COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
ANDREW T. SCHNEIDER
v. Record No. 2078-96-4
DENISE M. SCHNEIDER
MEMORANDUM OPINION * BY
and JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 9, 1997
DENISE M. SCHNEIDER
v. Record No. 2153-96-4
ANDREW T. SCHNEIDER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(James W. Korman; Andrea M. Contreras; Bean,
Kinney & Korman, on briefs), for Andrew T.
Schneider.
(MaryEllen Craig; Nancy J. Wuerker; Craig &
Hirsch, on briefs), for Denise M. Schneider.
Andrew T. Schneider (husband) and Denise M. Schneider (wife)
appeal the decisions of the circuit court denying, by summary
judgment, husband's motion for modification of spousal support
and wife's motion for attorney's fees. For the following
reasons, we affirm the circuit court's decisions.
I.
The parties were married in April 1988 and divorced by final
decree entered in December 1994. The final decree incorporated
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the parties' property settlement agreement (PSA), which required
husband to pay wife $2,150 per month in spousal support. The
agreement provided that husband's spousal support obligation
would continue,
for a maximum of fifteen (15) years, [until]
the death of either party, the remarriage of
the Wife, or the Wife becomes employed
earning at least $40,000.00 annually,
whichever is sooner; provided, however,
either party may seek a modification during
the period of said obligation, but in no
event beyond fifteen (15) years, based upon a
material change of circumstances.
Husband's responses to wife's request for admissions established
that a provision had been proposed for incorporation into the
PSA, prior to its execution, which would have required wife to
make a good faith effort to obtain employment. Husband's
responses further established that wife rejected the proposed
provision. The final agreement contained no provision requiring
wife to seek employment.
In January 1996, husband filed a petition seeking a
reduction in spousal support. He alleged that wife's failure to
in good faith seek and obtain employment since the entry of the
decree constituted a material change of circumstances "from what
was reasonably anticipated by the parties at the time of the
execution of the said Agreement, i.e. that [wife] would make
persistent and good faith efforts to get employment."
It is undisputed that wife was not employed when the decree
was entered and that she remained unemployed when husband
2
petitioned for a modification of support. Husband contended that
wife was employable both at the time the decree was entered and
when he argued his petition. Wife contended that she had been
fully disabled since prior to the entry of the decree. Neither
party contended that wife's employability had changed since the
entry of the decree.
Wife filed a demurrer to husband's petition, which the
circuit court overruled. Following discovery, wife filed a
motion for summary judgment, arguing that husband had failed to
demonstrate a material change in circumstance. The court granted
wife's motion for summary judgment, finding,
the PSA is not ambiguous and that counsel is
conceding that the wife was unemployed at the
time of this agreement and she is unemployed
now, and I don't see what the change of
circumstances from that day to this is under
this agreement, particularly, the attempt of
[husband] to insert a good faith obligation
on the wife to seek employment which was
rejected by wife's counsel and this document
was executed. If this document was
ambiguous, if it was, that would certainly in
the court's view end this matter.
II.
The trial court made alternative findings. The court first
found the PSA unambiguous. It refused, therefore, to look beyond
the PSA to determine the parties' intentions and found no change
of circumstance had occurred based on the parties'
representations of wife's employment status and the absence of a
requirement in the PSA that she seek or obtain employment.
Alternatively, the court found the PSA ambiguous. It looked,
3
therefore, to husband's admissions as evidence of the dispositive
issue, viz., whether "what was reasonably anticipated by the
parties at the time of the execution of the said Agreement, i.e.
that [wife] would make persistent and good faith efforts to get
employment" had changed. Those admissions led the court to the
conclusion that the parties' expectations had not changed since
the entry of the decree.
The question of whether a contract is ambiguous is one of
law, to which we are not bound by the trial court's construction.
E.g., Ross v. Craw, 231 Va. 206, 213, 343 S.E.2d 312, 316
(1986). Here, we find the language in the PSA allowing a
modification of support upon a material change in circumstance to
be, by its very nature, ambiguous. The trial court's first
finding was, therefore, erroneous. While the PSA enumerated
certain, specific criteria affecting husband's support
obligation, it also provided generally that husband's support
obligation could be modified upon a "material change of
circumstance[]." The determination whether the circumstances
existing when the PSA was entered had subsequently changed
depended on a determination of what those circumstances initially
were, together with an examination of the present, "changed"
circumstances which may warrant modification of support. The
court had to look beyond the PSA to resolve the issue, because
the PSA itself, addressing "circumstances" generally, does not
answer either question.
4
In the present case, although first concluding the PSA was
unambiguous, the court nevertheless considered evidence relevant
to the issue of whether circumstances had changed since the entry
of the decree. Specifically, the court considered husband's
admissions in answering the specific question before it, viz.,
whether "what was reasonably anticipated by the parties at the
time of the execution of the said Agreement, i.e. that [wife]
would make persistent and good faith efforts to get employment"
had changed. The answer, as the trial court correctly found, was
no. As demonstrated by the proposed inclusion, but ultimate
rejection, of a provision which would have required wife to seek
employment, it is manifest that the circumstances under which the
parties entered the PSA did not include their intent and
expectation that wife would make persistent and good faith
efforts to become employed. The trial court's alternative
finding was, thus, correct.
Based on this analysis, we disagree with husband's
contention that the circuit court improperly decided the issue on
summary judgment. As determined from the parties' pleadings and
admissions, there were no material facts genuinely in dispute.
See Rule 2:21. 1 Since the decree was entered in the present
1
Contrary to husband's contention, it is unnecessary to rely
on wife's answers to husband's requests for discovery to
determine the issue. Furthermore, contrary to husband's
argument, the overruling of wife's demurrer does not have
preclusive effect on the court's award of summary judgment.
There is a manifest distinction between the basis for the court's
decision on a demurrer, viz., whether the petition stated a claim
upon which relief may have been granted, and the basis for the
5
case, wife has remained unemployed. Furthermore, although the
parties disagree as to whether wife is now employable, neither
contends that her employability has changed since the entry of
the decree. 2 Finally, the parties did not anticipate that wife
would make persistent and good faith efforts to gain employment
as a condition of the support husband obligated himself to pay. 3
III.
In her motion for summary judgment, wife also sought an
award of attorney's fees. She alleged an award of attorney's
fees was authorized under paragraphs 9, 11, 12, 14 and 18 of the
4
PSA, as well as under Code § 20-99(5).
Paragraph 11 of the PSA provides:
In the event that either party defaults
(..continued)
court's decision on a motion for summary judgment, viz., whether,
after review of the pleadings, orders, and admissions, all coming
subsequent to the demurrer, there are material facts genuinely in
dispute.
2
Indeed, husband does not contend that wife is any more or
less employable today than she was when the decree was entered.
3
To the extent husband contends that the law imposed a duty
upon wife to reduce her support needs by obtaining employment,
rendering her failure to do so over time a material change in
circumstance, his contention is inapposite. Husband bargained
away whatever duty the law imposed upon wife to obtain employment
to reduce her support needs. Husband could have litigated the
issue of wife's employability and pursued judicial enforcement of
the duty he now suggests the law imposes. He did not. Instead,
he chose to enter the PSA, an agreement suggesting by its very
nature a compromise of the parties' interests upon their
separation. Thereafter, the PSA was incorporated into a final
decree of the trial court, and the issue of support became final.
4
Code § 20-99(5) provides that in suits for divorce,
annulment, or affirmation, "[c]osts may be awarded to either
party as equity and justice may require."
6
in the performance of any of the provisions
of this Agreement, the defaulting party will
indemnify the other for all reasonable
expenses and costs, including attorney's
fees, incurred in successfully enforcing the
terms of this Agreement.
Paragraph 9 provides:
Each party shall be free from
interference, authority or control, direct or
indirect, by the other. Neither party shall
molest, harass, annoy or in any way interfere
with the other, and each of the parties
hereto shall have full and complete
independence of action and conduct in all
business and social relations, and the public
and private activities of each of them shall
be entirely free from all restraint,
supervision, control and censure by the
other.
Paragraph 12 provides, in part:
The parties hereto agree to accept, and
do hereby accept, the covenants and
agreements herein contained in full, complete
and final settlement of any and all claims
and demands of every kind, whether the same
be in law or in equity, which either may have
against the other, and the parties do hereby
agree that this agreement contains the entire
undertaking between them and that there are
no oral or written promises, inducements or
agreements whatsoever between them, except as
herein contained.
Paragraph 14 provides:
Each party shall at any time hereafter,
take any and all steps and execute,
acknowledge and deliver to the other party
any and all further instruments and
assurances that may be reasonably required by
the other, his or her heirs, executors,
administrators and assigns, for the purpose
of perfecting a clear title to any property
referred to in this agreement and for the
purpose of giving full force and effect to
the intent of the covenants, conditions and
agreements contained herein. In the event
7
either party fails or refuses to do so, or in
the event of any default on the part of
either party hereto, the costs and expenses
of any litigation or other action of any
nature necessary to compel compliance
herewith, including attorney's fees, shall be
borne by the defaulting party.
Paragraph 18 provides:
No modification or waiver of any of the
terms of this Agreement shall be valid unless
in writing and executed with the same
formality as this Agreement. No waiver of a
breach or default of any clause of this
Agreement shall be deemed to constitute a
waiver of any subsequent breach or default of
the terms hereof. The failure of any party
at any time to insist upon the strict
performance of any of the terms or covenants
of this Agreement shall not be deemed a
waiver of the right to insist upon strict
performance of the same or any other term or
covenant of this Agreement at any time.
The circuit court found that the PSA contained no provision
allowing an award of attorney's fees to the prevailing party in a
dispute arising under its terms. The court interpreted the PSA
to require an award of attorney's fees, under paragraph 11, only
when a party defaulted in his or her performance under the PSA.
Finding that husband had not defaulted in his performance, the
circuit court granted husband's cross-motion for summary
judgment, denying wife's request for attorney's fees.
IV.
Wife does not contend that the court improperly determined
this issue by summary judgment; her contention is simply that the
court erred as a matter of law. We disagree.
Wife alleges that husband breached and defaulted in his
8
performance of the PSA by filing his petition for a modification
of spousal support. She does not dispute that the PSA provided
that husband could petition for a modification of support. She
alleges, however, that husband's petition, not being premised on
a material change in circumstances, was an attempt to impose an
obligation on wife that was not contemplated by the PSA. That
imposition, she contends, was a breach of his performance under
the PSA, entitling her to attorney's fees under paragraph 11.
Specifically, wife alleges that husband breached the "no
interference" provisions of paragraph 9 by "attempt[ing] to
control and direct the activities of [wife] by alleging a duty
that does not exist in the contract." She alleges husband
breached the "mutual releases" provisions of paragraph 12 by "not
accept[ing] the terms of the Agreement as full and complete
compromise and settlement, and attempt[ing] by his Petition to
make claims of additional conditions and duties on [wife]." She
alleges husband breached the "further instruments and assurances"
provisions of paragraph 14 by "fail[ing] to give such assurances
and instead [taking] action to try to change the parties'
contract." Finally, she alleges husband breached the "no
modifications" provisions of paragraph 18 by "alleg[ing] an
Agreement effectively modified by the unexpressed intent of the
parties regarding [wife's] duty to obtain employment, rather than
accepting the provision of the Agreement indicating that no
modification of the Agreement could be made except in writing
9
. . . ."
At length in her brief, wife applies various dictionary
definitions, restatement of contracts principles and the holding
of a Virginia Supreme Court case to establish that defective
performance amounts to a "default" in performance. That
principle, however, is inapposite. Husband's petition for a
modification of support did not affect or effect performance
under the PSA.
The PSA itself entitled husband to petition for a
modification of support. Authorized by the PSA, husband's
petition does not violate any of its terms. Furthermore, to the
extent husband's petition was simply an attempt to impose a duty
on wife not contemplated by the agreement, husband only alleged
the duty; his performance under the agreement never changed.
Indeed, there is no dispute concerning husband's continued
payment of support. Finally, the paragraphs of the PSA upon
which wife relies are inapposite to her claim. Paragraphs 12
and 18 require no performance of any kind. Paragraph 12 provides
that the agreement represents the entire undertaking between the
parties, and paragraph 18 provides that no oral modifications to
the agreement shall be valid. While both provisions may
demonstrate that wife was not bound to seek or obtain employment
under the PSA, neither provision proscribes husband from
suggesting otherwise. Furthermore, husband's petition bears no
relation to the performance required by paragraph 14, viz., that
10
husband provide further instruments and assurances to give full
force and effect to the PSA, or the non-performance required by
paragraph 12, viz., that husband not interfere or control wife.
In short, husband has not defaulted under the PSA and, thus,
the PSA provides no authority for an award of attorney's fees to
wife. Although wife prevailed in this case, the PSA does not
provide for an award of attorney's fees to the prevailing party
in an action arising under the PSA.
Wife's reliance on statutory authority to support her
request for an award of attorney's fees is likewise misplaced.
"Code § 20-109 bars a trial court from `directing the payment of
. . . suit money or counsel fee[s] . . . except in accordance
with th[e] [parties'] . . . contract.'" Sanford v. Sanford, 19
Va. App. 241, 249, 450 S.E.2d 185, 190 (1994). Here, as stated,
the parties contracted not to provide the relief wife now seeks.
For the foregoing reasons, the judgment of the circuit court
is affirmed.
Affirmed.
11