Spagnolo v. Spagnolo, 2172-94-2

• Citation: 20 Va.App. 736,460 S.E.2d 616
• Decision Date: 29 August 1995
• Docket Number: No. 2172-94-2,2172-94-2
• Parties: Joseph A. SPAGNOLO, Jr. v. Susan D'Aluisio SPAGNOLO (Murphy). Record
• Court: Virginia Court of Appeals

Page 616

460 S.E.2d 616

20 Va.App. 736

Joseph A. SPAGNOLO, Jr. v. Susan D'Aluisio SPAGNOLO (Murphy).

Record No. 2172-94-2.

Court of Appeals of Virginia Richmond.

Aug. 29, 1995.

Dana L. Gay, Chesterfield (Duty, Duty & Gay, on brief), for appellant.

Shirley L. Hennessy, Chesterfield (Scott D. Landry; Shirley L. Hennessy & Associates, P.C., on brief), for appellee.

Present: BENTON and ELDER, JJ., and COLE, Senior Judge.

BENTON, Judge.

Joseph A. Spagnolo appeals from a final order accompanying the decree of divorce from his wife, Susan D'Aluisio Spagnolo Murphy. He contends that the trial judge erred in (1) affirming, ratifying, and incorporating by reference the property settlement agreement into the final order; (2) ordering him to pay child support consistent with the statutory guidelines and inconsistent with the terms of the agreement; (3) finding that he had an outstanding contractual obligation for spousal support in the amount of $16,800; and (4) awarding attorney's fees to his wife. We affirm the order in part, reverse in part, and remand for reconsideration.

I.

Following mediation and prior to the filing of the divorce suit, the parties entered into a property settlement agreement on January 20, 1993. The agreement, which was drafted by an independent mediator and was to be reviewed by the parties with their attorneys, sought to resolve all issues concerning property rights, spousal support, and support for a minor child. The agreement required the husband to make the following child support payments: (1) $200 per month until the earliest occurrence of three months after the child's graduation from high school or the child's nineteenth birthday; (2) one-half of the first $300 of any extraordinary expenses and seventy-five percent of extraordinary expenses that exceeded $300; (3) all the costs of health insurance for the child until the child reached age nineteen or graduated from college, whichever occurred later; and (4) tuition, room, board, books and other college expenses at a state supported college, reserving to the father the right to require the child to earn a reasonable portion of his college expenses. The agreement also contained the following clause regarding child support:

RATIONALE FOR CHILD SUPPORT FIGURE

Husband and Wife agree that Husband's child support payment shall be $200 a month rather than the amount set forth in the child support guidelines because Husband has agreed to assume full responsibility for [the child's] college expenses and has agreed to pay for health insurance for [the child] until [the child] graduates from college.

The child was sixteen years of age when these divorce proceedings commenced.

Further sections of the agreement provided that (1) the husband would pay $2,800 per month spousal support; (2) each party would pay his or her own attorney's fees, except that a defaulting party would be liable to pay reasonable expenses incurred by the other to enforce the agreement; (3) the agreement could not be modified by the parties, except by written instrument executed in the same manner as the agreement; and (4) the parties would request the judge "to affirm, ratify and incorporate by reference but not merge the provisions of this agreement and any qualified modification into any final decree of divorce."

The wife filed a bill of complaint for divorce on January 20, 1994, in which she requested that the agreement be affirmed, ratified, and incorporated into the final decree of divorce. The husband objected. The trial judge entered a decree of divorce on June 8, 1994, and reserved for later consideration matters of spousal support, child custody and support, equitable distribution, attorney's fees, and incorporation of the agreement. After hearing evidence ore tenus, the trial judge affirmed, ratified, and incorporated by reference the agreement into the final decree of divorce. The trial judge also determined, however, that "circumstances would justify application of the presumptive statutory guidelines" and ordered the husband to pay, contrary to the agreement, child support in the amount of $973.93 per month, which included a credit for health insurance paid by husband on the child's behalf. The trial judge also awarded the wife $16,800 in accrued spousal support and $1,000 in attorney's fees.

II.

"The language of Code § 20-109.1 gives the trial [judge] discretion in determining whether a property settlement agreement should be [affirmed, ratified, and] incorporated by reference into a final decree of divorce." Forrest v. Forrest, 3 Va.App. 236, 239, 349 S.E.2d 157, 159 (1986). Ordinarily, absent an abuse of discretion, the trial judge's decision will be upheld on appeal. Id. However, we have stated that "[w]here parties to a pending case enter into a definite, certain and unambiguous ... settlement agreement, in the absence of good cause not to do so, the [trial judge] should [affirm, ratify, and] incorporate [by reference] the agreement in the judgment of the court and thereby terminate the litigation." Richardson v. Richardson, 10 Va.App. 391, 399, 392 S.E.2d 688, 692 (1990). In addition, Code § 20-109 provides that "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."

During the divorce proceedings, the wife requested the trial judge to affirm, ratify, and incorporate by reference the agreement into the divorce decree. The trial judge asked: "Is it [the wife's] position that, if this agreement is found to be enforceable, she is wanting, also, a departure from the child support guidelines and to have [the husband] responsible for the college education of the parties' minor son?" The wife's counsel responded affirmatively.

At the conclusion of the evidence, the trial judge entered a final decree which recited "that the Agreement entered into between the parties dated January 20, 1993 is a valid enforceable contract, it is therefore ADJUDGED, ORDERED AND DECREED that the terms and provisions of the Agreement between the parties are hereby affirmed, ratified and incorporated herein as fully and as amply as if set forth herein verbatim." Despite the language in the final decree incorporating all of the provisions of the agreement, the trial judge ordered in the final decree, contrary to the agreement, that the father pay an increased amount of monthly child support as follows:

After consideration of all the factors under Sections 20-108.1 and 20-108.2 of the Code of Virginia, 1950, as amended, the court does hereby find that circumstances ... would justify application of the presumptive guidelines set forth in Section 20-108.2 of the Code of Virginia, 1950, as amended.... Accordingly, it is hereby ORDERED that the defendant shall pay to the plaintiff the sum of NINE HUNDRED SEVENTY-THREE DOLLARS AND 93/100 ($973.93) per month for the support and maintenance of [the child], commencing on July 5, 1994 and payable on the fifth day of each month thereafter until said child shall reach the age of eighteen or, if the said child is still in high school at the time of reaching his eighteenth birthday, said support shall be payable until he shall reach the age of nineteen or graduate from high school, whichever shall first occur. It is further ORDERED that the defendant shall continue to maintain the minor child as a beneficiary on his health and dental insurance coverage through his employment.

We hold that the trial judge erred by affirming, ratifying, and incorporating in the final decree the child support provision of the agreement, which included the husband's obligation to pay college expenses and insurance for the child after the child's minority, when the trial judge at the same time also increased the monthly amount that the husband was required to pay as child support. The agreement that the parties negotiated and executed expressly provided that the monthly amount of the child support was determined and fixed in consideration for the husband's agreement to pay the child's future college expenses and health insurance benefits beyond the child's minority. Those support payments and obligations were mutually dependent and the balance struck between those arrangements was integral to the agreement that the parties reached regarding the child's support.

The trial judge gave no reason for failing to give effect to the part of the agreement that contained the rationale for the reduced child support. Thus, the trial judge's decision, without explanation, effectively ordered the husband to abide by the portions of the agreement that the judge could not have otherwise ordered, i.e., to pay for the child's college expenses and post-minority health insurance. It is beyond dispute that the husband's agreement to pay post-minority benefits for the child could not have been lawfully ordered by the trial judge, except by enforcement of the parties' own validly negotiated agreement. See Code § 20-107.2. See also Eaton v. Eaton, 215 Va. 824, 827, 213 S.E.2d 789, 792 (1975); Fry v. Schwarting, 4 Va.App. 173, 180, 355 S.E.2d 342, 346 (1987). When the trial judge severed the child support provision as if it was one of a series of separate and independent parts of the agreement, he both violated the parties' express agreement and adopted a remedy that exceeded the statutory limitation on his power. See Code § 20-107.2.

We have held that a trial judge is not required to accept or adopt an agreement made by parents regarding child support if the amount of child support is in dispute. Alexander v. Alexander, 12 Va.App. 691, 695, 406 S.E.2d 666, 668 (1991). Implicitly, we recognized...