Richard Kenneth Wheeler v. Faye Pond Wheeler ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
RICHARD KENNETH WHEELER
MEMORANDUM OPINION * BY
v. Record No. 0820-97-2 JUDGE MARVIN F. COLE
MARCH 24, 1998
FAYE POND WHEELER
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Richard P. Kruegler (Durrette, Irvin &
Bradshaw, on briefs), for appellant.
William F. Etherington (Beale, Balfour,
Davidson & Etherington, P.C., on brief), for
appellee.
Richard Kenneth Wheeler (husband) appeals the decision of
the circuit court ordering him to continue to pay Faye Pond
Wheeler (wife) monthly spousal support of $2,000. Husband
contends that the trial court erred in: (1) deciding issues
previously ruled upon by the circuit court and this Court; (2)
interpreting the parties' written and oral agreements; (3)
holding that wife was entitled to monthly spousal support of
$2,000 from February 1988 until the parties negotiated otherwise;
and (4) awarding husband only a portion of his attorney's fees.
We find that the trial court did not rule on previously decided
issues. We also find that the trial court erred in concluding
that the parties' 1988 oral agreement that husband would pay wife
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
$2,000 per month in spousal support modified their written
agreement. We further find that, under the parties' written
agreement, spousal support payments ceased when husband reached
age sixty and no longer received his draw from his former law
firm, subject to renegotiation. We affirm the court's award of
attorney's fees to husband.
Background
Husband and wife were divorced in 1984. The final decree
incorporated the parties' property settlement agreement. In
pertinent part, the agreement provided as follows:
3. PERIODIC SPOUSAL SUPPORT
Husband shall pay to Wife annually
$42,000.00 per year so long as they shall
both live and she shall remain unmarried, by
paying $3,500.00 on the first day of each
month commencing with the month of February,
1984. However, Husband shall pay initially
to Wife $3,225.00 as periodic support.
If Husband's draw, which is now
$9,000.00 per month is increased, he shall
pay to Wife 25% of such increase . . . .
If there is a reduction in Husband's
draw, not due to his voluntary act, choice or
decision, the periodic spousal support shall
be proportionately reduced . . . .
Upon Husband attaining the age of Sixty
(60) years and retiring from his professional
practice or employment, if spousal support
has not been terminated earlier by force of
the other provisions of this Agreement, the
parties will negotiate in good faith, based
upon the circumstances and conditions at the
time, to fix the amount of spousal support
the Wife is entitled to, if any.
Husband paid wife monthly spousal support pursuant to the
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agreement until January 1988, when his monthly draw from his law
firm was reduced from $10,417 to $4,000. Husband agreed to pay
spousal support of $2,000 a month, although he contended that he
was required to pay approximately $700 per month pursuant to the
formula set out in their written agreement. By petition filed in
1992, wife sought to recover a support arrearage. In December
1992, the trial court ruled in its opinion letter that wife was
estopped from seeking an arrearage. The court also ruled that
the term "draw" used by the parties in their agreement referred
only to husband's draw from his employment with Hunton & Williams
and did not refer to all income he earned as an attorney. The
trial court also awarded husband his attorney's fees and costs.
After the court issued its letter ruling in December 1992,
husband reduced his monthly spousal support payments to $700
pursuant to his interpretation of the formula set out in the
parties' agreement. The final order was entered in March 1993.
Wife appealed the circuit court's March 1993 order, which
was affirmed by this Court. See Wheeler v. Wheeler, Record No.
0722-93-2 (Va. Ct. App. July 5, 1994). Neither party appealed
this Court's decision. No appellate attorney's fees were awarded
to husband.
Following remand, husband filed a motion seeking attorney's
fees and costs. In a December 1994 hearing, the trial court
indicated orally that it would not rule on the wife's allegation
of spousal support arrearage because wife had not properly
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presented the matter to the court. In January 1995, wife filed a
petition seeking an arrearage of $1,300 because of husband's
unilateral reduction of support payments to $700 per month in
January 1993. The matter was heard by a different trial judge
because the first trial judge had died in the interim. Based
upon oral argument, the record, and transcripts of the previous
hearings, the judge found that husband was obligated to pay wife
$2,000 in monthly spousal support from the time of the oral
modification in February 1988 until the amount was renegotiated;
that there was insufficient evidence that wife agreed to forego
litigation in exchange for a greater spousal support payment; and
that husband was entitled to attorney's fees and costs incurred
only through March 1993. Husband appeals.
Previously Decided Issues
As noted above, this matter was previously before the Court
of Appeals on wife's appeal of the circuit court's March 15, 1993
order. Neither party appealed this Court's decision affirming
the circuit court's order. Under the doctrine of the law of the
case, the parties are barred from relitigating matters
necessarily decided in the prior appeal or which could have been
appealed at that time but which were not. "'Where there have
been two appeals in the same case, between the same parties and
the facts are the same, nothing decided on the first appeal can
be re-examined on a second appeal.'" Kaufman v. Kaufman, 12 Va.
App. 1200, 1208, 409 S.E.2d 1, 6 (1991) (quoting Steinman v.
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Clinchfield Coal Corp., 121 Va. 611, 620-21, 93 S.E. 684, 687
(1917)).
As such, in accordance with the findings set out in our
previous opinion, the parties are bound by our previous
determination that "draw," as used in their written agreement,
meant husband's monthly income from his former law firm of Hunton
& Williams, and did not mean husband's overall salary from the
practice of law. We also determined that wife was equitably
estopped from recovering any alleged arrearage resulting from the
reduction of support to $2,000 per month in 1988.
Husband contends that the parties' written agreement, as
modified by their oral agreement, rested on an agreement to
forego litigation, that wife breached that agreement in May 1992
when she filed her petition seeking a support arrearage, and that
the trial court so ruled in its March 15, 1993 order when it
denied wife's petition to rehear. Nowhere in the record is there
evidence to support husband's assertion that the trial judge
ruled that wife's action to enforce the terms of the agreement
breached an agreement to forego litigation. Although wife's
agreement to forego litigation may explain husband's willingness
to pay more than the support amount required under the parties'
written agreement, the record does not demonstrate that the trial
judge ruled in March 1993 that the parties agreed to forego
litigation.
Moreover, no order but the one from which husband now
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appeals addressed husband's January 1993 reduction of spousal
support to $700 per month. "A court of record speaks only
through its written orders," Hill v. Hill, 227 Va. 569, 578, 318
S.E.2d 292, 297 (1984), and remarks made from the bench which are
not subsequently reduced to a written order have no effect.
Nevertheless, we note the following exchange between husband's
counsel and the former trial judge in the December 6, 1994
hearing:
[COUNSEL]: On the issue of arrearages, are
you finding that it's the law of the case
that none exists.
THE COURT: At the present time?
[COUNSEL]: Yes.
THE COURT: No, sir. I don't think he
brought a suit properly for that ruling, and
I'm not going to rule.
While the parties adjudicated the amount of spousal support
due prior to May 1992 when wife was found to be equitably
estopped from seeking an arrearage as of that date, the court did
not decide whether the parties' agreement was breached by either
wife's petition seeking an arrearage or husband's unilateral
reduction in support to $700 per month. Therefore, husband has
not demonstrated that the trial court erred by ruling on matters
previously decided.
Spousal Support Required under Parties' Agreement
In our earlier decision, we determined that the parties'
agreement defined their rights and obligations. However, we were
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not called upon to interpret the parties' written agreement
beyond the definition of "draw." In this appeal, however, the
question is how the parties' oral agreement affected the other
provisions concerning spousal support under their written
agreement.
"Property settlement and support agreements are subject to
the same rules of construction and interpretation applicable to
contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180,
355 S.E.2d 342, 346 (1987). "On appeal if 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 readily be
ascertained by this court." Id. "Since the interpretation of a
contract is a question of law, we are not bound by the trial
court's conclusions on this issue, and we are permitted the same
opportunity as the trial court to consider the contract
language." Garcia Enterprises, Inc. v. Enterprise Ford Tractor,
Inc., 253 Va. 104, 107, 480 S.E.2d 497, 498-99 (1997). Parties
may modify a written contract by parole agreement. See Warren v.
Goodrich Strip & Screen Co., 133 Va. 366, 388-89, 112 S.E. 687,
693-94 (1922).
The matter before us presents two questions: first, whether
husband was barred from unilaterally reducing spousal support to
$700 per month in January 1993, which was the level contemplated
by the written terms of the agreement; and, second, whether he
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was required to pay $2,000 per month in spousal support after he
reached age sixty in July 1994 and no longer received his draw
from his former law firm.
We find that husband was not barred from reducing his
monthly spousal support payment to $700 according to the terms of
the agreement. In her brief and at oral argument, wife admitted
that she "acquiesced" in husband's proposal to pay her $2,000 per
month. Indeed, her testimony in the record clearly established
that she did. Mere acquiescence in accepting a lesser amount
does not support the trial court's conclusion that the parties
"mutually modified those portions of the Property Settlement
Agreement dated January 24, 1984 which sought to set spousal
support by means of a fixed formula." Acquiescence to payments
in excess of that called for under the parties' agreement
required no consideration on wife's part. The evidence does not
support husband's assertion that wife agreed to forego litigation
in exchange for the greater payment. However, nothing precludes
husband from paying wife pursuant to the terms of the parties'
agreement. According to the terms of the agreement, husband was
required to pay $700 per month based upon his draw. Therefore,
the trial court erred in finding that a spousal support arrearage
began to accrue after January 1993.
We also find that the trial court erred in interpreting the
parties' agreement to require spousal support payments after
husband reached age sixty and no longer received his draw. In
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pertinent part, the parties' agreement provided as follows:
Upon Husband attaining the age of Sixty (60)
years and retiring from his professional
practice or employment, if spousal support
has not been terminated earlier by force of
the other provisions of this Agreement, the
parties will negotiate in good faith, based
upon the circumstances and conditions at the
time, to fix the amount of spousal support
the Wife is entitled to, if any.
Under this provision, the original support obligation ran only
through the time husband was under age sixty and still receiving
his draw. Clearly, if husband was not receiving a monthly income
from Hunton & Williams, wife's spousal support was eliminated by
operation of the parties' agreement. The parties also
contemplated the possibility that, notwithstanding the fact that
support had not otherwise terminated, wife would no longer be
entitled to spousal support after husband's retirement. The
agreement clearly did not extend support payments at the previous
level indefinitely. While husband agreed to pay support to wife
"so long as they shall both live and she shall remain unmarried,"
the more specific provision required renegotiation in good faith,
with the possible cessation of any support, after husband reached
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age sixty and retired. As both these criteria have now
occurred, husband's obligation to pay spousal support ended.
1
We previously ruled that the spousal support payment was
based upon husband's draw, not his employment as an attorney.
Husband's draw ended in July 1994, the same month husband turned
sixty. The fact that husband did not retire from the practice of
law until October 1995 does not extend the time for which spousal
support payments were required to be made.
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Code § 20-109 is self-executing and no longer requires that a
party obtain a decree terminating spousal support when the terms
of the agreement explicitly provide for termination. Under the
terms of the agreement, the parties are required to renegotiate
the amount of spousal support to which wife is now entitled, if
any, in light of their current "circumstances and conditions."
In the event they do not agree, the issue of support shall be for
the court to decide.
Attorney's Fees
The trial court awarded husband attorney's fees attributable
to the first action. In the absence of a specific remand for the
determination of attorney's fees, the trial court did not err in
failing to award any fees attributable to the first appeal. See
O'Loughlin v. O'Loughlin, 23 Va. App. 690, 691, 479 S.E.2d 98,
98 (1996). On remand, the trial court may consider whether to
award husband additional attorney's fees attributable to the
proceedings in the trial court that occurred after the remand
from this Court's prior decision. On remand, the trial judge
shall also award husband reasonable fees for this appeal.
Conclusion
In summary, the circuit court's decision that husband was
required to pay $2,000 in monthly spousal support to wife
beginning in January 1993 is reversed and the matter remanded to
the trial court for further proceedings consistent with this
decision. The circuit court's award of attorney's fees is
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affirmed. On remand, the circuit court may consider an
additional award of attorney's fees to husband attributable to
the proceedings before it and on appeal.
Affirmed in part,
reversed in part,
and remanded.
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