Weidlein v. Weidlein
| Decision Date | 06 October 2015 |
| Docket Number | Record No. 2145–14–4. |
| Citation | 65 Va.App. 260,777 S.E.2d 222 |
| Parties | Peter WEIDLEIN v. Mimi C. WEIDLEIN. |
| Court | Virginia Court of Appeals |
James Ray Cottrell (John K. Cottrell ; Cottrell Fletcher Schinstock Bartol & Cottrell, on briefs), Alexandria, for appellant.
David N. Webster II, Alexandria (The Webster Law Firm, on brief), for appellee.
Present: BEALES, McCULLOUGH and O'BRIEN, JJ.
This appeal arises from a post-divorce rule to show cause brought by Mimi C. Weidlein against her former husband, Peter Weidlein, for his failure to pay spousal support arrearages in excess of $400,000. Husband first assigns error to the trial court's entry of judgment against him “for arrearages for the time period after the trial court had found that the former wife had met the terminating condition for her spousal support entitlement under the terms of the marital agreement.” His second assignment of error contends that “alternatively, the trial court erred in determining that the parties' valid oral agreement was not enforceable as a defense to the rule to show cause and to any arrearage claim.” For the reasons noted below, we reverse the judgment of the trial court.
On January 2, 1990, the parties signed a document titled “Marital Agreement.” The relevant portions of the agreement are as follows:
The parties separated with the intent to terminate the marriage on April 16, 1993. On September 22, 1994, the trial court entered a stipulation and settlement order which incorporated the marital agreement, pursuant to Code § 20–109.1. The court entered a final decree of divorce on May 5, 1995, which also incorporated the terms of the marital agreement. The entirety of paragraph (B) was copied, verbatim, into the divorce decree itself.
On April 17, 2014, wife filed a petition for a rule to show cause for husband's alleged failure to pay spousal support. On July 22, 2014, husband filed a motion to terminate past and future spousal support due to wife's cohabitation with a man, which, if true, would terminate husband's spousal support obligation.
At a hearing held on July 3, 2014, husband testified that he learned in 2002 that wife was cohabiting with Gilbert Moreno. He directed his attorney to draft a cover letter and order concerning the termination of spousal support and arranged for the letter to be given to wife. Husband testified that wife acknowledged the cohabitation, and agreed that in exchange for six months of spousal support, she would not object to his termination of spousal support. Husband testified that although the parties had an oral agreement, they did not sign the document or appear in court because they did not want to incur the costs of litigation. Accordingly, he made his final support payment in March, 2003.
Wife denied that she ever cohabited with Moreno for more than a week although each of the children testified that wife and Moreno did cohabit for more than a week on at least one occasion. She said she never received any letter or draft order from husband concerning termination of spousal support. She also denied making an oral agreement in which she agreed to termination of her spousal support in exchange for six more months of support. The parties' two sons, however, testified that wife had in fact cohabited with Moreno for a period in excess of one week and that she did so more than once.
The court made a specific finding of fact that wife's testimony was not credible and resolved the issue of the existence of an oral agreement in favor of husband. The court also found that wife resided with Moreno under circumstances which would warrant termination of husband's spousal support obligation.
The court held, however, that the cohabitation provision of the decree was not self-executing and therefore, the spousal support obligation could not be modified without a court order. The court also held that the oral agreement between the parties for six additional months of support and subsequent termination of support was unenforceable because it was an oral agreement to modify, and the terms of the parties' marital agreement required any amendment to be in writing. Therefore, the court ordered husband to pay the arrearage in the amount of $437,050.60 and granted husband's motion to terminate any future support obligation.
“On appeal, the trial court's findings of fact are accorded great deference and its judgment will not be set aside unless plainly wrong or without evidence to support it.” Stroud v. Stroud, 54 Va.App. 231, 236, 677 S.E.2d 629, 631 (2009). The trial court's application of law to those facts is reviewed de novo. Tuttle v. Webb, 284 Va. 319, 324, 731 S.E.2d 909, 911 (2012).
Husband contends the trial court erred in awarding wife support arrearages, which accrued after June 2003,1 because the court found that husband proved the occurrence of a terminating condition for wife's spousal support entitlement under the terms of the marital agreement. He argues that the trial court erred in finding that the cohabitation provision of the agreement was not self-executing and that husband was required to obtain a court order before terminating spousal support payments.
In Reid v. Reid, 245 Va. 409, 414, 429 S.E.2d 208, 211 (1993), the Supreme Court held that “Code § 20–109 provides that the divorce court may modify or terminate spousal support that ‘may thereafter accrue,’ but makes no provision for modifying an award for support previously accrued.” Moreover, the Court in Reid noted that there was no statutory authority to order restitution of past support. Id. at 415, 429 S.E.2d at 211. Finally, we have held in a number of cases that “the moment each installment falls due and unpaid it becomes a vested property right and is immune from modification.” Bennett v. Commonwealth, Dep't of Soc. Servs., 15 Va.App. 135, 144, 422 S.E.2d 458, 463 (1992). However, neither this Court nor the Supreme Court has addressed whether parties to a divorce can, by agreement, modify the default rules for accrual and vesting of monthly support.
Another statute, Code § 20–109(C), provides that once parties to divorce litigation have reached an agreement on (among other things) spousal support, the trial court must honor the agreement. “Support agreements that are voluntarily made by the parties are subject to the same rules of construction applicable to contracts generally.” Goldin v. Goldin, 34 Va.App. 95, 107, 538 S.E.2d 326, 332 (2000). Where, as here, an agreement's terms are unambiguous, a court must “adhere to the plain meaning of [the] stated terms.” Southerland v. Estate of Southerland, 249 Va. 584, 588, 457 S.E.2d 375, 378 (1995).
The meaning of the agreement, as relevant here, is plain. First, husband was to pay $2,500 in monthly support. Second, “[u]pon the happening” of certain contingencies, including wife cohabiting with another man for a week or more, “such payments shall forever cease.” Consequently, husband's obligations ceased when wife cohabited with another man for one week or more.
The default rule, which specifies that monthly spousal support payments accrue and become vested when they are due and unpaid, operates only in the absence of a statute that modifies this default rule. See Richardson v. Moore, 217 Va. 422, 424, 229 S.E.2d 864, 866 (1976) (per curiam) (). Here, there is a statute, Code § 20–109(C), which provides that the agreement of the parties controls. When there is no agreement, the order of the court mandating monthly payments controls until modified by the court. Where there is such an agreement, it must be enforced according to its plain terms.2 The specific provisions of Code § 20–109(C) control over the general provisions of Code § 20–109(A). “The rule is that ‘when one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails.’ ” Thomas v. Commonwealth, 244 Va. 1, 22–23, 419 S.E.2d 606, 618 (1992) (quoting Virginia Nat'l Bank v. Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979) ).3 When a trial court honors the parties' agreement, as it must, such a judgment does not retroactively modify a support award, in contravention of Code § 20–112. Instead, it enforces a pre-existing award according to its plain terms. The...
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Boone v. Boone, Record No. 0578-17-4
...622 S.E.2d 771, 773 (2005) (en banc) (noting that a party can concede a fact). 3. The husband relies on Weidlein v. Weidlein, 65 Va. App. 260, 266, 777 S.E.2d 222, 224-25 (2015), for this argument. That opinion was vacated. Weidlein v. Weidlein, 65 Va. App. 604, 779 S.E.2d 247 (2015) (en ba......