COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia
THOMAS J. SULLIVAN, JR.
OPINION BY
v. Record No. 0027-00-4 JUDGE JAMES W. BENTON, JR.
NOVEMBER 21, 2000
MARY F. SULLIVAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge
Theresa E. Cummins (William B. Reichhardt;
Margaret B. Craig; William B. Reichhardt &
Associates, on brief), for appellant.
J. Thomas Fromme, II (Sherman & Fromme, P.C.,
on brief), for appellee.
This appeal arises from an order enforcing a property
settlement agreement, which was affirmed, ratified, and
incorporated into an order in a prior divorce proceeding.
Thomas J. Sullivan contends the trial judge committed five
reversible errors in a contempt proceeding initiated by his
former wife, Mary F. Sullivan. For the reasons that follow, we
affirm the decision.
I.
Thomas J. Sullivan and Mary F. Sullivan were divorced by a
decree dated April 26, 1976, that reserved for future
consideration issues of "alimony, support, maintenance,
arrearage, court costs and counsel fees." On July 9, 1976, a
judge approved, ratified, and incorporated into a court order
the parties' property settlement agreement. Under the heading
"Custody, Alimony, Support and Maintenance," the agreement
contained the following provisions relevant to this appeal:
b. The Husband shall make the following
periodic payments to the Wife for the
maintenance and support of the Wife and for
the maintenance and support of the two minor
children of the parties:
The sum of [$1,300] per month, commencing on
the 9th day of July, 1976, and continuing on
the 5th day of each and every month
thereafter. As each child dies, marries,
attains the age of eighteen (18) years or
otherwise becomes emancipated, whichever
event first occurs, the foregoing sum shall
be reduced by [$300] per month. In the
event of the Wife's remarriage, death or the
Husband's death, said sum shall be reduced
in the amount of [$700] per month.
* * * * * * *
e. The Husband shall maintain at least
[$30,000] worth of unencumbered life
insurance insuring his life, naming the Wife
and the children as beneficiaries
thereunder.
In April 1999, the wife filed a motion for rule to show
cause against the husband because he had failed to furnish proof
of life insurance coverage. The husband responded, in part,
that the intent of the agreement was to provide financial
support for the minor children, that the children were then
thirty-four and thirty-five years old, respectively, and that he
could not now purchase life insurance because of his age.
Neither party testified at trial. Other evidence proved the
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husband had a life insurance policy until six years after his
retirement. In 1992, he waived further coverage, terminating
the policy.
In pertinent part, the trial judge found as follows:
Paragraph 12(b) of the . . . Property
Settlement Agreement contemplates the
continuation of spousal support after the
[husband's] death. The Property Settlement
Agreement provides for life insurance under
the section entitled Custody, Alimony,
Support and Maintenance. The obvious intent
of the parties in including the policy in
the Property Settlement Agreement was to
enable the [wife] to maintain herself after
the death of her former husband.
Therefore, even under the 1976 language
of Section 20-109.1, the Court can enforce
paragraph 12(e) of the Property Settlement
Agreement requiring the [husband] to
maintain the life insurance policy. . . .
[H]ere, the parties specifically
contemplated extending the [husband's]
support obligation past his death, and
incorporated that contemplation in a valid
final decree of divorce. The court may now
enforce that obligation in a contempt
proceeding, as the court may enforce any
other valid provision of a Final Decree of
Divorce.
The judge ordered the husband, at his option, either to purchase
a life insurance policy consistent with the agreement or post a
bond in the amount of $30,000 to ensure performance of the
obligation. The judge also awarded attorney fees to the wife.
II.
The husband contends the trial judge lacked authority to
enforce the life insurance provision because that provision
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conflicted with the law in force in 1976. The agreement
specifically provided that "the law of Virginia as it presently
exists" would govern. He argues that the life insurance
provision does not concern the maintenance of the wife or the
minor children and that, therefore, the trial judge lacked
jurisdiction to incorporate it in 1976 or to enforce it in this
proceeding.
In 1976, Code § 20-109.1 provided as follows:
Any court may affirm, ratify and incorporate
in its decree dissolving a marriage or
decree of divorce . . . any valid agreement
between the parties, or provisions thereof,
concerning the conditions of the maintenance
of the parties, or either of them and the
care, custody and maintenance of their minor
children. Where the court affirms, ratifies
and incorporates in its decree such
agreement or provision thereof, it shall be
deemed for all purposes to be a term of the
decree, and enforceable in the same manner
as any provision of such decree.
The husband directs us to no cases in Virginia or elsewhere
that define the term "maintenance." Rather, he cites the
language in the current statute, allowing trial judges to
incorporate by reference into a decree an agreement containing
any "condition or consideration, monetary or nonmonetary," Code
§ 20-109.1, as proof that the legislature intended to enlarge
the scope of the statute to include conditions such as
maintaining life insurance. He asserts that, by implication,
the scope of the statute in 1976 was not so broad.
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We find unpersuasive the husband's reasoning. The term
"maintenance" as used in the statute is much broader than the
provision of food, clothing, and shelter; it includes a broad
range of benefits and other conveniences. To rule otherwise is
to give "an unduly narrow construction of Code § 20-109.1."
Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 866 (1975).
Indeed, in Morris, the Supreme Court ruled that a husband's
obligation in a property settlement "agree[ment] to maintain a
$10,000 life insurance policy on his life for the benefit of
each child" was a provision "reasonably relate[d] to the care
and maintenance of the children." Id. at 459-60, 219 S.E.2d at
867.
Moreover, as the wife aptly notes, the life insurance
provision is contained in a section of the agreement entitled,
"Custody, Alimony, Support and Maintenance." It required the
husband to name as beneficiaries the wife and the children. The
life insurance policy was one of several benefits which the
husband specifically agreed in this section to provide them.
The parties agreed upon the insurance provision without any time
limitation, requiring only that the proceeds of the insurance
policy were to be paid upon the death of the husband. The
husband's agreement to maintain this life insurance policy was
not inconsistent with the policy and requirements of the statute
as it existed in 1976. It was an obligation "reasonably
relate[d]" to the maintenance of the wife and the children and
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not unlike "similar provisions [that] have been held to be
incorporated without question into decrees in other divorce
proceedings." Id. at 460, 219 S.E.2d at 867.
The trial judge noted that provision 12(b) of the agreement
"contemplates the continuation of spousal support after the
[husband's] death." To decide this case, we need not address
the parties' intent in providing in section 12(b) of the
agreement that "[i]n the event of . . . the Husband's death" the
unitary support "shall be reduced in the amount of [$700] per
month." Regardless of the parties' intent in this provision,
the husband expressly and unconditionally agreed to maintain the
life insurance policy for the benefit of the wife and his
children. The proceeds were to be paid on his death. Thus, we
hold that the insurance provision fulfills the "conditions of
the maintenance" standard of Code § 20-109.1 and is a valid,
enforceable part of the agreement.
III.
The husband also argues that Code § 20-107 as it existed in
1976 precluded the trial judge's finding because it forbade
courts from decreeing the payment of support and maintenance
after the death of the payor. In pertinent part, this statute
provided that "the court shall have no authority to decree
support of children or support and maintenance of the spouse to
continue after the death of the person ordered to pay such
support and maintenance." Id.
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The trial judge's order did not require the husband to pay
spousal support after his death. The trial judge merely ordered
the husband to honor his obligation to maintain the life
insurance policy during his life. In this regard, this case is
similar to Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974),
where the trial judge "approved, ratified, and confirmed [in the
final divorce decree] the [parties' property settlement]
agreement and ordered the parties to fully comply with its terms
and conditions." Id. at 652, 203 S.E.2d at 124. The Supreme
Court recognized the validity and enforceability of the
agreement, which, among its provisions, "require[d] the husband
to pay for and maintain certain life insurance policies on his
life until the youngest child becomes 23 and to name a trust for
the benefit of the children as beneficiary of these policies."
Id. at 653-54, 203 S.E.2d at 125.
A payment from an insurance company, a third party, upon
the death of the husband is not a support payment from the
estate of the husband. Furthermore, as earlier noted, this was
a valid court-approved agreement between the parties that was
consistent with the public policy favoring voluntary resolution
of disputes concerning maintenance and support. See Morris, 216
Va. at 459, 219 S.E.2d at 867. See also Cutshaw v. Cutshaw, 220
Va. 638, 641, 261 S.E.2d 52, 54 (1979) (holding that the
jurisdiction of the divorce court with regard to support and
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maintenance is statutorily determined "unless otherwise provided
by agreement incorporated into the divorce decree").
Accordingly, we hold that the trial judge properly required
the husband to comply with the terms of the agreement. Nothing
in Code § 20-107 as it existed in 1976 precluded the
incorporation of the agreement or the enforcement of its
provisions.
IV.
The husband next contends that the wife's motion to show
cause must fail because it referenced only the April 26, 1976
decree of divorce, which preceded the signing of the agreement
on July 8, 1976. We find no merit in this argument. The
divorce decree reserved for future determination the issues of
support and maintenance. Those issues were settled by the
parties' agreement, which was "approved, ratified, affirmed and
incorporated" as the court's decree by order dated July 9, 1976.
See Rogers v. Damron, 23 Va. App. 708, 713, 479 S.E.2d 540, 542
(1997) (holding that the trial judge had the "power to
incorporate a settlement agreement in a decree following the
entry of a decree of divorce").
Although the husband did not raise this issue in his
initial response to the wife's motion, he did mention it in a
memorandum requesting that the trial judge dismiss the motion.
At trial, both parties proceeded on the basis that the judge was
enforcing the July 9, 1976 order, which incorporated the
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property settlement agreement. Moreover, the trial judge
explicitly mentioned both the July 8, 1976 agreement and the
July 9, 1976 order in his final order of December 2, 1999.
These circumstances establish that the parties and the trial
judge clearly were aware throughout the proceedings that the
July 9, 1976 order was the one at issue. Accordingly, we hold
that the trial judge did not err in refusing to dismiss the show
cause motion.
V.
The husband contends the trial judge should not have
adjudicated this case without joining the adult children as
necessary parties. He argues that the wife did not allege she
was acting in the interests of the children and that no argument
was heard concerning the allotment of the $30,000 between the
wife and the children.
Code § 8.01-5 provides that no suit shall abate or be
defeated by nonjoinder of parties and that the trial judge by
order may add parties to promote the ends of justice. The
husband makes no convincing argument that the children were
necessary to this suit. The life insurance provision stated
that the wife and the children should be named the beneficiaries
of the policy. The wife was the signatory to the agreement that
she was seeking to enforce. Clearly, as a direct beneficiary of
the agreement and a party to the agreement, the wife had the
power to enforce the provisions of the agreement.
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Furthermore, although the children are listed in the
agreement as beneficiaries of the life insurance, no reason
exists why the trial judge could not adjudicate this matter
without the children. The husband raises the possibility that
the children will contest the amount of money they should
receive under the insurance policy. The final order in this
case, however, merely requires the husband to comply with the
agreement which he signed or post a bond to ensure his
compliance with that agreement. It does not require the husband
or the judge to apportion money between the children and the
wife. Accordingly, we hold that the trial judge did not err in
denying the husband's request to join the children as parties.
VI.
The husband further contends the trial judge should not
have ordered him to pay attorney's fees. The husband argues
that the judge took the arguments under advisement several times
and stated that the husband had raised a number of close issues.
Furthermore, the judge acknowledged that, because of the
husband's advanced age, it would be almost impossible for him to
acquire life insurance. The husband also argues the trial judge
did not specifically find him in contempt of court. He,
therefore, contends the award of attorney's fees was erroneous.
Judges presiding over contempt proceedings in divorce suits
have the discretion to award counsel fees. Carswell v.
Masterson, 224 Va. 329, 332, 295 S.E.2d 899, 901 (1982). The
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trial judge's failure to use the word "contempt" in his order
does not alter the effect of his ruling. As in Carswell, the
wife had to resort to legal proceedings to secure compliance
with a valid court order. In awarding legal fees, the trial
judge found that the husband failed to perform a legal duty.
Furthermore, simply because the trial judge ordered the husband
to comply with the life insurance provision, the alleged
impossibility of securing such a policy does not provide a basis
for establishing an abuse of discretion by the trial judge in
awarding attorney's fees. The husband's reliance on Wilson v.
Collins, 27 Va. App. 411, 499 S.E.2d 560 (1998), does not aid
his argument because in that case we held that the trial judge
had incorrectly found a party in contempt and therefore could
not order that party to pay attorney's fees.
Here, the trial judge's final ruling on the wife's motion
was appropriate. No evidence proves the judge abused his
discretion in awarding fees. Accordingly, we hold that the
trial judge did not err.
For these reasons, we affirm the trial judge's order.
Affirmed.
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