Stacy v. Stacy, Record No. 0863-07-3 (Va. App. 4/22/2008)

• Decision Date: 22 April 2008
• Docket Number: Record No. 0863-07-3.
• Citation: Stacy v. Stacy, Record No. 0863-07-3 (Va. App. 4/22/2008), Record No. 0863-07-3. (Va. App. Apr 22, 2008)
• Parties: DEBORAH ANN STACY v. WILLIAM LESLIE STACY.
• Court: Virginia Court of Appeals

Page 1

Unpublished Opinion

DEBORAH ANN STACY v. WILLIAM LESLIE STACY.

Record No. 0863-07-3.

Court of Appeals of Virginia, Salem.

April 22, 2008.

Appeal from the Circuit Court of Buchanan County, Keary R. Williams, Judge.

Robert J. Breimann (Street Law Firm, on briefs), for appellant.

Gerald L. Gray (Gerald Gray Law Firm, on brief), for appellee.

Present: Judges McClanahan, Petty and Beales.

MEMORANDUM OPINION^*

JUDGE WILLIAM G. PETTY.

Deborah Ann Stacy (wife) appeals a final order of the trial court that terminated the obligation of William Leslie Stacy (husband) to make mortgage payments pursuant to a property settlement agreement.

On appeal, she presents the following questions: (1) whether the trial court had the authority to amend or alter the parties' property settlement agreement (the "agreement") after it had been incorporated into the final decree of divorce; (2) whether the trial court erred in construing the mortgage payments by husband to be alimony or spousal support subject to termination under Code § 20-109¹; and (3) whether the trial court erred in failing to award wife an interest in husband's pension after "amending" the parties' agreement.

For reasons set forth below, we affirm.

I. BACKGROUND

In January 2001, the trial court entered a final decree of divorce that ratified, confirmed, approved, and incorporated by reference the parties' agreement.² The agreement gave wife the marital residence, and Paragraph 4 of the agreement, entitled "Debts," obligated husband to continue paying the mortgage payments. According to Paragraph 8 of the agreement, entitled "Spousal Support," the parties waived "any present or future right to receive any support or maintenance from the other."

Despite the parties' purported waiver of spousal support, Paragraph 9 of the agreement was entitled "Payments in the Nature of Support." It reads as follows:

Notwithstanding the provision set forth in Paragraph 8, above, the [h]usband agrees that all of the payments that he is assuming by virtue of this Agreement are being made to benefit the [w]ife, and are, therefore, payments being made "in the nature of support" on the [w]ife's behalf. Although they are not direct support payments being made to the [w]ife, the parties acknowledge and agree that they are, nevertheless, of the type and nature of payment which would be deemed to be non-dischargeable by the [h]usband in any [b]ankruptcy proceeding, because of their direct benefit to the [w]ife. Should the [h]usband ever attempt to discharge these obligations in such a way as would result in them being imposed upon the [w]ife, not only does he agree that he shall continue to be liable for them to the creditor, but he also acknowledges that the Court may directly impose any such discharged obligations upon him as support, whether spousal or child, regardless of any prior waivers, and even if to do so exceeds any presumptive amounts established by the legislature, to the [w]ife directly, and also that he will be responsible for the [w]ife's attorney['s] fees and [c]ourt costs related to any proceeding which may arise relative to the matters contained in these proceedings.

In August 2001, wife began living with a man to whom she was not married. Wife admits that they have cohabited since that time and continue to cohabit in a relationship analogous to marriage. On January 5, 2006, husband filed a petition to terminate his obligation to make monthly mortgage payments pursuant to Code § 20-109(A). On February 20, 2007, the trial court issued a letter opinion granting husband's petition to terminate payment of the mortgage obligation pursuant to Code § 20-109(A).³ It is from this decision that wife appeals.

II. ANALYSIS

A. Termination of Payments

In its letter opinion, the trial court stated that "neither party argue[d] that the PSA [was] ambiguous. Finding the PSA is unambiguous the Court has construed the PSA accordingly." Thereafter, the trial court accepted husband's interpretation of the agreement. On appeal, wife asserts that the trial court erred when it accepted husband's argument and terminated husband's duty to make the mortgage payments because it "'re-wrote' the parties' agreement so as to construe a mortgage obligation payable by [husband], and recharacterized that note obligation as one of spousal support or spousal maintenance."

On appeal, both parties still maintain that the agreement is unambiguous. Husband argues that despite the waiver of spousal support in Paragraph 8, the language in Paragraph 9 supersedes that waiver. Therefore, he contends, because all payments by husband are "in the nature of support" they are subject to termination under Code § 20-109(A). Wife, however, claims that the language contained in the agreement supports her position that the parties mutually waived all rights to receive support from one another. Wife asserts that the trial court's acceptance of husband's argument was unreasonable and that the plain meaning of the agreement is only susceptible to the interpretation that supports her argument and, of necessity, excludes the interpretation argued by husband and accepted by the trial court.

The legal principles governing this case are well established. 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, our Supreme Court has held that, when the parties' agreement has been affirmed, ratified, and incorporated into the final divorce decree, "'[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." Rutledge v. Rutledge, 45 Va. App. 56, 61-62, 608 S.E.2d 504, 507 (2005) (internal quotation marks and citations omitted).

However, in cases involving cohabitation, remarriage, or death, the stipulation or agreement must expressly preclude termination of the contractual duty of spousal support on these grounds. Newman v. Newman, 42 Va. App. 557, 570, 593 S.E.2d 533, 540 (2004). If the agreement fails to expressly preclude termination, the contractual obligation may be terminated. See Hardesty v. Hardesty, 40 Va. App. 663, 581 S.E.2d 213 (2003) (en banc).

In determining the nature of the payments at issue we are mindful that marital property settlement agreements are "contracts subject to the same rules of formation, validity, and interpretation as other contracts." Bergman v. Bergman, 25 Va. App. 204, 211, 487 S.E.2d 264, 267 (1997) (citing Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986)). "When the terms of a disputed provision are clear and definite, it is axiomatic that they are to be applied according to their ordinary meaning." Smith, 3 Va. App. at 514, 351 S.E.2d at 595 (citations omitted). "Where there is no ambiguity in the terms of a contract, we must construe it as written, and we are not at liberty to search for the meaning of the provisions beyond the pertinent instrument itself." Id. at 514, 314 S.E.2d at 596 (citations omitted).⁴

However, whether a writing is ambiguous is a matter of law, not fact, and subject to our de novo review. Bergman, 25 Va. App. at 211, 487 S.E.2d at 267 (citing Langman v. Alumni Ass'n of the Univ. of Virginia, 247 Va. 491, 498, 442 S.E.2d. 669, 674 (1994)). An agreement is ambiguous when it is objectively reasonable to understand the language in the contract "in more than one way" or to decide that it "refers to two or more things at once." Pocahontas Mining L.L.C. v. Jewell Ridge Coal Corp., 263 Va. 169, 173, 556 S.E.2d 769, 771 (2002). We should not conclude that a contract is ambiguous "simply because the parties to the contract disagree about the meaning of its language." Id. Rather, the task of the reviewing court is "to determine. . . whether both [of the competing interpretations], though contradictory, are nonetheless reasonable." Vilseck v. Vilseck, 45 Va. App. 581, 589, 612 S.E.2d 746, 749-50 (2005).

Finally, on appeal, "[t]he trial court's judgment is presumed to be correct, and the burden is on the appellant to present us a sufficient record from which we can determine whether the lower court has erred." Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848, 852 (1992) (citations and internal quotation marks omitted).

We find wife's argument that the agreement can only be read in the manner she proposes to be unpersuasive. Our review of the language of the agreement leads us to conclude that the agreement may reasonably be read to support either the interpretation proposed by wife or that proposed by husband. Paragraph 9 is ambiguous and internally inconsistent with the remainder of the agreement. The husband's obligation to continue making mortgage payments, imposed under a section of the agreement entitled "Debt," would normally be construed as the equitable distribution of the marital property, not spousal support. See Code § 20-107.3(E); cf. Oweny v. Oweny, 8 Va. App. 255, 260, 379 S.E.2d 745, 748 (1989) (reversing when the trial court, relying on extrinsic evidence of the parties' intent, characterized mortgage payments as spousal support in a manner "plainly inconsistent with the contract"). However, Paragraph 9 states that "[n]otwithstanding . . . Paragraph 8," the payments are "in the nature of support on behalf of the wife." While Paragraph 9 also contains language discussing how these payments should be construed in the event of a bankruptcy filing by the husband, it does not expressly limit its application to that contingency. T...