Susan K. Smith v. William S. Smith ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
SUSAN K. SMITH
MEMORANDUM OPINION * BY
v. Record No. 0488-98-2 JUDGE DONALD W. LEMONS
MARCH 30, 1999
WILLIAM S. SMITH
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Mary-Leslie Duty (Duty, Duty & Gay, on
brief), for appellant.
Deanna D. Cook (Bremner, Janus & Cook, on
brief), for appellee.
Susan K. Smith appeals the trial court's dismissal of her
motion for an increase in spousal support. The trial court held
that the provisions of Code § 20-109 and the terms of the
parties' separation agreement precluded the court from modifying
spousal support. Although we hold that the parties' separation
agreement was ambiguous as to whether the court could modify the
amount of spousal support, we affirm the decision of the trial
court.
I. BACKGROUND
Susan K. Smith (wife) and William Scott Smith (husband)
were married on June 21, 1975. The parties separated on
November 26, 1989. On May 2, 1991, both parties entered into a
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
property settlement agreement which resolved all issues of
spousal support, equitable distribution, child custody and
support. On June 13, 1991, the final decree of divorce
affirmed, ratified and incorporated by reference the property
settlement agreement. All matters regarding the support and
custody of the children were remanded to the Chesterfield
Juvenile and Domestic Relations District Court ("J & DR court").
On July 3, 1996, the husband filed a petition in the J & DR
court seeking to have his child support payments reduced, based
upon the eldest child graduating from high school and having
reached the age of eighteen. The wife filed a motion in the
circuit court to remand the issue of spousal support to the
J & DR court, which was done by court order. The wife filed a
response to the husband's request to decrease child support and
filed a separate motion to increase spousal support. The
husband objected to the court hearing the wife's motion, arguing
that the court lacked jurisdiction to increase the amount of
spousal support based upon the parties' property settlement
agreement of May 2, 1991 and Code § 20-109.1.
On November 1, 1996, a hearing was held in the J & DR
court. By order entered on December 10, 1996, the J & DR court
found that Code § 20-109.1 and the parties' written property
settlement agreement precluded the court's jurisdiction to
modify spousal support. The wife appealed the order of the
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J & DR court to the circuit court and on March 13, 1997, a
hearing was held by the circuit court on the issue of whether
the court had jurisdiction to increase spousal support. By
letter dated May 19, 1997, and order entered February 9, 1998,
the circuit court denied the wife's petition to increase spousal
support, stating that the court lacked jurisdiction to modify
spousal support.
II. JURISDICTION TO MODIFY SPOUSAL SUPPORT
Pursuant to Code § 20-109, a trial court may modify the
existing terms of spousal support and maintenance upon the
petition of either party. However, "where the parties contract
or stipulate to the amount of spousal support and that agreement
is filed without objection prior to the entry of the final
divorce decree, no decree or order directing the payment of
support and maintenance for the spouse . . . shall be entered
except in accordance with that stipulation or contract."
Pendleton v. Pendleton, 22 Va. App. 503, 506, 471 S.E.2d 783,
789 (1996) (citations omitted); see Code § 20-109(C). Section
20-109(C) "inhibits the power of the court to award or consider
modification of the decree to the extent that spousal support
and maintenance are provided for in the incorporated agreement
of the parties." White v. White, 257 Va. 139, 144, 509 S.E.2d
323, 325 (1999) (citations omitted).
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The property settlement agreement signed by the parties on
May 2, 1991 contained the following pertinent provisions in
paragraph sixteen,
[b]eginning August 1, 1991, the Husband
shall pay to the Wife the sum of Five
Hundred dollars ($500.00) per month as
spousal support. Spousal support payment
[sic] shall be due and payable on the first
day of each month and continue thereafter
until further Court Order or remarriage of
the Wife.
It is understood that these provisions
for the payment of child support and spousal
support are based upon an income of the
Husband being $100,000.00. Should Wife
remarry or for any reason not be entitled to
spousal support, the child support payments
would automatically increase by the same
amount ($500.00) and continue until further
Court Order.
Paragraph eighteen of the agreement contained the following
waiver provision,
[t]he Wife acknowledges that the
foregoing provisions for her, together with
her anticipated income from other sources
will provide for her support and maintenance
and that the foregoing, considering all of
the Wife's circumstances, is fair, adequate
and satisfactory to her and is in the
keeping [sic] with her accustomed standard
of living and her reasonable requirements,
giving consideration to her own ability to
provide for her own support.
THE WIFE, THEREFORE, WAIVES ANY AND ALL
CLAIM TO SUPPORT AND MAINTENANCE FOR HERSELF
OTHER THAN THOSE TERMS AND CONDITIONS
HEREIN, AND HEREBY RELEASES AND DISCHARGES
ABSOLUTELY AND FOREVER FOR THE REST OF HER
LIFE, FROM ANY AND ALL CLAIMS AND DEMANDS,
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PAST, PRESENT OR FUTURE, FOR SUPPORT,
MAINTENANCE OR LUMP SUM SETTLEMENT.
The final decree of divorce order entered on June 13, 1991
contained the following provisions,
And it appearing to the Court that the
parties to this cause have entered into an
Agreement and Stipulation in accordance with
Virginia Code Section 20-109 and 20-109.1,
Code of Virginia, 1950, as amended, it is
ADJUDGED, ORDERED and DECREED that said
Agreement and Stipulation be, and the same
is hereby affirmed, ratified, and
incorporated by the Court, and that the
parties fully comply with the terms of same,
and that a copy thereof is on file with the
papers in this cause.
* * * * * * *
It is hereby ORDERED that the defendant
shall pay to the plaintiff the sum of Five
Hundred Dollars ($500.00) per month as
spousal support. Said spousal support shall
be due and payable on the first day of each
month and shall continue thereafter until
further Court Order or remarriage of the
plaintiff.
* * * * * * *
It is further ORDERED that, pursuant to
Section 20.79(c) of the Code of Virginia,
1950, as amended, all matters pertaining to
the care, custody, visitation and support of
the minor children of this marriage are
transferred to the appropriate Juvenile and
Domestic Relations District Court, having
jurisdiction, for the enforcement of the
decrees of this Court, or for the
modification or revision thereof as the
circumstances may require.
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At the trial court, the parties agreed to orally argue the
issue of the court's jurisdiction to modify the amount of
spousal support, considering only the property settlement
agreement and the final decree of divorce and not considering
any other evidence. Both parties argued that the terms of the
property settlement agreement were clear and unambiguous.
However, each party asserted that the language "until further
Court Order" contained in the agreement supported a meaning
contrary to the meaning asserted by the other party.
On appeal, the wife argues that the trial court erred in
finding that it did not have jurisdiction to modify the spousal
support order. She states that Code § 20-109 grants the court
authority to "increase, decrease or terminate the amount or
duration of any spousal support and maintenance . . . whether
previously or hereafter awarded, as the circumstances may make
proper." She maintains that the language in the property
settlement agreement and the divorce decree "until further Court
Order" was a clear and proper reservation of the right of either
party to request a modification of both the amount and the
duration of spousal support award. The wife asserts further
that the agreement was based upon the husband's then-current
income of $100,000 per year and that the parties intended to
make the support award modifiable upon a change in his income.
In addition, the wife suggests that if the court does find that
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the agreement is ambiguous, it must consider extrinsic evidence
to determine the intentions of the parties.
Conversely, the husband argues on appeal that the court's
jurisdiction is limited to the modification of the duration of
spousal support and that the amount of support is non-modifiable
based upon the terms of the property settlement agreement. The
husband contends that the language "until further Court Order or
remarriage of the Wife" allows the court to terminate support,
but not modify the amount. The husband argues that the
agreement contains no explicit language reserving authority for
the court to increase or decrease the amount of spousal support
and that the court may not modify an award in the absence of
such a provision. The husband argues further that paragraph
eighteen of the agreement constitutes a waiver of any right of
either party to seek any type of support from the other party in
the future. The husband maintains that the court must read
paragraph eighteen, the waiver provision, in conjunction with
paragraph sixteen which sets the dollar amount of support, or
the waiver will be rendered meaningless.
The husband also contends that the wife may not argue for
the first time on appeal that the agreement is ambiguous and
that the case should be remanded to the trial court for
consideration of parol evidence. The husband asserts that if
the wife believed that the introduction of parol evidence was
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necessary to determine the intent of the parties, she should not
have agreed to submit the issue of the trial court's
jurisdiction to modify the amount of spousal support without the
benefit of a full evidentiary hearing.
An appellate court is not bound by the conclusions of the
trial court with respect to the construction of the terms of a
property settlement agreement. See Bergman v. Bergman, 25 Va.
App. 204, 211-12, 487 S.E.2d 264, 267-68 (1997) (citations
omitted). "[I]f all the evidence which is necessary to construe
a contract was presented to the trial court and is before the
reviewing court, the meaning and effect of the contract is a
question of law which can be readily ascertained by this court."
Id. at 212, 487 S.E.2d at 268 (citation omitted).
At the hearing held in the circuit court, the parties
agreed to argue orally whether the court had jurisdiction to
modify the amount of spousal support without introducing
extrinsic evidence of the parties' intentions. Based upon the
arguments made by counsel, the court determined that it did not
have jurisdiction to modify the spousal support award.
On the face of the document, it is unclear whether the
agreement of the parties preserves continuing jurisdiction over
modification of the amount of spousal support or the duration of
spousal support or both. If the only language in question was
the meaning of the phrase "and continue thereafter until further
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court Order," we would find that the court had jurisdiction to
modify the amount of spousal support. See Losyk v. Losyk, 212
Va. 220, 183 S.E.2d 135 (1971); Duke v. Duke, 239 Va. 501, 391
S.E.2d 77 (1990). But in the same numbered paragraph of the
agreement the parties state that if spousal support terminates,
the sum certain of $500 would be added to child support. This
additional provision of the agreement provides further support
for husband's argument that the amount was never to vary and
consequently could not be subject to modification by the court.
We find the language of the agreement to be ambiguous on
the question of spousal support modification; however, neither
party submitted parol evidence to the trial court. "The Court
of Appeals will not consider an argument on appeal which was not
presented to the trial court." Ohree v. Commonwealth, 26 Va.
App. 299, 308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18.
Neither party argued to the trial court that the agreement was
ambiguous, and the court had no parol evidence before it;
consequently, we have no evidence in the record sufficient to
resolve the ambiguity. Even if we invoked the good cause or
ends of justice exceptions to Rule 5A:18, we have an
insufficient record to consider the issue. See Smith v.
Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993).
In this case, the wife bears the burden of demonstrating
that the trial judge's ruling was plainly wrong or without
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evidence to support it. Although we find the language of the
agreement to be ambiguous, remand for the wife to have a "second
bite at the apple" is inappropriate. Having chosen to submit
the issue to the trial court with each party insisting that the
language is unambiguous, the wife places limitations upon the
trial court and the appellate court. With these limitations,
the wife fails in her burden on appeal. Accordingly, the
decision of the trial court is affirmed.
III. ATTORNEY'S FEES
On appeal, the husband argues that he is entitled to
attorney's fees and costs incurred in defending the instant
appeal, and requests that we remand the case to the trial court
for its calculation of attorney's fees incurred by him in this
case.
The rationale for the appellate court being
the proper forum to determine the propriety
of an award of attorney's fees for efforts
expended on appeal is clear. The appellate
court has the opportunity to view the record
in its entirety and determine whether the
appeal is frivolous or whether other reasons
exist for requiring additional payment.
O'Loughlin v. O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98,
100 (1996).
Although we find the agreement to be ambiguous on the issue
presented, we do not believe that the wife's assertion that it
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was ambiguous was frivolous. The husband's request for
attorney's fees is denied.
Affirmed.
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