Whitney v. Whitney, Record No. 2192-06-2 (Va. App. 5/15/2007)
| Decision Date | 15 May 2007 |
| Docket Number | Record No. 2192-06-2. |
| Court | Virginia Court of Appeals |
| Parties | BABETTE C. WHITNEY v. CHRISTOPHER J.R. WHITNEY. |
Appeal from the Circuit Court of Hanover County, John Richard Alderman, Judge.
Donald K. Butler (ButlerCook, L.L.P., on briefs), for appellant.
Terrence R. Batzli (Tracy H. Spencer; Batzli Wood & Stiles, PC, on brief), for appellee.
Present: Chief Judge Felton, Judges Benton and Petty.
This matter arises from an action to enforce the parties' separation agreement. Babette Whitney contends the trial judge erred in refusing to award her judgment interest on unpaid expenses and in refusing to order reimbursement for certain other expenses. Christopher Whitney contends the trial judge erred by refusing to grant him credit against his financial obligation to his wife for mortgage payments he made pursuant to a pendente lite order. We reverse the trial judge's rulings limiting judgment interest and payment of accounting fees, and we affirm the judge's denial of the wife's request for reimbursement for other expenses and denial of the husband's request for credit for his mortgage payments.
The parties married December 29, 1971 and separated February 14, 1997. Six months before their separation, they entered into an "Agreement and Stipulation" to determine matters "both now and in the future, concerning custody, visitation, support, spousal support, equitable distribution and attorney's fees and costs." Section 4 of the Agreement, which contained several handwritten interlineations, provides, in part, as follows:
(a) Husband agrees that he will pay child support under the guidelines then in effect in the Commonwealth of Virginia.
(b) Husband further agrees that he will maintain hospitalization insurance for Wife and children and will pay all medical, dental and psychological expenses not covered by said insurance.
(c) Husband agrees that he will pay all school and college tuition, book fees and living expenses for the children.
(d) In the event the parties separate, . . . Husband shall pay to Wife spousal support & child support in an amount to be no less than Thirty Five Hundred Dollars per month beginning the month that the parties separate.
* * * * * * *
(f) Husband & Wife agree that in the event of failure of the reconciliation and separation of the parties he will pay all attorneys' fees and costs incurred as a result of the separation and subsequent divorce.
During the divorce litigation, the trial judge entered a pendente lite order, requiring the husband to pay child and spousal support and to make mortgage payments on the marital home. On December 16, 1998, the trial judge entered a decree granting the parties a divorce, ordering spousal support, child support and custody, and remanding to a commissioner in chancery issues concerning interpretation of the Agreement.
Following an evidentiary hearing, the commissioner in chancery ruled the Agreement was unambiguous, found the wife incurred legal fees in the amount of $62,390.36 and accounting expenses in the amount of $30,258.90, and the commissioner ruled those fees and expenses were reasonable. In his report, which was filed April 17, 2000, the commissioner ordered the husband to pay both amounts within thirty days of the filing of the report. On August 22, 2000, the trial judge entered two orders: one confirmed the commissioner's report and also affirmed, ratified and incorporated by reference the Agreement into the final decree; the other "ordered that the amount of attorney's fees . . . is fixed as of June 30, 2000 in the amount of $67,640.36."
The husband appealed to this Court from the trial judge's order confirming the commissioner's report and affirming the Agreement. In an unpublished opinion, Whitney v. Whitney, Record No. 2267-00-2 (Va. Ct. App. Oct. 2, 2001), we affirmed the judgment order, and we held the record supported the trial judge's order confirming the commissioner's report and incorporating the Agreement into the divorce decree.
Several months after we issued the opinion, the wife filed in the trial court a motion to enforce the prior orders. She alleged the husband had failed to pay expenses in compliance with the terms of the Agreement, failed to pay attorney's fees and costs, and failed to reimburse her for other expenses. Prior to the evidentiary hearing, the trial judge ordered the husband to pay to the wife within forty-five days the attorney's fees and accounting fees assessed by the commissioner on April 17, 2000 and confirmed by the trial judge's August 22, 2000 orders.
At the evidentiary hearing, both parties presented witnesses and exhibits on the issues of the wife's fees, costs, and expenses. The trial judge ruled the husband and the wife were equally responsible for the fees of the accountant who documented the wife's expenses at the evidentiary hearing; the husband was to reimburse the wife $1,276 for the unpaid balance owed for attorney's fees under the August 22, 2000 order; the husband was responsible to reimburse the wife for various other specified expenses; the husband was not responsible for tutoring expenses incurred for the benefit of a child at the Sylvan Learning Center; and the husband was not responsible for expenses incurred by the wife for "health food supplements, vitamins, or over-the-counter additives." The judge's order also denied the husband's request for credit for mortgage payments required of him by the pendente lite order and denied the wife's request for "interest on attorney's fees, medical expenses, educational expenses, and health insurance expenses." The order further provided that "interest on the sums [ordered to be paid] herein shall accrue at the judgment rate, as provided for in Virginia Code Section 6.1-330.54, commencing ninety (90) days from the date of this order, unless sooner paid."
The wife contends the trial judge erred in (1) ruling she was not entitled to interest on unpaid accounting fees and attorney's fees assessed by the orders entered in 2000; (2) failing to award her judgment interest on unpaid medical expenses, health expenses, school expenses, and other expenses in the nature of child and spousal support; (3) refusing to award reimbursement for expenses incurred by their child at the Sylvan Learning Center; (4) failing to order the husband reimburse her for certain "health care expenses"; and (5) failing to require the husband pay all the accounting expenses she incurred in connection with the hearing.
The trial judge specifically denied the wife's motion for interest on the attorney's fees and expert's fees awarded in 2000. Citing Code § 8.01-382, wife argues that the two August 22, 2000 orders, granting fees for her expert and attorney, entitled her to receive interest at the judgment rate from the date of entry through the date of payment. Husband contends the orders do not constitute money judgments. He argues the order does not permit interest because the trial judge declared only that the fee amount was "fixed" and struck the "judgment language" from the order. He further argues that Code § 20-107.3(D), which provides that monetary awards "shall constitute a judgment," implies attorney fee awards entered in divorce proceedings are not judgments.
By statute, "a decree or order requiring the payment of money, shall have the effect of a judgment for such . . . money, and be embraced by the word 'judgment.'" Code § 8.01-426; see e.g. Bennett v. Commonwealth, 15 Va. App. 135, 141, 422 S.E.2d 458, 462 (1992) (). Another statute expressly mandates that if a judgment "does not provide for interest, the judgment or decree awarded . . . shall bear interest at the judgment rate of interest as provided for in [Code] § 6.1-330.54 from the date of entry." Code § 8.01-382.
The orders entered by the trial judge on August 22, 2000 required the husband to pay expenses pursuant to the parties' Agreement. One order confirmed the commissioner's report, which required the husband to pay for the accounting fees "the sum of $30,258.90 within thirty (30) days of the date of the filing of this Report" and to "pay all attorney's fees . . . within thirty (30) days of the date of the filing of this Report." The other order was styled "Order for Judgment" and "[o]rdered that the amount of attorney's fees . . . is fixed as of June 30, 2000 in the amount of $67,640.36." Although the trial judge deleted the words "judgment is hereby entered" from the body of the latter order and inserted "the amount of attorney's fees . . . is fixed," the combined effect of the orders required the payment of expert's fees and attorney's fees. Simply put, the orders required the payment of money assessed against the husband as an obligation under the Agreement; they constitute, therefore, enforceable money judgments. See American Standard Homes Corp. v. Reinecke, 245 Va. 113, 124, 425 S.E.2d 515, 520 (1993) ().
The accrual of post-judgment interest is mandatory. Dairyland Insurance Co. v. Douthat, 248 Va. 627, 631-32, 449 S.E.2d 799, 801 (1994). The Supreme Court held in Dairyland that "postjudgment interest is not an element of damages, but is a statutory award for delay in the payment of money actually due." 248 Va. at 632, 449 S.E.2d at 801. We hold, therefore, that the trial judge erred in ruling the wife was not entitled to post-judgment interest on the judgments for fees awarded to the wife by the orders entered in 2000.
The trial judge limited the interest due on other expenses owed to the...
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