Miller v. Hawkins

• Decision Date: 24 March 1992
• Docket Number: No. 0106-91-1,0106-91-1
• Parties: Keith Morris MILLER v. Sharon Kaye Johnson Miller HAWKINS. Record
• Court: Virginia Court of Appeals

Page 861

415 S.E.2d 861

14 Va.App. 192

Keith Morris MILLER v. Sharon Kaye Johnson Miller HAWKINS.

Record No. 0106-91-1.

Court of Appeals of Virginia.

March 24, 1992.

Morris H. Fine, Virginia Beach (M. Michelle P. McCracken, Fine, Fine, Legum & Fine, on brief), for appellant.

W. Jeffrey Overton, Norfolk (Rawls, Habel & Rawls, Suffolk, on brief), for appellee.

Present: BAKER, MOON and WILLIS, JJ.

JOSEPH E. BAKER, Judge.

In this appeal, we must decide whether the remarriage of Sharon Kaye Johnson Miller Hawkins (wife) terminates the obligation of Keith Morris Miller (husband) to pay spousal support to her. We find that, on the record of this case, husband's obligation was terminated by and at the time of wife's remarriage.

By decree entered on December 14, 1987, the Circuit Court of the City of Chesapeake (trial court) dissolved the parties' marriage. The decree approved, incorporated and ordered the parties to abide by the terms of a "Property Settlement and Stipulation Agreement" (the agreement) executed by the parties on February 18, 1987. Wife remarried in April 1988. Beginning in May 1988, husband discontinued making spousal support payments to wife. On May 29, 1990, wife filed a petition in the trial court requesting, among other things, ¹ that a judgment be entered in her favor against husband for $10,600 in spousal support arrearages.

In response, husband asserted that the provisions of Code §§ 20-109 and 20-109.1 terminated his spousal support obligation when wife remarried in April 1988. The relevant portion of Code § 20-109 provides: "Upon the death or remarriage of the spouse receiving support, spousal support shall terminate unless otherwise provided by stipulation or contract."

Code § 20-109.1 provides, in relevant part:

Where the court affirms, ratifies and incorporates by reference in its decree such agreement or provision thereof, it shall be deemed for all purposes to be a term of the decree, and enforceable in the same manner as any provision of such decree. The provisions of this section shall apply to any decree hereinbefore or hereinafter entered affirming, ratifying and incorporating an agreement as provided herein. Upon the death or remarriage of the spouse receiving support, spousal support shall terminate unless otherwise provided by stipulation or contract (emphasis added).

Wife argues that, when read with other provisions of the agreement, Paragraph 7 of the agreement discloses a clear intent of the parties that the husband would continue spousal support payments notwithstanding her remarriage. Paragraph 7 provides:

Husband agrees to pay Wife a reasonable sum for spousal support. Until such time as the child of the parties shall attain the age of 18 years or graduates from high school, whichever shall last occur, Husband agrees to pay Wife as spousal support the sum of $100.00 per week. Thereafter, Husband agrees to pay Wife the sum of $200.00 per week as spousal support until the child of the parties attains the age of 23 years or completes 4 years of college education, whichever event shall first occur; provided, however, that in the event Wife should pay in full the first lien deed of trust indebtedness owed against the above-described real estate prior to her re-marriage, then the weekly amount to be paid by Husband to Wife as spousal support shall be re-negotiated or set by the Court if the parties cannot agree.

Wife first asserts that Paragraph 7 created a lump sum award which is vested and may not be modified. She relies on our decision in Mallery-Sayre v. Mallery, 6 Va.App. 471, 370 S.E.2d 113 (1988). Her reliance is misplaced. In that case we said:

A periodic payment is a specified amount payable at designated intervals with the sum total uncertain; the amount of the payment can be modified by the court, if one of the parties can show a change in circumstances, or the amount of payment can be modified by agreement of the parties. The total amount of periodic support due is contingent upon future events; the right to each periodic payment becomes fixed and vested only as each payment is due. See Eaton v. Davis, 176 Va. 330, 342, 10 S.E.2d 893, 898 (1940) ("[A]limony to accrue in future monthly installments though fixed by a final decree, is not a vested property right.") In contrast, a lump sum award is an order to pay a specific amount. The lump sum award is a fixed obligation to pay a sum certain when the decree is entered but the amount may be payable either in deferred installments or at once. That the payment method may allow for deferred installment payments does not change the character of the award. Thus, the right to the amount, whether payable immediately or in installments, is fixed and vested at the time....

Id. at 474-75, 370 S.E.2d at 115.

Paragraph 7 provides that spousal support payments are to be made at designated intervals, with the sum total uncertain, may be modified, and that no fixed sum is vested except as it becomes due. The spousal support obligation in the agreement and decree provided for periodic payments subject to termination upon the recipient's remarriage, unless the language contained in the agreement created an exception to the termination clauses of Code §§ 20-109 and 20-109.1.

Wife asserts further that if the provisions of the agreement for spousal support did not create a lump sum award, nevertheless the agreement requires that the payments continue after her remarriage.

Husband argues that to avoid the termination provisions of those statutes, the language in the agreement must specifically demonstrate an intention of the parties that such payments continue after remarriage. While no Virginia appellate court has decided whether or what specificity is required, the decisions of several sister state...