Rutledge v. Rutledge

• Decision Date: 01 February 2005
• Docket Number: Record No. 0777-04-4.
• Citation: 608 S.E.2d 504,45 Va. App. 56
• Court: Virginia Court of Appeals
• Parties: Kathleen D. RUTLEDGE v. Ronald L. RUTLEDGE.

608 S.E.2d 504

45 Va. App. 56

Kathleen D. RUTLEDGE v. Ronald L. RUTLEDGE.

Record No. 0777-04-4.

Court of Appeals of Virginia, Alexandria.

February 1, 2005.

Jennifer E. Mandell (Richard L. Downey; Richard L. Downey & Associates, Fairfax, on briefs), for appellant.

Michael Kevin Murphy (Law Offices of Michael Kevin Murphy & Associates, on brief), for appellee.

Present: BENTON, BUMGARDNER and KELSEY, JJ.

BENTON, Judge.

Kathleen D. Rutledge contends the trial judge erred in ruling that her marital property settlement agreement prohibited the trial judge from exercising discretionary authority to award attorney's fees to her in a post divorce proceeding to modify spousal support. We hold that because the agreement expressly provides for attorney's fees in some instances but does not do so for modification proceedings, the trial judge did not err.

I.

Kathleen D. Rutledge and Ronald L. Rutledge were divorced by a final decree entered on July 15, 1999. The final decree "affirmed, ratified, and incorporated" the parties' property settlement agreement. Pertinent to this appeal, the property settlement agreement provides that "[t]he husband shall pay to the wife the sum of $1,300.00 per month for her maintenance and support" and also provides for modification of the spousal support as follows:

Upon the petition of either party upon a material change of circumstances in a manner which is consistent with . . . Code Section 20-107.1 . . ., a Court of competent jurisdiction shall be able to modify by increasing or decreasing or terminating or reserving the right to spousal support as the circumstances may make proper.

Four years after entry of the final decree, the wife filed a petition in the circuit court to increase spousal support, alleging a material change in circumstances and requesting an award of attorney's fees. The husband denied that a material change in circumstances had occurred, denied the wife was entitled to any relief, and requested dismissal of the petition. Following an evidentiary hearing, the trial judge found that a material change in circumstances had occurred, and he increased spousal support to $2,000 per month. The trial judge also found that an award of attorney's fees "does not contravene any provision of the agreement" and awarded the wife her attorney's fees.

The husband filed a motion to reconsider the award of attorney's fees. In his motion, the husband asserted that the following provisions of the agreement contain the only basis for an award of attorney's fees:

11. Divorce & Associated Matters, Legal Fees:

* * * * * *

C. The husband shall pay to the wife the sum of $3,000 as and for the expenditure of attorney's fees necessitated by her as a result of filing of the Bill of Complaint for Divorce. Said payment shall be made to her within ninety (90) days of the execution of this Agreement.

12. Breach of this Agreement, and Enforcement:

* * * * * *

B. In the event of a breach of this Agreement, the party committing the breach shall be obligated to pay the reasonable and necessary costs, including reasonable legal fees incurred by the non-breaching party to enforce or protect the non-breaching party's interests or rights hereunder. The amount of such reasonable costs and legal fees shall be submitted to the Court having jurisdiction over the parties and subject matter hereof, and if the party alleging breach substantially prevails in such an action then both parties will move the court that the order disposing of any such allegation of breach include a provision making an award of reasonable and necessary costs and legal fees in the favor of the substantially prevailing party, without prejudice to the non-prevailing party to contest the reasonableness or necessity of any such cost and legal fee.

The husband argued that Code § 20-109(C) restricts the trial judge's authority to award attorney's fees to the terms of the agreement.

The wife responded that the trial judge had inherent authority, pursuant to Code § 20-109(A), to award attorney's fees in spousal support modification proceedings. She also argued that, in any event, paragraphs 11(C) and 12(B) are silent regarding the issue of attorney's fees in modification proceedings and, therefore, the "right to seek fees in this case has not been waived or limited by the terms of their agreement."

The trial judge granted the motion to reconsider. In pertinent part, he ruled as follows:

The parties specifically address the issue of attorney's fees in their [agreement]. Section 11(C) . . . provides that the husband will pay the wife $3000 as and for the expenditure of attorney's fees necessitated by her as a result of the filing of the Bill of Complaint for Divorce. Also, Section 12(A) and 12(B) [provide] for an award of attorney's fees in the event of a breach of the parties' PSA.¹

Here, the parties' [agreement] expressly provides for an award of attorney's fees in certain situations, but does not provide for an award of attorney's fees incurred as a result of either party petitioning for a modification of spousal support. Pursuant to . . . Code . . . § 20-109(C), the Court cannot go beyond the terms of the parties' [agreement]. The [agreement] fails to provide for an award of attorney's fees for a parties' modification of spousal support, and the Court is without power to make such an award.

The wife appeals from the order denying her request for attorney's fees.

II.

The parties agree that the resolution of this case turns upon the application of Code § 20-109. The portions of the statute pertinent to this appeal are as follows:

A. Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance . . . as the circumstances may make proper. . . . The provisions of this subsection shall apply to all orders and decrees for spousal support, regardless of the date of the suit for initial setting of support, the date of entry of any such order or decree, or the date of any petition for modification of support.

* * * * * *

C. In suits for divorce, . . . if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract. If such a stipulation or contract is filed after entry of a final decree and if any party so moves, the court shall modify its decree to conform to such stipulation or contract.

Code § 20-109.

The wife contends the limiting language in Code § 20-109(C) — "no decree . . . directing the payment of . . . counsel fee . . . shall be entered except in accordance with that . . . contract" — should be read to mean that the trial judge is authorized to grant her attorney's fees unless the agreement forbids it. Thus, she argues that because the agreement "did not address the issue of an award of attorney's fees incurred by either party as an incident to a post-divorce proceeding for modification of spousal support . . ., Code § 20-109(C) did not restrict the trial court's power to award such attorney's fees."

We disagree. Subsection A and C of the statute are interrelated. In analyzing these subsections, we have held that, although "Code § 20-109(A) empowers trial courts to modify a spousal support award, . . . Code § 20-109(C) expressly limits the court's authority . . . according to the terms of a stipulation or contract signed by the parties." Blackburn v. Michael, 30 Va.App. 95, 100, 515 S.E.2d 780, 783 (1999). Likewise, the Supreme Court has held that, when the parties' agreement has been affirmed, ratified, and incorporated into the final decree of divorce, "`[Code] § 20-109 restricts the court's jurisdiction over awarding "alimony, suit money, or counsel fee" to the terms of the contract.'" Thomas v. Thomas, 216 Va. 741, 743, 222 S.E.2d 557, 559 (1976) (quoting McLoughlin v. McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970)). As these cases hold, the statutory language of Code § 20-109(C) restricts the judge to decreeing according "to the terms" of the agreement. In the context of this statute, which provides that "no decree or order directing the payment of . . . counsel fee . . . shall be entered except in accordance with that contract," the words, "except in accordance with that . . . contract," are not ambiguous. The plain meaning of these words is not susceptible to another understanding. See, e.g., In re Coane's Estate, 310 Pa. 138, 165 A. 2, 4 (1933) (reviewing a will in which a testator directed payments to his wife "`in accordance with the terms of the antinuptial agreement,'" the court observed that "`[i]n accordance with' cannot be construed to mean `in place of,' or `as a substitute for,' and this is made especially clear by the fact that the payments provided for are to be `in accordance with the terms' of the antinuptial agreement, not with some of them, but with all of them").

Although our decisions and the decisions of the Supreme Court have not always used consistent language in applying Code § 20-109, we have never intimated that subsection C permits a trial judge to grant relief in derogation of the terms of the parties' agreement. For example, in White v. White, 257 Va. 139, 509 S.E.2d 323 (1999), where the final decree of divorce incorporated a settlement agreement that obligated the husband to pay the monthly mortgage payments on a residence to a bank, the trial judge ruled that the husband was in contempt for failing to make the mortgage payments to the wife after she sold the residence several years following the divorce and after the bank received from the sale proceeds the balance due on the mortgage. Id. at 142-43, 509 S.E.2d at 324. Reversing that decision, the Supreme...