COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
SENA HOPE TAYLOR FLEMING
OPINION BY
v. Record No. 2277-99-3 JUDGE JAMES W. BENTON, JR.
JULY 18, 2000
CHRISTOPHER D. FLEMING
FROM THE CIRCUIT COURT OF WISE COUNTY
Ford C. Quillen, Judge
Joseph F. Hunnicutt (Adkins, Elkins &
Hunnicutt, on brief), for appellant.
Jeffery A. Sturgill (Richard D. Kennedy;
Sturgill & Kennedy, on brief), for appellee.
After Christopher D. Fleming and Sena Hope Taylor Fleming,
husband and wife, entered into a property separation agreement
and while their divorce suit was pending, the wife filed for
bankruptcy. In the final decree of divorce, the trial judge
ruled that the wife's bankruptcy constituted a material breach
of the separation agreement, decreed that the agreement be
affirmed, and ordered the wife to pay to the husband, as lump
sum spousal support, an amount equivalent to the joint debt that
was discharged in bankruptcy. The wife contends the trial judge
erred because the debts had been discharged in bankruptcy, the
parties had waived spousal support in the agreement, the husband
had not sought this relief in the pleadings, and the husband did
not object in bankruptcy court to discharge of the debts. For
the following reasons, we reverse the decree.
I.
The husband and wife entered into an agreement dated May
15, 1998, which acknowledged their marital separation. In
pertinent part, the agreement provided that the wife would be
solely responsible for payment of various credit card debts
totaling $11,000 and would "releas[e] husband of all
obligations" on those debts. The wife also agreed to extinguish
a debt owed to the husband's mother by paying "one hundred and
fifty dollars a month until a total of eight thousand two
hundred dollars has been met" and further agreed that "[i]f
[she] ever declares bankruptcy she must reaffirm this debt and
pay it off voluntarily or have wages garnished." The agreement
specified which assets each party would receive and recited that
"[t]he parties . . . waive all their rights to receive support
and maintenance from the other, and neither shall receive any
such support and maintenance."
The husband filed a bill of complaint for divorce on August
19, 1998. The wife filed a petition for bankruptcy in the
United States Bankruptcy Court on September 3, 1998, listing as
unsecured creditors the husband, the husband's mother, and the
various credit card entities. A month later, the husband filed
an amended bill of complaint for divorce, requesting, among
other relief, that the parties' agreement "be rescinded; that
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the property rights between the parties . . . be adjudicated
. . . ; and, that he be granted . . . further relief." On
January 8, 1999, the bankruptcy court entered an order
discharging the wife from her debts, including the credit card
accounts and the money owed to the husband's mother. After her
discharge in bankruptcy, the wife filed an answer and cross bill
requesting that the parties' agreement "be incorporated into the
final decree of divorce."
Following the taking of depositions and ore tenus evidence
in the divorce proceeding, the parties filed written arguments.
The trial judge ruled in a letter opinion as follows:
It is further noted in Paragraph III of the
Separation Agreement that if the wife ever
declares bankruptcy, she must reaffirm this
debt. The wife's filing of bankruptcy
amounts to a repudiation of the Separation
Agreement for all three debts and
constitutes a material breach of the
contract since the husband is obligated on
two of these credit cards. The Court finds
that these debts are due and owing by the
wife to the husband pursuant to this
Agreement even though they have been
bankrupted by the wife. The Court holds
pursuant to the cases of Carter v. Carter,
18 Va. App. 787, and Blythe v. Blythe, 36
Va. Cir. 162, that these obligations (even
though bankrupted) still amount to
obligations between the parties and are
enforceable by the Court. The Court notes
that in the past, Virginia has allowed debts
to be paid by contempt proceedings,
rescission, or repudiation of the Agreement.
Since the Agreement has been complied with
in all respects except for the bankruptcy,
the Court reaffirms the Separation Agreement
as equitable distribution in this case and
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further reaffirms the wife's contractual
obligations [to pay the husband's mother]
under Paragraph III of the Separation
Agreement. The Court affirms the Separation
Agreement and reaffirms the obligation of
$14,557 on behalf of the wife. The Court
further orders that the wife pay to the
husband spousal support in the lump sum of
$14,557 to be paid in installments of $200
per month, beginning on September 1, 1999.
This appeal followed entry of the final decree of divorce,
which granted the husband a divorce on the ground of desertion,
"affirm[ed] the Agreement," and, ordered the wife, "instead of
the payments of the debts . . . required under . . . the
Agreement," to pay the husband "spousal support . . . in the
lump sum of $14,557 . . . in installments of $200 per month
. . . until the entire lump sum is fully paid."
II.
In Carter v. Carter, 18 Va. App. 787, 447 S.E.2d 522
(1994), we ruled that "[b]y seeking and accepting discharge [in
bankruptcy] from his obligation under the [property settlement]
agreement, [the spouse] repudiated the agreement . . . [and]
thereby failed in the due performance of his obligation
thereunder, giving [the other spouse] the right to seek
rescission pursuant to [the terms of the agreement]." Id. at
790, 447 S.E.2d at 523. Thus, we upheld the trial judge's order
rescinding the agreement and granting of a monetary award as a
distribution of the marital assets of the party. See id. at
788-89, 447 S.E.2d at 523.
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Although the husband in this case requested the remedy of
rescission in his amended bill of complaint, the trial judge did
not order that relief. Instead, the trial judge "reaffirm[ed]
the Separation Agreement as equitable distribution and further
reaffirm[ed] the wife's contractual obligations [to pay the
husband's mother] under . . . the Separation Agreement." These
circumstances are analogous to Mosley v. Mosley, 19 Va. App.
192, 450 S.E.2d 161 (1994), where the husband filed for
bankruptcy and obtained a discharge from all the parties'
marital debts. See id. at 194, 450 S.E.2d at 162-63. In
reversing a lump sum spousal support award, we noted the
following:
[A]lthough the trial judge characterized the
award as "lump sum spousal support," he
specifically listed as its purpose "to
compensate [wife] for 1/2 the value of
[husband's] use of the marital home [which
was based on his failure to make mortgage
payments as agreed], 1/2 of the debt to the
credit union and 1/2 of all other secured
and unsecured marital debt." This language
makes clear that the trial court's purpose
in making the award was to hold husband
financially responsible for one-half of all
marital debts, which would, in effect, serve
to circumvent the discharge granted by the
federal bankruptcy court.
Id. at 196-97, 450 S.E.2d at 164.
Here, the trial judge awarded the husband spousal support,
even though the pleadings contained no request for it. See Boyd
v. Boyd, 2 Va. App. 16, 17-18, 340 S.E.2d 578, 579 (1986)
("hold[ing] that it was error for the trial court to have
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awarded spousal support to a party whose pleadings requested no
such relief"). Furthermore, under Code § 20-109, when a
contract between the parties is filed before entry of the final
decree, the trial judge may not enter an order or decree for
spousal support except in accordance with that contract. See
White v. White, 257 Va. 139, 144, 509 S.E.2d 323, 325 (1999).
In this case, the contract explicitly states "[t]he parties
. . . waive all their rights to receive support . . . from the
other, and neither shall receive any such support." The trial
judge, however, granted relief to the husband by crafting a lump
sum award of spousal support that represented the amount of debt
the wife was discharged from paying by order of the bankruptcy
court. In so doing, the trial judge ordered the wife to make
"spousal support" payments, in violation of Code § 20-109. In
addition, the order impermissibly "would, in effect, serve to
circumvent the discharge granted by the federal bankruptcy
court." Mosley, 19 Va. App. at 197, 450 S.E.2d at 164.
For these reasons, we reverse that portion of the final
decree pertaining to the property of the parties and awarding
lump sum spousal support, and we remand for reconsideration
consistent with the rulings herein.
Reversed and remanded.
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