Stroud v. Stroud

• Decision Date: 27 February 2007
• Docket Number: Record No. 3158-05-4.
• Citation: 641 S.E.2d 142,49 Va. App. 359
• Parties: Joseph Anthony STROUD v. Debra Lyn STROUD.
• Court: Virginia Court of Appeals

641 S.E.2d 142

49 Va. App. 359

Joseph Anthony STROUD v. Debra Lyn STROUD.

Record No. 3158-05-4.

Court of Appeals of Virginia, Alexandria.

February 27, 2007.

James Ray Cottrell (David H. Fletcher; John K. Cottrell; Gannon & Cottrell, on briefs), Alexandria, for appellant.

Richard J. Colten (James A. Watson, II; Mollie C. Barton; Colten Cummins Watson & Vincent, on brief), Fairfax, for appellee.

Present: BENTON and HALEY, JJ., and FITZPATRICK, Senior Judge.

JAMES W. HALEY, JR., Judge.

I.

The primary issues here for resolution are (1) whether the evidence compels the conclusion that the terms of a property settlement agreement ("PSA") terminating spousal support upon "cohabitation with any person ... in a situation analogous to marriage" have been met, and (2) if so, whether such a clause involving a relationship among persons of the same sex is operative as a matter of law in Virginia.

Joseph Anthony Stroud ("husband") maintains that the trial court: (1) erred in finding that husband had not established cohabitation by the preponderance of the evidence, and (2) erred in finding as a matter of law in Virginia that individuals of the same sex cannot cohabitate in a situation analogous to marriage. We agree and reverse on these issues.

Debra Lyn Stroud ("wife") has assigned as error the trial court decision (1) to permit the introduction of evidence concerning the parties' negotiations before execution of the PSA, and (2) to deny her request for attorney's fees. We affirm on these issues.

II. PAROL EVIDENCE RULE

The parties were divorced by decree entered April 7, 1999. That decree ratified, affirmed, and incorporated a PSA dated March 22, 1999. The PSA required husband to pay wife $4,000 per month spousal support. The PSA continued: "[T]he aforesaid payments shall end upon the death of either party, the remarriage of Wife and/or her cohabitation with any person to whom she is not related by blood or marriage in a situation analogous to marriage for a period of thirty (30) or more continuous days...." (Emphasis added). Husband alleges the "person" here involved, who triggered the spousal support termination clause, was a female we identify as "Robyn."

In opening statements, wife's attorney noted that the issues in controversy included her "cohabitation with any person" and Virginia law concerning same-sex relationships. At trial, husband offered a pre-execution draft of the PSA, and testimony concerning the same. The trial court admitted both, concluding the PSA was ambiguous and such evidence, concerning "negotiations for a settlement," was admissible to discern the parties' intent in the use of the word "person" in the PSA. Wife has assigned this ruling as cross-error, maintaining the admission of the evidence violated the parol evidence rule. We disagree.

"Property settlement agreements are contracts and are subject to the same rules of construction that apply to the interpretation of contracts generally." Southerland v. Estate of Southerland, 249 Va. 584, 588, 457 S.E.2d 375, 378 (1995); see also Plunkett v. Plunkett, 271 Va. 162, 166, 624 S.E.2d 39, 41 (2006); Boedeker v. Larson, 44 Va.App. 508, 518, 605 S.E.2d 764, 769 (2004).

In Vilseck v. Vilseck, 45 Va.App. 581, 612 S.E.2d 746 (2005), we noted that, "[a]n agreement should be deemed `ambiguous if it may be understood in more than one way,'" so long as both meanings are "objectively reasonable." Id. at 588-89 612 S.E.2d at 749 (quoting Video Zone, Inc. v. KF & F Props., 267 Va. 621, 625, 594 S.E.2d 921, 923 (2004)).

Furthermore, "whether contract language is ambiguous is [a question] of law, not fact." Plunkett, 271 Va. at 166-67, 624 S.E.2d at 41. Thus, we review the trial court's decision on a finding of ambiguity de novo.

In this case, a foundational issue was whether the parties intended, by the use of the word "person" in the context of the PSA, only individuals of different sexes, or individuals of both sexes. We hold the word "person" can be understood in either way by an objectively reasonable standard and, accordingly, that word is ambiguous as it is used in the PSA.

"When the language of a contract is ambiguous, parol evidence is admissible, not to contradict or vary contract terms, but to establish the real contract between the parties . . . [and] to determine the intention of the parties." Tuomala v. Regent Univ., 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996) (citations omitted) (emphasis added). The "[u]ltimate resolution of the question whether there has been a binding settlement [agreement] involves a determination of the parties' intention[s], as objectively manifested." Snyder-Falkinham v. Stockburger, 249 Va. 376, 381, 457 S.E.2d 36, 39 (1995); see also Shoup v. Shoup, 31 Va.App. 621, 625-26, 525 S.E.2d 61, 63-64 (2000).

Thus, "[t]he facts and circumstances surrounding the parties when they made the contract, and the purposes for which it was made, may be taken into consideration as an aid to the interpretation of the words used...." Seaboard Air Line R.R. Co. v. Richmond-Petersburg Tpk. Auth., 202 Va. 1029, 1033, 121 S.E.2d 499, 503 (1961), cited with approval in VEPCO v. Northern Va. Regional Park Auth., 270 Va. 309, 319, 618 S.E.2d 323, 328 (2005). Those facts and circumstances include the "preliminary negotiations between the parties and the meaning of the language used...." Bolling v. Hawthorne Coal & Coke Co., 197 Va. 554, 570, 90 S.E.2d 159, 170 (1955). Thus, parol evidence was admissible to determine the intentions of the parties, and the meaning of the contextually ambiguous word "person," in the PSA.

Subsequent to the trial court's ruling on admissibility, husband testified that drafts of a proposed PSA "had already bounced back and forth several times [before] we finalized it on March 16th ... and it was signed on March 22nd." Introduced into evidence was a draft PSA in which the support termination clause read "cohabitation with a male in a situation analogous to marriage...." (Emphasis added). Husband testified, "I remember scratching that out and putting in `person,' and submitting that to my attorney, who submitted it to [wife's attorney's] office."

Likewise, relevant to interpreting the word "person" in the PSA is evidence offered by wife. On direct examination by her counsel, wife testified as follows:

Q. You testified a moment ago that you don't live with [Robyn] in a relationship analogous to a marriage. Are there reasons for that?

A. Yeah. The most important reason is the fact that I signed an agreement with [husband] in 1999 that said that I would not cohabit with anyone in a situation analogous to marriage for 30 consecutive days, and I was very aware of that and I kept track.

(Emphasis added).

It is long established¹ that "`[w]hen the terms of an agreement are ... uncertain, the interpretation placed thereon by the parties themselves is entitled to great weight and will be followed....'" Dart Drug Corp. v. Nicholakos, 221 Va. 989, 995, 277 S.E.2d 155, 158 (1981) (quoting O'Quinn v. Looney, 194 Va. 548, 552, 74 S.E.2d 157, 159 (1953)); Am. Realty Trust v. Chase Manhattan Bank, N.A., 222 Va. 392, 403, 281 S.E.2d 825, 831 (1981). See also Smith v. Smith, 3 Va.App. 510, 518, 351 S.E.2d 593, 598 (1986).

This uncontested evidence of the negotiations of the parties before execution of the PSA, the various drafts of the PSA, and the interpretation of the word "person" by each of the parties subsequent to its execution, makes clear that each understood at the time of execution of the PSA the word "person" in the spousal support termination provision was to include individuals of both sexes.

III. FACTS

The evidence considered by the trial court with respect to cohabitation was essentially undisputed. That evidence included wife's written response to husband's request for admissions, a transcript of wife's deposition, a Christmas letter written by Robyn, and a stipulation of facts entered into by the parties concerning the observations of private detectives. Relevant to this opinion are also the facts that wife owned a home, and Robyn owned a home on a different street.

Responding to husband's request, wife admitted the following: (1) Robyn stayed overnight in her house "an average of 5 nights per week for a period in excess of one year"; (2) Robyn "sleeps in the same bed" with her; (3) Robyn keeps clothes in wife's bedroom closet and toiletries in wife's bedroom's bathroom; (4) she engages "in consensual sexual acts" with Robyn; (5) she and Robyn have exchanged rings; (6) she and Robyn have been on vacation trips together to Europe and places in this country, and "share accommodations" on those trips; (7) Robyn washes dishes and laundry at wife's home, possesses a key to and drives wife's car, and attends church with wife; (8) she loaned Robyn $8,000 or $9,000 without written evidence of the debt or a repayment schedule; (9) Robyn is listed as the emergency contact on applicable forms for wife, and for wife's three daughters; and (10) Robyn tells these children she loves them and purchases gifts for them.

Relevant to the above admissions is a Christmas letter, dated December 29, 2004, that Robyn sent to friends and family members. In that letter Robyn relates in detail present activities and future plans concerning the three children. She writes,

[T]he rewards of watching three teenagers grow and mature are endless.

On a personal note, [wife] and I are doing well. Each day presents a new parenting challenge but together we can and have both the joy and the frustrations of raising three girls.... [Wife] is still working in the office ... and comes home every day with a new story.... When she is not working, she is busily putting food on the table, doing laundry, and making sure the pantry is stocked. We could not live without her.

I am the most spoiled of us all! Many of you always said that I was born with a silver spoon in my mouth.... I like to think that I know a good thing when I find...