COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia
JOHN L. MARTIN
MEMORANDUM OPINION * BY
v. Record No. 0322-01-4 JUDGE ROBERT J. HUMPHREYS
JANUARY 29, 2002
C. MARIE MARTIN
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
John L. Martin, pro se.
Ilona Ely Freedman Grenadier (Elaine M.
Vadas; Grenadier, Anderson, Simpson &
Duffett, P.C., on brief), for appellee.
John L. Martin appeals a decision of the trial court
denying his motion for a reduction in spousal support. Martin
contends that the trial court erred in finding the parties'
property settlement agreement ("PSA") was not subject to
modification, that it was unambiguous, that his former wife had
no duty to maximize her income, and in failing to impute income
to her. For the reasons that follow, we affirm the decision of
the trial court and remand.
Martin ("husband") and C. Marie Martin ("wife") entered
into a PSA on October 13, 1997. The final divorce decree,
entered on June 30, 1998, ratified, approved, affirmed and
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
incorporated the PSA. Paragraph seven of the PSA states as
follows:
7. Spousal Support
The Husband shall pay, effective 9/1/97, and
on the first of each month thereafter, the
sum of $1200.00 monthly to the Wife for the
maintenance and support of the Wife. It is
understood that this amount shall be
deductible to the Husband and includable in
Wife's gross income. The spousal support
contained herein shall terminate upon the
death of either party or upon Wife's
remarriage, whichever first occurs. It is
further agreed that there shall be no
reduction in support unless Wife is earning
in excess of $35,000.00 per year in gross
income, and should there be a modification
downward if Wife is earning in excess of
$35,000.00, and her gross income through no
fault of her own should fall to $35,000.00
or below, the original spousal support of
$1200.00 shall be the minimum amount for
which the Husband shall be obligated to pay.
There shall be no increase above $1200.00
monthly unless Husband's gross income
exceeds $90,000.00. Husband's annual income
from all sources, he represents, is no
greater than $65,000.00.
Neither party opposed the ratification, affirmation and
incorporation of the PSA into the final decree.
On March 31, 2000, the trial court issued a rule to show
cause against husband based upon wife's allegation that he had
failed to make timely spousal support payments. On April 13,
2000, husband filed a motion for a reduction in spousal support.
On April 20, 2000, wife filed a motion to enjoin husband from
seeking to reduce spousal support while he was in arrears.
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At a May 5, 2000 hearing on the matter, the trial court
found husband in arrears in the amount of $3,500, but reserved
the remaining issues for a hearing at a later date. After a
subsequent hearing on July 17, 2000, the trial court found
husband in willful civil contempt for failing to make the
spousal support payments pursuant to the PSA, again reserving
the remaining issues for hearing at a later time.
Finally, on October 5, 2000, after yet another hearing, the
trial court denied husband's motion for a spousal support
reduction. The court found that the PSA was not generally
modifiable, that the terms of the PSA were unambiguous and not
subject to the admission of parol evidence, that the PSA did not
impose a duty upon wife to maximize her income, and that, thus,
no income could be imputed to wife. Husband appeals this
ruling.
By well established principles, we review the facts in the
light most favorable to the party prevailing below, in this
case, wife. 1 Further, "'[w]here, as here, the court hears the
evidence ore tenus, its finding is entitled to great weight and
will not be disturbed on appeal unless plainly wrong or without
evidence to support it.'" 2
1
Richardson v. Richardson, 30 Va. App. 341, 349, 516 S.E.2d
726, 730 (1999).
2
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d
630, 631 (1988) (quoting Martin v. Pittsylvania Dept. of Social
Services, 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1996)).
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Husband argues that because the PSA is silent as to whether
it is "generally modifiable," it must be construed to be
"generally modifiable" pursuant to Code § 20-109(A). He further
contends that Code § 20-109(C) does not limit the trial judge's
authority to modify the PSA. 3 We disagree.
3
Code § 20-109, at the time of the filing of the PSA and
entry of the final decree, provided as follows:
§ 20-109. Changing maintenance and support
for a spouse; effect of stipulations as to
maintenance and support for a spouse;
cessation upon cohabitation, remarriage or
death. —
A. Upon petition of either party the court
may increase, decrease, or terminate spousal
support and maintenance that may thereafter
accrue, whether previously or hereafter
awarded, as the circumstances may make
proper. Upon order of the court based upon
clear and convincing evidence that the
spouse receiving support has been habitually
cohabiting with another person in a
relationship analogous to a marriage for one
year or more commencing on or after July 1,
1997, the court may decrease or terminate
spousal support and maintenance unless (i)
otherwise provided by stipulation or
contract or (ii) the spouse receiving
support proves by a preponderance of the
evidence that termination of such support
would constitute a manifest injustice.
B. In suits for divorce, annulment and
separate maintenance, and in proceedings
arising under subdivision A 3 or L of
§ 16.1-241, if a stipulation or contract
signed by the party to whom such relief
might otherwise be awarded is filed before
entry of a final decree, no decree or order
directing the payment of support and
maintenance for the spouse, suit money, or
counsel fee or establishing or imposing any
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In the matter at hand, husband and wife entered into a
valid settlement agreement which specified the amount of spousal
support he would pay, and that she would receive. The agreement
did not grant the trial court the authority to "generally
modify" its terms, nor, as husband suggests, was the PSA silent
as to whether it was "generally modifiable." Instead, by the
agreement's express language, the parties granted the trial
court the authority to modify spousal support only in the case
of specified events. Namely, in the event that wife began
earning in excess of $35,000 per year in gross income, or
husband earned in excess of $90,000. Where, as here, the
parties have agreed to a sum of spousal support and the
agreement has been incorporated into the final decree of
divorce, the trial court does not have the authority to modify
support, except as provided in the agreement. Accordingly, we
find no error in the trial court's determination that the PSA
other condition or consideration, monetary
or nonmonetary, shall be entered except in
accordance with that stipulation or
contract. If such a stipulation or contract
is filed after entry of a final decree and
if any party so moves, the court shall
modify its decree to conform to such
stipulation or contract.
C. Unless otherwise provided by stipulation
or contract, spousal support and maintenance
shall terminate upon the death of either
party or remarriage of the spouse receiving
support.
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was not "generally modifiable" as it pertained to spousal
support.
Husband next argues that the PSA is ambiguous, thus, the
trial court erred in refusing to permit the introduction of
parol evidence to determine the intent of the parties.
Specifically, husband contends that the PSA is ambiguous in that
it fails to set forth the period within which the parties
intended wife to begin earning at least $35,000 in gross income.
We disagree.
Property settlement agreements are contracts and are
subject to the same rules of construction that apply to the
interpretation of contracts generally. 4 "A well-settled
principle of contract law dictates that 'where an agreement is
complete on its face, is plain and unambiguous in its terms, the
court is not at liberty to search for its meaning beyond the
instrument itself.'" 5
"It 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
4
Southerland v. Southerland, 249 Va. 584, 588, 457 S.E.2d
375, 378 (1995).
5
Ross v. Craw, 231 Va. 206, 212, 343 S.E.2d 312, 316 (1986)
(quoting Globe Company v. Bank of Boston, 205 Va. 841, 848, 140
S.E.2d 629, 633 (1965)).
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what the written instrument plainly
declares." A corollary to the last stated
principle is that courts cannot read into
contracts language which will add to or take
away from the meaning of the words already
contained therein. 6
"Moreover, what the parties claim they might have said, or
should have said, cannot alter what they actually said." 7
Here, we agree with the trial court's determination that
the language of the PSA is clear in demonstrating that the
parties contemplated modifications in spousal support based only
upon very specific conditions. Furthermore, even though the PSA
may not contain any reference to the time-frame within which the
parties intended wife to meet one of these conditions, namely,
to earn $35,000 in gross income, the parties had a right to
agree to what was contained therein, unless their agreement was
prohibited by public policy. No such prohibition exists here.
Indeed, "[m]arital property settlements entered into by
competent parties upon valid consideration for lawful purposes
are favored in the law and will be enforced unless their
illegality is clear and certain." 8 Accordingly, since "'[p]arol
evidence of prior or contemporaneous oral negotiations or
6
Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398
(1984) (quoting Mead v. Wallen, 226 Va. 465, 467, 311 S.E.2d
103, 104 (1984)).
7
Id. at 188, 313 S.E.2d at 398.
8
Cooley v. Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52
(1980).
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stipulations is inadmissible to vary, contradict, add to, or
explain the terms of a complete, unambiguous, unconditional
written instrument,'" 9 we find no error in the trial court's
refusal to permit parol evidence on this issue.
Finally, husband argues that the trial court erred in
holding that the terms of the PSA imposed no duty of good faith
upon wife to maximize her income and, therefore, that income
could not be imputed to her under the terms of the PSA. Once
again, we agree with the trial court.
As we have found previously, the terms of this PSA are
clear and unambiguous. Although the terms of the PSA clearly
express the parties' intention that wife will work, the PSA does
not require, even by implication, wife to maximize her income.
It is true that, generally, one who seeks spousal support is
obligated to earn as much as he or she reasonably can to reduce
the amount of the support need, and a spouse may not choose a
low paying position that penalizes the other spouse. 10 However,
here, unlike the parties in Srinivasan and Blackburn v.
Michael, 11 relied upon by husband, the parties agreed upon the
amount of spousal support and the terms under which it would be
9
McComb v. McComb, 226 Va. 271, 274, 307 S.E.2d 877, 879
(1983) (quoting Godwin v. Kerns, 178 Va. 447, 451, 17 S.E.2d
410, 412 (1941)).
10
Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396
S.E.2d 675, 679 (1990).
11
30 Va. App. 95, 515 S.E.2d 780 (1999).
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paid. In addition, the parties expressly precluded the trial
court from modifying spousal support, except upon the occurrence
of certain pre-determined conditions.
It is well established that in determining the intent of
the parties, courts will generally not infer covenants and
promises that are not contained in the written provisions of a
contract. 12 Further, as stated above, "Code § 20-109(C)
expressly limits the court's authority to modify an agreed upon
spousal support award according to the terms of a stipulation or
contract signed by the parties." 13
Thus, since "[t]he trial court's decision not to impute
income 'will be upheld on appeal unless it is plainly wrong or
unsupported by the evidence,'" 14 we affirm the decision of the
trial court on these issues.
Finally, in accordance with the parties' PSA, we grant
wife's request for attorney fees incurred on appeal, and remand
this matter to the trial court solely for a determination of the
appropriate amount.
Affirmed and remanded.
12
See Pellegrin v. Pellegrin, 31 Va. App. 753, 759, 525
S.E.2d 611, 614 (2000).
13
Blackburn, 30 Va. App. at 100, 515 S.E.2d at 783.
14
Saleem v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883,
887 (1998) (quoting Bennett v. Commonwealth, 22 Va. App. 684,
692, 472 S.E.2d 668, 672 (1996)).
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