COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia
MARY KATHLEEN HILL
MEMORANDUM OPINION * BY
v. Record No. 2077-01-4 JUDGE JAMES W. BENTON, JR.
JULY 2, 2002
WILLIAM JOHN HILL, SR.
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
William D. Hamblen, Judge
Charles B. Roberts for appellant.
Carol L. Hill for appellee.
This appeal arises from the trial judge's order finding that
William John Hill, Sr., the appellee, did not willfully violate
the terms of either the final decree of divorce or the parties'
property settlement agreement. Mary Kathleen Hill, the appellant,
contends the trial judge erred by (1) permitting the parties to
introduce parol evidence of the parties' intentions and (2)
finding that appellee's conduct was not willful. We affirm the
judgment.
I.
The parties were divorced by a final decree entered on
August 20, 1999. In pertinent part, the decree provides as
follows:
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
That the written settlement agreement
executed by the parties titled Property
Settlement Agreement, dated April 2, 1999,
is hereby affirmed, ratified and
incorporated, but not merged, into this
Final Decree of Divorce.
* * * * * * *
That upon the [appellee's] retirement from
the United States Navy, the [appellant]
shall then receive an amount equal to fifty
percent (50%) of the marital fraction of the
[appellee's] disposable retired pay . . . .
The property settlement agreement contains the following
provisions germane to this appeal:
Upon the [appellee's] retirement, the
[appellant] shall during the joint lives of
the parties receive as an alternate payee by
direct payment from the NAVY FINANCE CENTER
or other appropriate authority a portion of
the [appellee's] lifetime retirement
benefits, including cost-of-living increases
or other adjustments thereafter accruing.
The [appellant's] share of such benefits
shall be determined by multiplying fifty
percent (50%) of the life-time retirement
benefits receivable at any time by the
[appellee] on a monthly or other regular
basis by the "marital fraction" of such
benefits. . . .
* * * * * * *
The parties understand and agree that the
[appellee] will receive an approximate 20%
disability rating from the United States
military and that this disability rating
will reduce the gross amount that he will
receive from his military retirement in the
amount of approximately $250.00 per month.
The parties further understand and agree
that the [appellant] shall have no interest
in the separate disability check that [the
appellee] will receive from the Veteran's
Administration.
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* * * * * * *
The [appellee] agrees not to merge his
military retired pay with any other pension,
and not to waive any portion of such pay in
order to receive other retired or disability
pay, other than the above-mentioned 20%
disability rating that the parties
contemplate the [appellee] receiving. The
[appellee] agrees not to take any action
that would defeat or adversely affect the
[appellant's] right to receive her
proportionate share of the retired pay or
that would cause a reduction of or
limitation in the amount of retired pay,
(except for the 20% disability rating
identified above) to which the [appellant]
is entitled under this Agreement. The
[appellee] shall indemnify and hold the
[appellant] harmless with respect to this
provision.
In March 2001, the appellant filed a petition to require
appellee "to show cause . . . why he should not be held in
contempt . . . for his willful failure . . . to abide by the
terms" of the final decree and settlement agreement. At a
hearing, the trial judge considered evidence ore tenus. In lieu
of a transcript of that hearing, the record contains a statement
of facts. See Rule 5A:8. The statement, however, does not
consist of one document, but, instead, it is a synthesis of
appellant's written statement, appellee's objections and
alternative statement, and the trial judge's ruling adopting
parts of the two statements.
Applying the usual standard of review, we view the evidence
in the light most favorable to the appellee. Pinkard v.
Pinkard, 12 Va. App. 848, 850, 407 S.E.2d 339, 340 (1991). So
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viewed, the evidence establishes that a month after the final
decree was entered in 1999 appellee had a pre-retirement
physical examination as required by the United States Navy. He
retired from the Navy a month later. Appellee had not been
rated for disability at that time. In January 2001, the
Veterans Administration determined appellee's disability rating
to be 60%. The evidence established that "[u]pon this
disability rating being issued, the appellant's payment was
reduced from $2,038.14 per month to $1,703.24, a reduction of
$334.90 per month, as opposed to the $250.00 per month which was
stated in the property settlement agreement."
At the evidentiary hearing, "the appellant testified that
at the time of the negotiations that [led] to the execution of
the Agreement, she was extremely concerned about the issue of
disability rating because she feared that she could lose her
entire marital share of the retired pay benefit if the appellee
retired on . . . full . . . disability, and therefore she wanted
a 'ceiling' on the amount of any . . . reduction before she
would agree to the other terms and conditions of the Agreement."
In contrast, appellee testified as follows:
[H]e did not recall any specific
negotiations regarding the indemnification
language, but . . . he understood that the
purpose of that language was so that he
could not take another government or
civilian job which would negate his military
pension, so as to defeat the appellant's
right to share in his military pension. It
was his position consistently that the 20%
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was just an approximation and that neither
he nor anyone else could predict what his
ultimate disability rating would be.
Appellee testified that he had not kept any
copies of any documents which he submitted
in connection with his retirement. Further,
he testified that the . . . filing for
Compensation and Pension happens during the
normal course of every military person's
retirement and that he took no actions above
and beyond the normal course of such a
retirement. He testified that he did not
APPLY for a 60% disability rating, or any
OTHER percentage disability rating. He
filed a Veteran's Application for
Compensation or Pension, in the normal
course of his retirement, as required of all
military personnel upon retirement.
In pertinent part, the statement of facts recites that the
trial judge found as follows:
At the conclusion of the evidence, the
Court found that the Appellee had in fact
retired, and that, in the course of that
retirement, that he had received disability
pay. The Court examined the actions taken
by the Appellee in the course of that
retirement to determine whether the Appellee
had violated any of the terms of the
Agreement or the Divorce Decree. The Court
found that the Appellee had taken no
SEPARATE action in addition to that
retirement to apply for disability pay in
any specific amount and that it was not
within the Appellee's control as to what
specific percentage of disability that he
would receive. The Court found that the
Appellee had complied with military
regulations which required him to take a
physical at the time of his retirement and
that he had taken no specific action which
placed him in WILFUL contempt of Court, and
found that the Appellee had not wilfully
violated the terms of the Property
Settlement Agreement and Divorce Decree.
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II.
The principle is well established that "[i]f . . . [an]
instrument is uncertain and ambiguous, oral evidence may be
received to show all the attendant circumstances existing at the
time the deed was executed, including the situation of the
parties and their relationship." Camp v. Camp, 220 Va. 595,
598, 260 S.E.2d 243, 245 (1979). In this case the parties'
agreement provides "[t]he parties understand and agree that
[appellee] will receive an approximate 20% disability rating
from the United States military." When the parties entered into
the agreement, the appellee was on active duty in the Navy.
Because appellee had not then applied for or received a
disability rating, the term, "approximate 20% disability," was
not unambiguous. The term lacked precision and left at issue
the intention of the parties if the disability rating deviated
from the approximation. Thus, we hold that, because the words
of the agreement were of doubtful import, the trial judge did
not err in allowing parol evidence to explain the parties'
intentions. In so holding, we note the matter before the trial
court, and now before this Court, was limited to a rule to show
cause for contempt directed to the appellee. Our ruling,
therefore, does not address the meaning of "appropriate 20%
disability" or any like term of the property settlement
agreement and 1999 decree.
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III.
Appellant further contends the trial judge erred in finding
no willful violation. We disagree.
A trial judge "has the authority to hold [an] offending
party in contempt for acting in bad faith or for willful
disobedience of its order." Carswell v. Masterson, 224 Va. 329,
332, 295 S.E.2d 899, 901 (1982). See also Board of Supervisors
v. Bazile, 195 Va. 739, 745, 80 S.E.2d 566, 571 (1954). In the
civil context, "willfulness is used in the mere cognitive
sense." Intercounty Constr. Co. v. Occupational Safety & Health
Review Comm'n., 522 F.2d 777, 780 (4th Cir. 1975). "[I]t means
purposely or obstinately and is designed to describe the
attitude of a [person], who, having a free will or choice,
either intentionally disregards the [decree] or is plainly
indifferent to its requirements." United States v. Illinois
Cent. R.R. Co., 303 U.S. 239, 243 (1938).
The trial judge found that appellee had acted in accordance
with his understanding of the agreement and that he had not
taken action other than what was necessary to apply for
disability, which the decree and property settlement agreement
clearly contemplated. The judge found that appellee had taken a
physical at the time of his retirement, which military
regulations required him to take, and had taken no separate
action in willful disregard of the decree or settlement
agreement. The evidence supports these findings. The evidence
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in this case failed to prove appellee acted either in bad faith
or in willful disobedience of the decree or the agreement. For
these reasons, we affirm the judgment.
Affirmed.
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