White v. White

• Decision Date: 11 March 1997
• Docket Number: No. 0030-96-3,0030-96-3
• Citation: 24 Va.App. 297,482 S.E.2d 78
• Parties: Russell A. WHITE v. Drema C. WHITE. Record
• Court: Virginia Court of Appeals

Page 78

482 S.E.2d 78

24 Va.App. 297

Russell A. WHITE v. Drema C. WHITE.

Record No. 0030-96-3.

Court of Appeals of Virginia.

March 11, 1997.

Rehearing En Banc Granted April 29, 1997.

Garland S. Spangler, Pearisburg, for appellant.

Max Jenkins (Jenkins & Jenkins, on brief), Radford, for appellee.

Present: BAKER, COLEMAN and ELDER, JJ.

BAKER, Judge.

Russell A. White (husband) appeals from an order entered on November 27, 1995 by the Circuit Court of Montgomery County (trial court) that held him in contempt for failing to comply with the provisions of a July 15, 1991 divorce decree. Husband contends that the trial court erred (1) in construing the terms of a "property settlement agreement" it had incorporated into the divorce decree and (2) in finding him guilty of contempt for failing to comply with that decree.

On May 31, 1991, Drema C. White (wife) filed a bill of complaint requesting a divorce and alleged that husband "agreed, in writing, to give [her] the sum of Thirty Thousand Dollars ($30,000.00), payable in 120 monthly installments...." The bill was personally served on husband. He failed to file a response or deny the allegations.

Husband was personally served with notice that depositions would be taken to be read as evidence in support of wife's bill. Husband did not appear at the deposition hearing and offered no evidence in support of his position.

On May 1, 1991, husband executed the following document:

I, RUSSELL A. WHITE DO HEREBY PROMISE TO PAY THE $30,000.00 (THIRTY THOUSAND DOLLARS) MORTGAGE FOR THE HOUSE AND PROPERTY LOCATED AT 265, ASH DRIVE, CHRISTIANSBURG, VIRGINIA 24073. SAID PAYMENTS TO BE MADE TO FIRST VIRGINIA BANK ON A REGULAR MONTHLY BASIS FOR 120 (ONE HUNDRED TWENTY) MONTHS. I RESERVE THE RIGHT TO PAY OFF THE MORTGAGE EARLY WITHOUT PENALTY. I PROMISE TO PAY PRINCIPLE [sic] AND ACCRUED INTEREST ONLY. I WILL NOT PAY ESCROW FOR TAXES, INSURANCE, NOR ANY OTHER PURPOSE. IF ALLOWABLE BY CURRENT TAX CODES, I RESERVE THE RIGHT TO CLAIM MORTGAGE INTEREST AS MY EXPENSE FOR INCOME TAX PURPOSES. THIS PROMISE TO PAY THE MORTGAGE IN NO WAY CONSTITUTES LIABILITY FOR SAID PROPERTY. IN THE EVENT OF MY DEATH, THIS PROMISE IS NULL AND VOID--IT DOES NOT PASS TO MY HEIRS NOR TO MY ESTATE.

SIGNED: s/RUSSELL A. WHITE

DATE: 5-1-91

This 1st day of May, 1991

Amy O. Hall

Notary Public

Commission expires Jan. 2, 1994

The above document was not signed by wife.

The depositions filed with the Court disclose the following evidence given by wife:

Q. Now I believe that your husband entered into an agreement on May 1, 1991, wherein he agreed to pay you the sum of $30,000.00, payable in 120 monthly installments, that being 119 installments of $431.72 beginning on June 23, 1991, and a final installment of $432.23 on May 23, 2001, is that correct?

A. Yes, that is correct.

Q. And that was filed with your bill of complaint and marked Exhibit "A"?

A. Yes.

Q. Are you requesting that this agreement be incorporated by reference into a final decree of divorce?

A. Yes, I am.

On July 15, 1991, after reviewing the depositions and the aforementioned document, the trial court entered a decree of divorce which provided that "the [husband] entered into an agreement dated May 1, 1991, with respect to maintenance and support ... that [husband] has not objected thereto." The decree further provided that

it is further ADJUDGED, ORDERED and DECREED that the Court doth ratify, confirm, approve and incorporate into this decree by reference thereto the Agreement made by the defendant dated May 1, 1991.

(Emphasis added).

The record discloses no objection to the trial court's construction of the evidence as a promise to pay "maintenance and support." Husband did not appeal from the trial court's findings included in the divorce decree. In fact, husband made no objection before the divorce decree became final and the time to appeal expired.

On November 17, 1994, wife sold the property described in Exhibit "A." Until that date, husband made the monthly payments as promised but thereafter ceased making further payments to wife. Husband asserted that any sum he owed was paid off as a part of the property sale. On February 2, 1995, wife moved for a show cause order to require husband to demonstrate why he should not be held in contempt of the July 15, 1991 divorce decree for failure to make payments due her as ordered by that decree.

After the show cause hearing, the trial court held as follows:

UPON CONSIDERATION of the facts and issues, the Court holds that by Final Decree entered on July 15, 1991, an agreement was made and ratified in a Decree dated May 1, 1991 which Decree stated that [husband] entered into an agreement dated May 1, 1991, with respect to maintenance and support.

By [sic] July 15, 1991, the Court construed the agreement as an obligation of Spousal Support.

The Court on July 15, 1991 having made this determination, must now decide in light of the current dispute between the parties, the characterization of said support obligation. From the evidence presented herein, the Court finds as follows:

1. The agreement previously ratified and confirmed constitutes a lump sum award to [wife] be [sic] a certain sum of $30,000.00 payable in installments, and it is hereby,

* * * * * * *

ADJUDGED, ORDERED and DECREED, that this matter is taken under advisement for a period of one year from June 1, 1995 to allow [husband] to purge himself of said Contempt, provided he commence monthly payments to [wife] ... beginning June 1, 1995.

(Emphasis added).

In this appeal, husband asserts that the agreement did not provide for the maintenance and support of wife as stated in the divorce decree, and that it was a "contract" only to pay a debt of wife. In support of his argument, husband cites Owney v. Owney, 8 Va.App. 255, 379 S.E.2d 745 (1989).

In Owney, in return for promises made by the wife, the husband agreed to assume responsibility for the monthly payments of an outstanding loan described in a property settlement agreement. The trial court issued a decree which declared this monthly responsibility to be spousal support. The husband timely perfected an appeal from that declaration. This Court reversed and remanded the case, holding (1) that the trial court had failed to incorporate the agreement into the decree, thereby depriving itself of the power to enforce the agreement, and (2) that the trial court's finding that the husband's obligation was "spousal support" contravened the "plain language of the agreement," in violation of Code § 20-109.

Husband fails to acknowledge the critical differences between his case and Owney. In Owney, the aggrieved party properly preserved the substantive issue of whether his agreed payment was spousal support by filing a notice of appeal within thirty days of the decree. Here, husband failed to timely note an appeal from the trial court's findings made in the July 15, 1991 divorce decree. His complaint concerning the findings made in the divorce decree was first asserted four and one-half years after the divorce decree became final. In the contempt proceeding, for the first time, he argued that in the 1991 decree, the trial court erred by construing his promise to pay as "maintenance and support."

Rule 5A:6 and Code § 8.01-675.3 bar our consideration of husband's contention that the trial court's finding of spousal support contravenes the plain language of the agreement. Because husband did not file a timely appeal from the trial court's finding that the agreement included an obligation to pay spousal support, that finding is conclusive and husband cannot collaterally attack it four and one-half years later in a contempt proceeding. See Rook v. Rook, 233 Va. 92, 94-95, 353 S.E.2d 756, 757-58 (1987) (husband could not challenge a finding of contempt by arguing that property settlement agreement incorporated into final decree of divorce was void; absent an appeal, the time to challenge the decree was within twenty-one days of its entry); see also Hall v. Hall, 9 Va.App. 426, 388 S.E.2d 669 (1990).

Assuming that Exhibit "A" is a property settlement agreement or contract governed by Code § 20-109, as husband argues, the dissent's discussion of contracts and the interpretation thereof fails to recognize the law applicable to this appeal. The trial court reviewed the evidence, concluded that wife was entitled to "maintenance and support," and established that the amount was $30,000, payable as described. The trial court's initial interpretation of the evidence presented in the divorce hearing may have been erroneous, but husband's remedy was to appeal and he failed to do so. Consequently, we are bound by the trial court's findings. We do not here rewrite a contract; we simply follow the rules established by the Supreme Court and the statutes enacted by the legislature.

At his option, husband must either (1) continue such payments, including their interest component, until the remaining balance is paid in full or (2) pay off the entire balance in a lump sum, thereby terminating the accrual of interest.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

COLEMAN, Judge, dissenting.

The majority concludes, in effect, that the provision in the July 15, 1991 final divorce decree which "ratif[ied], confirm[ed], approve[d], and incorporate[d] ... the Agreement made by the defendant dated May 1, 1991 ... with respect to maintenance and support" is res judicata on the issue of whether the agreement and decree incorporating it "constitutes a lump sum award to [wife] ... [of] a certain sum of $30,000.00 payable in installments." Thus, the majority holds that the defendant is barred from challenging on appeal the trial court's finding, which was essential to the contempt citation, that the agreement and decree constituted a $30,000 lump sum award husband was required to pay to the wife in 120 installments. I respectfully disagree with the majority.

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