attorney's fees" to McNicholas. The order then expressly stated that Kahn would be held in contempt of court if he failed to make the payment before December 23, 2015. The circuit court's order did not characterize Kahn's payment obligations as "spousal support" or "alimony."

On December 1, 2015, Kahn filed a notice of appeal pertaining to the November 25, 2015 order. This Court dismissed the appeal on May 12, 2016, because the November 25, 2015 order was not a final decision. See Kahn v. McNicholas, No. 1974–15–4 (Va. Ct. App. May 12, 2016). On May 31, 2016, McNicholas filed a motion in the circuit court requesting that Kahn be held in contempt of court for failing to comply with the November 25, 2015 order and the parties' final decree of divorce.

Although Kahn admitted that he had failed to pay McNicholas any portion of the $14,488 that he was ordered to pay in the November 25, 2015 order, Kahn argued that the order and the underlying rule to show cause should be vacated because McNicholas and her attorney intentionally misrepresented that the payment obligations at issue were spousal support rather than monetary awards. Citing Brown v. Brown, 5 Va.App. 238, 246, 361 S.E.2d 364, 368 (1987), Kahn argued that monetary awards such as the payment obligations at issue in this case were "the equivalent of [money judgments] and must be satisfied as such." As the payment obligations at issue could only be enforced in the same manner as money judgments, Kahn contended that the circuit court "lacked authority to order mandatory payment subject to enforcement by its contempt powers." Id. at 247, 361 S.E.2d at 369. Kahn also requested the circuit court to impose sanctions against McNicholas and her attorney in the amount of $15,000.

McNicholas admitted that she was not entitled to receive alimony or spousal support under the terms of the parties' PSA.³ She explained, however, that her use of the term "spousal support" in the petition for the rule to show cause was scrivener's error attributable to Kahn's use of that term in the parties' final decree of divorce. Regardless of whether Kahn's payment obligations were characterized as spousal support or monetary awards, McNicholas maintained that the circuit court could enforce the terms of its final decree incorporating the parties' PSA through its contempt power.

The circuit court held Kahn in contempt of court for his willful failure to pay McNicholas $14,488 pursuant to the November 25, 2015 order and the parties' final decree of divorce. Although the circuit...