Ross v. Craw

• Decision Date: 25 April 1986
• Docket Number: No. 830483,830483
• Citation: 343 S.E.2d 312,231 Va. 206
• Parties: John Thomas ROSS v. Page Farland (Ross) CRAW. Record
• Court: Virginia Supreme Court

Page 312

343 S.E.2d 312

231 Va. 206

John Thomas ROSS v. Page Farland (Ross) CRAW.

Record No. 830483.

Supreme Court of Virginia.

April 25, 1986.

Donald W. Lemons (Minor & Lemons, P.C., Richmond, on brief), for appellant.

Douglas L. Fleming, Jr. (William B. Hanes, Hanes, Sevila, Saunders & McCahill, Leesburg, on brief), for appellee.

Present: All the Justices.

COCHRAN, Justice.

By decree entered by the trial court on March 1, 1976, Page Farland Ross, now Craw, and John Thomas Ross were divorced a vinculo matrimonii on the ground of uninterrupted separation for more than one year. A property settlement agreement included provisions granting custody of the couple's two minor children to the mother and requiring the father to pay child support and the costs of secondary and higher education for the children, health insurance for them, and life insurance for their benefit. The agreement was approved by the trial court and incorporated into the final divorce decree.

Unfortunately, entry of this decree did not bring to a conclusion the bitter litigation between the parties. The present appeal presents the question whether the trial court erred in construing the child support provision of the property settlement agreement.

The original agreement, dated July 31, 1974, contained the following provisions:

2. The Husband hereby agrees to pay to the wife the sum of FOUR HUNDRED DOLLARS ($400.00) per month for the maintenance and support of each of the aforesaid minor children of the parties, said payments to commence on August 1, 1974, and payable each and every month thereafter on the 1st day of each month until such time as each of said children shall have reached the age of majority, married, or otherwise become emancipated. In the event the wife has excess funds which are not required for the maintenance and support of said children, she agrees to place the same in a savings account for said children for their future maintenance and support and education. It is specifically understood and agreed between the parties hereto that the amount of maintenance and support for each of the said children may not at anytime be decreased; that the amount of maintenance and support for each of the said children may be increased annually in proportion to the increase in cost of living as determined by the Federal Cost of Living Index for the United States, using January 1, 1974, as the base year therefor.

An addendum, dated October 7, 1974, amended a provision irrelevant to the present controversy. A second addendum, dated February 27, 1976, amended several provisions of the agreement including paragraph 2, which was rewritten to read as follows:

2. The husband hereby agrees to pay to the wife TWO HUNDRED TWENTY FIVE DOLLARS ($225.00) per month for the maintenance and support of each of the aforesaid minor children of the parties, said payments to commence on August 1, 1975, and payable each and every month thereafter on the first of each month until such time that each of said children shall reach the age of twenty-one (21) years, married, or otherwise become emancipated. The amount of maintenance and support for each of the said children may be increased annually in proportion to the increase in cost of living as determined by the Federal Cost of Living Index for the United States, using January 1, 1974, as the base year therefor.

From January 1977 through August 1980 Ross paid the base support payments plus the percentage of increase shown on the Consumer Price Index, which the parties agree was the standard intended in the agreement. Beginning in September 1980 Ross reduced his payments to the base payments of $225 for each child. Craw moved the trial court for an order requiring Ross to show cause why he should not be held in contempt for reducing the payments. The motion was heard at the same time the court heard evidence in support of Ross's petition for a reduction in support payments. The trial court, by decree entered June 24, 1982, ruled that the language of paragraph 2 of the property settlement agreement was not sufficiently definite to justify holding Ross in contempt. The court denied Craw's motion without prejudice to the contractual rights of the parties, if any, to seek enforcement of the agreement by other proceedings. In the same decree, the court granted Craw's motion to strike Ross's evidence in support of his petition for a reduction in support payments.

Earlier, on June 23, 1981, Craw had filed a petition to enforce the property settlement agreement or in the alternative to have the court order an increase in the amount of child support to be paid by Ross. The court heard evidence ore tenus on September 27, 1982, and agreed with counsel for the parties that evidence taken in the recently concluded contempt proceeding also should be considered.

In a letter opinion dated November 10, 1982, the trial judge stated that, although the contract, prepared by Craw's counsel, must be construed against Craw, the court must give effect to the language used, if possible, "consistent with the other provisions of the contract, and the circumstances and intent of the parties." He then stated that to construe "may" as leaving increases in payments to the discretion of the father would make inclusion of the provision in the agreement "an idle act," because a father may always elect to increase support payments. The judge concluded that Craw's construction of the contract giving her the election to require increased payments in accordance with the Consumer Price Index was reasonable and overcame the adverse presumption which she faced as the drafter of the agreement. Finally, the judge was of opinion that Ross would be entitled to an election to reduce payments if a decline in the Consumer Price Index should occur.

The opinion was incorporated into the final decree entered December 21, 1982, which awarded Craw judgment for arrearages, with interest, in the amount of $12,552.37, and directed Ross to pay the monthly child support payments of $225 per child plus or minus an annual adjustment determined by the Consumer Price Index. On appeal, the parties agree that the crucial question is whether the court erred in construing the word "may" in the agreement to be mandatory.

Both parties were represented by counsel during the negotiations leading to the original property settlement agreement and the addendum modifying the child support obligation. In the course of the two evidentiary hearings, the court heard testimony from Ross and his former attorney, Charles S. Cox, Jr., and from Craw and her former attorney, Jean Harrison Clements.

Ross testified that before the parties reached their original agreement they met three times to negotiate an agreement. At their first meeting, held at Cox's office with both attorneys present, Ross refused to agree to any terms proposed by Craw, including the Consumer Price Index provision. He said that, given the infaltionary condition of the economy at the time, he knew the cost-of-living index could increase his child support obligation to a "prohibitive point" for him; he told Craw and Clements he would not agree to a mandatory increase based on the Consumer Price Index.

Following this meeting, Ross said he and Craw met at their home and discussed every aspect of the agreement, including the support and cost-of-living provisions. Finally, the parties met at Clements's office, again with both attorneys present. Ross testified that he raised questions about the cost-of-living increase, and Clements told him he "could have the penalty of going to jail" if the increase were mandatory and he failed to pay it. Ross responded that he could not agree to such a mandatory provision. According to Ross, Clements then read the clause using the word "may" and, upon Cox's assertion that he was satisfied with the language, Ross agreed to its inclusion in the agreement. Had Clements not explained the language as discretionary, Ross said he would not have agreed to its inclusion.

Ross testified that he intended the increase to be discretionary. Facing the prospect of financial difficulty resulting from failure of a business venture in which he was then involved, he intended to pay the cost-of-living increase only so long as he was financially able.

Prior to execution of the addendum reducing the child support obligation, Ross testified, the parties met again at Clements's office, with Clements, Cox, and Craw's father also present. Language from the original agreement providing that the amount of child support "may not at any time be decreased" was omitted in the new provision, and Ross understood that the meaning of "may" in the clause governing the cost-of-living increase did not change.

Ross paid Craw the child support, together with cost-of-living increases, from 1977 until September 1980. In June 1980, however, according to his testimony, he told her he would have to stop paying the increases because of his financial situation. He testified that at this time, as he had on one previous occasion, he told her payment of the increase was discretionary, not mandatory. From September 1980 he paid support at the base rate of $450 established by the addendum. Ross testified without contradiction that a judgment in the sum of $1,000,000 had been filed against him, and that the Internal Revenue Service had recorded a tax lien against him in the amount of $100,000.

Cox's testimony confirmed Ross's account of the negotiations. Because Ross was unable to afford the $800 monthly obligation imposed by the original agreement, the parties negotiated a reduction as reflected in the addendum. Cox said the language of the original draft, "may," was discussed and was repeated in the addendum provision, with "the intent that it was to be discretionary but not mandatory."

Craw testified that she and Ross discussed and agreed upon inclusion of the Consumer Price Index provision before the original...