Pellegrin v. Pellegrin

• Decision Date: 14 March 2000
• Docket Number: Record No. 2142-98-4.
• Citation: 525 S.E.2d 611,31 Va. App. 753
• Parties: John David PELLEGRIN v. Diane Lynn Bingman PELLEGRIN.
• Court: Virginia Court of Appeals

525 S.E.2d 611

31 Va. App. 753

John David PELLEGRIN v. Diane Lynn Bingman PELLEGRIN.

Record No. 2142-98-4.

Court of Appeals of Virginia, Alexandria.

March 14, 2000.

John D. Pellegrin, pro se.

David M. Levy (Surovell, Jackson, Colten & Dugan, on brief), Fairfax, for appellee.

Present: BENTON and ANNUNZIATA, JJ., and DUFF, Senior Judge.

ANNUNZIATA, Judge.

John David Pellegrin ("husband") appeals from the decision of the trial court, claiming it erred in refusing to terminate spousal support. Husband specifically contends that the court (1) improperly declined to impute income to his former spouse, Diane Lynn Bingman Pellegrin ("wife"); (2) failed to consider wife's gross income earned from rental properties that she owned; (3) failed to consider husband's disability; and (4) failed to find wife was cohabiting on a "substantially fulltime" basis with her paramour, all in contravention of various provisions of the parties' Property Settlement Agreement ("PSA") governing spousal support. Husband also contends the trial court erred in awarding attorney's fees to wife.

The parties were divorced by final decree of the Circuit Court of Fairfax County on March 5, 1991. The decree incorporated the parties' PSA, whose provisions provide the basis of husband's claims on appeal. The trial court denied husband's petition seeking to terminate the spousal support he was obligated to pay to wife under the PSA.

I.

Husband first contends the trial court erred in denying his petition to terminate support because the court failed to impute income to wife. The court's ruling is based on its construction of the PSA and its conclusion that since the agreement did not expressly require wife to seek and obtain employment, income could not be imputed to wife.

Husband contends the obligation is established by implication, noting Section 8 of the PSA, which reads, in pertinent part:

If, as of May 1, 1995, the wife is employed or thereafter becomes employed with an annual gross income in excess of $25,000, husband's obligation to pay spousal support and maintenance shall be reduced by 50 percent of the amount by which wife's gross annual income exceeds $25,000, or by fifty percent of the amount by which wife's monthly income exceeds $2,083.33.

The PSA also provides:

[S]pousal support payments ... shall in any event be reduced to a maximum of Two Thousand Dollars ($2,000.00) per month, after wife's graduation from college, or June 1, 1997, whichever first occurs.

Finally, the PSA, also provides that husband "shall pay, or cause to be paid, the tuition and related fees, not including room and board, for wife in any college, university with an accredited undergraduate and/or graduate degree program in which wife is enrolled, husband's liability and responsibility as to same to terminate as of June 1997 . . . ."

Husband contends that because the PSA required him to pay for wife's college and graduate school education, and contemplated decreases in his obligation to support her as her income increased, the PSA should be construed as requiring wife to seek employment. We agree.

It is well established that a property settlement agreement is a contract between the parties and that their rights and obligations are defined under it. See Douglas v. Hammett, 28 Va.App. 517, 523, 507 S.E.2d 98, 101 (1998)

(separation agreements and property settlement agreements are contracts); Jones v. Jones, 19 Va.App. 265, 268-69, 450 S.E.2d 762, 764 (1994) ("[W]e must apply the same rules of interpretation [to property settlement agreements as are] applicable to contracts generally."); Tiffany v. Tiffany, 1 Va.App. 11, 15, 332 S.E.2d 796, 799 (1985). "`"[W]here a contract is complete on its face, is plain and unambiguous in its terms, the court is not at liberty to search for its meaning beyond the instrument itself. . . ."'" Harris v. Woodrum, 3 Va.App. 428, 432, 350 S.E.2d 667, 669 (1986) (quoting Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983) (quoting Globe Iron Const. Co. v. First Nat. Bank of Boston, 205 Va. 841, 848, 140 S.E.2d 629, 633 (1965))). In determining the intent of the parties, courts will generally not infer covenants and promises which are not contained in the written provisions. However,

what is necessarily implied is as much a part of the instrument as if plainly expressed, and will be enforced as such. If the language of the instrument leaves the meaning of the parties in doubt, the court will take into consideration the occasion which gave rise to it, the obvious design of the parties, and the object to be attained, as well as the language of the instrument itself, and give effect to that construction which will effectuate the real intent and meaning of the parties.

Va. Ry. & Power Co. v. City of Richmond, 129 Va. 592, 611, 106 S.E. 529, 536 (1921) (citing Southern Ry. Co. v. Franklin & P. R. Co., 96 Va. 693, 32 S.E. 485 (1899)). In determining the parties' intent, courts

are never shut out from the same light which the parties enjoyed when the contract was executed, and in that view they are entitled to place themselves in the same situation which the parties who made the contract occupied, so as to view the circumstances as they viewed them and so to judge of the meaning of the words and of the correct application of the language to the things described.

Talbott v. Richmond & Danville R.R. Co., 72 Va. (31 Gratt.) 685 (1879); see also Paul v. Paul, 214 Va. 651, 653, 203 S.E.2d 123, 125 (1974)

("Ascertainment of the intent of the contracting parties is the cardinal rule in the construction of agreements. To do that the court will put itself in the situation occupied by the parties and look to the language employed, the subject matter and purpose of the parties, and all other pertinent circumstances.").

In the case before us, the record establishes that the parties agreed that husband's support obligation would be diminished as wife's income from employment increased. That wife would become employed was clearly within the contemplation of the parties. Furthermore, the parties agreed that the support obligation was keyed, in part, to wife earning her undergraduate degree, at which time husband's obligation to support was to diminish by a set amount. Furthermore, husband specifically agreed to pay the costs of wife's undergraduate and/or graduate degrees, an obligation which was to terminate seven years after the PSA was entered, specifically, June 1997. Given the circumstances attending the agreement, and the object to be attained, viz., that the level of support which wife could enjoy under the terms of the PSA was made dependant upon her ability to contribute to her own support or become wholly self-supporting, and that, in any event, wife's support would be reduced by a set amount upon obtaining her undergraduate degree, it follows, by implication, that the parties contemplated that wife would assume responsibility for her support within her capacity to earn income. In sum, we find that husband's agreement to pay for wife's educational costs after they divorced relates to wife's capacity to earn income, and when read together with the provisions requiring a reduction of support in relation to wife's earned income, established an implied contractual duty upon wife to make a reasonable effort to seek employment, at least, upon completion of her degree. Accordingly, because the trial court erred in finding no such duty arose from the terms of the contract, we remand for further proceedings based on the evidence presented.

II.

Husband further argues that rental income enjoyed by wife should be treated as "income from employment," but this contention previously was raised by husband in an earlier appeal and rejected by this Court in Pellegrin v. Pellegrin, No. 0143-96-4, 1996 WL 621643 (Va.Ct.App. Oct. 29, 1996). This issue therefore is barred as res judicata, and it will not be addressed further.

III.

Husband argues also that his obligation to pay spousal support should have been terminated or reduced under the terms of the PSA because he is disabled. The provision at issue states:

The parties agree that the [husband's] obligation to pay spousal support hereunder shall be subject to modification in the event of [husband's] disability causing reduction or loss of income on his part....

Husband failed to prove that he is disabled and that the disability caused a reduction in his income; indeed, he testified that he is "working harder than ever in his life," providing evidence which belies his claim of disability. This testimony plainly contradicted husband's earlier testimony as to a purported medical disability. Furthermore, husband presented no evidence that his medical disability, if any were proven, caused his claimed reduction in income, as required by the PSA. Consequently, we find no error in the trial court's conclusion that husband's health did not render him "disabled" within the meaning of the PSA.

Furthermore, we find no merit in husband's contention that the word "disability" should not be limited to a disability personal to him and should be extended to encompass diminished ability to earn sufficient income due to factors such as down-turns in the economy, his employment status, or changes in his client base. Section 8 of the PSA makes clear that the meaning ascribed to the term "disability" as contemplated by the parties was one personal to him.

Indeed, the law of the Commonwealth governing the disabled is consistent with that of the United States in deeming that a "`person with a disability' means any person who has a physical or mental impairment that substantially limits one or more of his major life activities . . . ." Code § 51.5-3; cf. 42 U.S.C.A. § 12102(2)(A). Because of Section 8's patent concern with the earning capacity of the husband, the term "disability" as used in that section may only be inferred to concern a disability personal to him.

In addition to the commonly...