COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Clements
Argued at Chesapeake, Virginia
RANDOLPH E. JENNINGS
MEMORANDUM OPINION * BY
v. Record No. 2058-01-1 JUDGE RICHARD S. BRAY
APRIL 30, 2002
EDITH V. JENNINGS
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Thomas B. Hoover, Judge
C. Randall Stone for appellant.
(Willafay H. McKenna, on brief), for
appellee.
Randolph E. Jennings (husband) and Edith V. Jennings (wife)
were divorced by decree of the trial court entered September 4,
1997, which expressly incorporated the terms and conditions of
the parties' "Property Settlement Agreement" (agreement). The
court thereafter considered numerous issues relating to property
and spousal support, all of which were resolved by the order on
appeal, entered July 12, 2001.
Husband contends the trial court erroneously (1) awarded
wife spousal support contrary to the provisions of the
agreement, statute, and the report and recommendation of the
commissioner in chancery, and (2) failed to consider those
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
factors specified by Code § 20-107.1 in determining such
support. On cross-appeal, wife complains the court improperly
"grant[ed] [husband] leave to file a late objection" to the
commissioner's recommendation that she be awarded attorney's
fees and erroneously classified certain property of the parties.
Finding no error, we affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
In 1992, husband instituted a "Bill of Complaint" for
divorce from wife, seeking an array of relief. Wife responded
by "Cross-Bill," also praying for a divorce and attendant
relief, specifically including "periodic . . . and . . . lump
sum . . . support and maintenance." On October 23, 1992, the
trial court ordered husband "to pay [wife] spousal support
pendente lite" of $1,300 per month, commencing October 9, 1992,
until terminated by specified events, including "modification by
[the] court."
In February 1993, the parties entered into the subject
agreement, which provided, inter alia, that:
2. Any proceedings for . . . divorce . . .
or for spousal support and maintenance,
. . . shall be subject to, and governed by,
the terms of this Agreement . . . .
* * * * * * *
- 2 -
9. The Wife [and husband are] hereby
granted the continuing right, and
specifically reserve[] the right, (unless
. . . remarrie[d]) to petition a court of
competent jurisdiction for future awards of
alimony/spousal support, said spousal
support/alimony to remain under the
jurisdiction of a court of competent
jurisdiction. . . . The Husband represents,
and the Wife relies on that representation,
that he is currently unemployed and receives
no other income except from retirement,
social security, interest and dividends,
which have been disclosed. The Husband
shall continue to pay to the Wife, pursuant
to the pendente lite order in the Circuit
Court of the County of Fairfax the pendente
lite support of $1,300.00 per month alimony
through the February 1993 payment, at which
time the pendente lite support shall cease.
* * * * * * *
25. Each party does hereby release and
forever discharge the other of, and from,
all causes of action, claims or rights or
demands whatsoever, in law or in equity,
. . . under 20-107.1 and/or 20-107.3 of the
1950 Code of Virginia, as amended, including
all rights of alimony and/or spousal support
and equitable distribution and all rights to
share in the property, including pensions,
et. al., of the other, except as set forth
in this Agreement.
* * * * * * *
32. This Agreement shall be construed in
accordance with the laws of the State of
Virginia, as they presently exist, and
pursuant to Sections 20-109 and 20-109.1 of
the 1950 Code of Virginia, as amended.
By order entered March 10, 1993, the trial court "affirmed and
incorporated . . . pendente lite" the agreement and directed
"the parties . . . to comply with its terms."
- 3 -
Husband and wife thereafter reconciled and, upon joint
motion, the then pending divorce proceedings were ordered
"non-suited without prejudice to either party." However,
further marital discord followed, and, on June 28, 1994, the
parties again separated. Shortly thereafter, wife initiated the
instant cause for divorce, and husband responded with a
"Cross-Bill" for like relief. Each moved the court to adopt the
terms of the original agreement, 1 with wife expressly seeking
"continue[d]" and "additional" spousal support.
Husband and wife were subsequently divorced by a final
decree of the trial court, entered September 4, 1997, which
"ratified, confirmed, approved and incorporated" the terms of
the agreement. However, because "spousal support and certain
property issues, rights and interests remain[ed] unresolved
between the parties, . . . [the] Court specifically reserve[d]
jurisdiction to determine those issues which are executory
pursuant to the Agreement . . ." and referred the matter to a
commissioner in chancery (commissioner) for hearing and report
to the court.
Following extensive evidentiary hearings, the commissioner
reported his findings and recommendations to the court on August
10, 1999. After recommending resolutions for a myriad of
1
Paragraph 26 of the agreement provided that "[n]o
reconciliation of the parties . . . and no cohabitation between
[them] of any nature whatsoever [would] nullify or affect [its]
validity or enforceability . . . ."
- 4 -
property and like issues before the court, the commissioner
concluded "that unless and until the real property in issue is
sold and proceeds divided, a final award for support and
maintenance of [wife] should not be fixed by the Court." The
commissioner further recommended an award of attorney's fees
from husband to wife.
Excepting to the report, wife, in pertinent part, contended
the commissioner erroneously failed "to recommend an award of
spousal support to [her]" and omitted husband's "airplane" for
distribution as "marital propert[y]." Upon motion of wife,
husband's exceptions were "stri[cken]" as untimely filed. The
court overruled wife's exceptions, finding "[t]he Agreement
between the parties control[led]."
Following the subsequent disposition of certain properties
of the parties, the court, on March 8, 2001, conducted a final
hearing to determine the several remaining issues, apparently
then ruling ore tenus that wife was entitled to an award of $346
per month spousal support. Husband's subsequent "Motion to
Rehear, Reconsider, Modify and Vacate" was denied. An order
entered July 12, 2001, memorializing the ruling of March 8,
2001, provided that
upon consideration of the statutory factors
in § 20-107.1, the Court finds, based on the
length of the marriage, the standard of
living established therein, her need and the
defendant's ability to pay spousal support,
that it would be manifestly unjust not to
award spousal support in the reasonable
- 5 -
amount requested by plaintiff. It is
accordingly ADJUDGED, ORDERED and DECREED
that [husband] shall pay to [wife] the sum
of $346.00 each month for her support and
maintenance beginning on April 1, 2001
. . . .
Revisiting husband's "late objection" to the recommended award
of attorney's fees to wife, the court ordered "each party . . .
be responsible for his or her own attorney's fees."
II.
Relying upon the reduction of the earlier pendente lite
spousal support from $1,300 per month to zero and attendant
recitations in the agreement and Code §§ 20-109(B), -109(C), and
-109.1, husband first contends wife was required "to show a
change in circumstances" as a condition to the spousal support
award. We disagree.
Code § 20-109.1 empowers the trial court to "affirm, ratify
and incorporate by reference in its decree dissolving a marriage
. . . any valid agreement between the parties . . . concerning
the conditions of the maintenance of the parties," and "such
agreement . . . shall be deemed . . . a term of the decree
. . . ." "[N]o decree or order directing the payment of support
and maintenance for the spouse . . . shall be entered except in
accordance with that stipulation or contract." Code
§ 20-109(C). If such stipulation or contract "provided no
separate criteria for determining how or when to modify
support," the party seeking modification must "show a material
- 6 -
change in circumstances warranting a modification of support."
Blackburn v. Michael, 30 Va. App. 95, 101, 515 S.E.2d 780, 783
(1999). Thus, for husband to prevail on his argument, the
record must establish that the court improperly modified spousal
support contrary to the terms of the agreement and Code
§ 20-109(C).
"In Virginia, property settlement agreements are contracts
and subject to the same rules . . . of interpretation as other
contracts." Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d
593, 595 (1986). Thus,
"[i]t is the function of the court to
construe the contract made by the parties,
not to make a contract for them. The
question for the court is what did the
parties agree to as evidenced by their
contract. The guiding light in the
construction of a contract is the intention
of the parties as expressed by them in the
words they have used, and courts are bound
to say that the parties intended what the
written instrument plainly declares."
Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398
(1994) (quoting Meade v. Wallen, 226 Va. 465, 467, 311 S.E.2d
103, 104 (1984)). Interpreting an agreement on appeal, we are
not bound by the trial court's construction of the provisions.
See Smith, 3 Va. App. at 513, 351 S.E.2d at 595.
The instant agreement "granted" both husband and wife "the
continuing right" to "petition a court . . . for future awards
of alimony/spousal support," "specifically reserv[ing] [such]
right" to each party. The agreement thereafter references
- 7 -
husband's limited income and terminates the earlier pendente
lite award. However, the reduction of spousal support to wife
was clearly subject to her right, at any time thereafter, to
petition the court for an award of such support. In then
assessing wife's entitlement to relief on the petition,
husband's employment, income and a myriad of other relevant
factors would be appropriate considerations for the court. See
Code § 20-107.1. However, the agreement does not condition
subsequent judicial intervention and review upon proof of
circumstances different from those contemporaneous with the
agreement. A contrary interpretation would be inconsistent with
the "continuing" and "reserved right" expressly conferred upon
both parties.
Moreover, as the commissioner contemplated in deferring the
issue of spousal support for determination by the court
following resolution of certain property interests, relevant
circumstances of the parties clearly changed from execution of
the agreement in February 1993 to the support hearing on March
8, 2001. Without recounting such evidence, numerous property
interests transferred, sold and otherwise altered during the
period significantly impacted both parties.
Accordingly, the court addressed spousal support consistent
both with the agreement and statute.
- 8 -
Husband next asserts that the trial court awarded spousal
support without "properly apply[ing]" all the factors in Code
§ 20-107.1. Again, we find no error.
In determining spousal support, the trial court must
consider the factors enumerated in Code § 20-107.1. See Holmes
v. Holmes, 7 Va. App. 472, 483, 375 S.E.2d 387, 394 (1988).
Although this requirement
implies substantive consideration of the
evidence presented as it relates to all of
these factors[,] [t]his does not mean that
the trial court is required to quantify or
elaborate exactly what weight or
consideration it has given to each . . . .
It does mean, however, that the court's
findings must have some foundation based on
the evidence presented.
Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426
(1986). Thus, "[w]hen the record discloses that the trial court
considered all of the statutory factors, the court's ruling will
not be disturbed on appeal unless there has been a clear abuse
of discretion." Gamble v. Gamble, 14 Va. App. 558, 574, 421
S.E.2d 635, 644 (1992) (citation omitted).
Here, the court's July 12, 2001 order recites:
[U]pon consideration of the statutory
factors in § 20-107.1, the Court finds,
based on the length of the marriage, the
standard of living established therein, her
need and the [husband's] ability to pay
spousal support, that it would be manifestly
unjust not to award spousal support in the
reasonable amount requested by [wife]. It
is accordingly ADJUDGED, ORDERED and DECREED
that [husband] shall pay to [wife] the sum
of $346.00 each month for her support and
- 9 -
maintenance beginning on April 1, 2001 and
continuing on the first of each subsequent
month until [wife's] remarriage or until the
death of either party.
The record, therefore, clearly reflects consideration of "the
statutory factors in [Code] § 20-107.1," with emphasis upon
those factual findings deemed pertinent to the decision, all of
which were well supported by the evidence. We, therefore, find
no error in the award.
Lastly, husband maintains the trial court erroneously
awarded spousal support, despite the recommendation of the
commissioner. However, contrary to husband's argument, the
commissioner did not urge the court to "deny" support but,
rather, recommended deferral of the issue "until the real
property in issue is sold and proceeds divided," a procedural
course adopted by the court.
III.
On cross-appeal, wife presents additional "Questions
Presented:" (1) "Whether the trial Court erred in granting
[husband] leave to file a late objection to that part of the
Commissioner's Report which recommended an award of attorney's
fees to [her]," and (2) "Whether the trial Court erred in
classifying property acquired by the parties during a period of
separation as separate property."
Wife's first complaint on cross-appeal is supported by an
argument that addresses "public policy" and related issues
- 10 -
attendant to the mutual "waiver" of counsel fees set forth in
the agreement. Thus, wife engages an issue distinct from her
original "Question[] Presented." Stated differently, her
argument fails to address the issue raised on cross-appeal. An
argument not fully developed in appellant's brief need not be
addressed on appeal. Rogers v. Rogers, 170 Va. 417, 421, 196
S.E. 586, 588 (1938). "We will not search the record for errors
in order to interpret the appellant's contention and correct
deficiencies in a brief." Buchanan v. Buchanan, 14 Va. App. 53,
56, 415 S.E.2d 237, 239 (1992).
Wife's second contention on cross-appeal, challenging the
court's classification of a Lincoln Town Car and an airplane,
items purchased by wife and husband, respectively, as "separate
property," is procedurally barred. Both items are specifically
addressed in paragraph 13 of the agreement, which allocates the
Lincoln to wife, as her "sole and separate property," and the
airplane to husband, as his "sole and separate property."
Wife's exceptions to the commissioner's report addressed only
omission of the airplane from "marital properties." Further,
wife's counsel "Respectfully Requested" the court to enter the
order subject of the instant appeal, which makes no mention of
either the Lincoln or the airplane.
It is well established that "[n]o ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
- 11 -
time of the ruling, except for good cause shown or to enable the
Court of Appeals to attain the ends of justice . . . ." Rule
5A:18; see Lee v. Lee, 12 Va. App. 512, 515-16, 404 S.E.2d 736,
737-38 (1991) (en banc). Clearly, the endorsement of wife's
counsel to the order evinced no objection to the contents. Wife
does not assert the "good cause" or "the ends of justice"
exceptions to Rule 5A:18, and we perceive no justification
otherwise to review the issue. See Mounce v. Commonwealth, 4
Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). Thus, Rule 5A:18
precludes consideration of the issue on appeal, and we affirm
the trial court.
Accordingly, for the reasons stated, we affirm the judgment
of the trial court.
Affirmed.
- 12 -