COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia
SUSAN CONE SCOTT
MEMORANDUM OPINION * BY
v. Record No. 2998-95-2 JUDGE SAM W. COLEMAN III
DECEMBER 3, 1996
FREDERIC W. SCOTT, JR.
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
J. W. Harman, Jr. (Harman & Harman, on
brief), for appellant.
Edward B. Lowry (Michie, Hamlett, Lowry,
Rasmussen & Tweel, P.C., on brief), for
appellee.
Susan Cone Scott (wife) appeals the trial court's dismissal
of her motion for an increase in spousal support. The trial
court held that the provisions of Code § 20-109 and the terms of
the parties' separation agreement that set support precluded the
court from modifying spousal support. Wife contends that the
court misconstrued the provisions of the parties' separation
agreement, which was incorporated into their final divorce
decree, in that the agreement implicitly allows the court to
modify spousal support. Finding no error, we affirm the trial
court's decision.
"Code § 20-109 authorizes the trial court to modify spousal
support and maintenance upon the petition of either party if the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
court determines that there has been a material change in
circumstances that justifies a modification." Pendleton v.
Pendleton, 22 Va. App. 503, 506, 471 S.E.2d 783, 784 (1996).
However, Code § 20-109 also provides that,
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 . . . shall be entered except in
accordance with that stipulation or contract.
This provision "restricts the court's jurisdiction over awarding
[spousal support] to the terms of the contract." McLoughlin v.
McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970).
Similarly, the restriction on a court's authority to set spousal
support applies to petitions to modify, increase, or decrease
spousal support when the parties have a prior agreement as to the
amount of spousal support.
In this case, the parties entered into a separation
agreement on January 3, 1980. The agreement provided:
Based on the present financial resources and
income of each of the parties, the present
needs of Wife and the present cost of living,
the parties agree that Husband shall pay to
Wife, commencing January 1, 1980, as spousal
support the sum of $500.00 per month, on the
first day of each month. Such payments shall
cease upon Wife's remarriage or death, or
upon Husband's death, or upon Wife cohabiting
with a man not her husband for a continuous
period of 90 days or more.
The agreement was incorporated by reference into the May 19, 1980
final divorce decree.
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The agreement also contained, in a separate paragraph, a
release provision which stated that, "[e]xcept as herein
otherwise expressly provided, each party hereby releases the
other from any and all liabilities or obligations, whether of
support or otherwise . . . ."
The wife contends that, because the agreement states that
the amount of spousal support was determined based upon the
parties' "present" resources, the needs of wife, and cost of
living, that the agreement necessarily intended that support
could be modified according to the changing "present" resources,
needs, and cost of living of the parties. We disagree.
In Virginia, property settlement agreements are contracts
subject to the same rules of formation, validity, and
construction as other contracts. Smith v. Smith, 3 Va. App. 510,
513, 351 S.E.2d 593, 595 (1986); Tiffany v. Tiffany, 1 Va. App.
11, 15, 332 S.E.2d 796, 799 (1985). "[W]here 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." Globe Iron Constr. Co. v. First Nat'l Bank
of Boston, 205 Va. 841, 848, 140 S.E.2d 629, 633 (1965).
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
what the written instrument plainly declares.
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Hederick v. Hederick, 3 Va. App. 452, 455-56, 350 S.E.2d 526, 528
(1986) (quoting Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d
396, 398 (1984)). "[W]here there is an express and enforceable
contract in existence which governs the rights of the parties,
the law will not imply a contract in contravention thereof."
Royer v. Board of County Supvrs., 176 Va. 268, 280, 10 S.E.2d
876, 881 (1940) (citation omitted).
The unambiguous express language of the parties' agreement
stated that the amount of spousal support the wife would receive
and the husband would pay would be $500 per month. The agreement
contained no provision allowing for a court to modify the
contractual amount of spousal support or allowing for either
party to petition for such relief. We cannot hold that the
parties, by implication, intended such a provision based upon the
language in this agreement. To do so would render the release
"from any and all liabilities or obligations, whether of support
or otherwise" nugatory and meaningless.
It seems clear to us that the law is well
settled that where parties expressly
contract, under what circumstances an
obligation may arise with reference to a
certain subject-matter, where the same is
entered into without fraud or mutual mistake,
it excludes the possibility of an implied
covenant of a contradictory or different
nature.
Southern Biscuit Co. v. Lloyd, 174 Va. 299, 311-12, 6 S.E.2d 601,
606 (1940) (quoting Johnson v. Iglehart Bros., 95 F.2d 4, 8,
cert. denied, 304 U.S. 585 (1938). We will not construe one
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provision in a contract in such a manner that would render
another provision meaningless, particularly when the obvious
construction of both provisions will give meaning and effect to
each.
That provision in the contract which set spousal support at
$500 per month based on the parties' "present" financial
resources, income, needs, and cost of living merely set forth
those factors upon which the parties relied in arriving at the
amount of support; that provision does not expressly or by
implication provide that the parties may petition for judicial
modification of spousal support based on a change in "present"
circumstances. Had the parties so intended they should have so
provided in the contract and, moreover, they should not have
included a provision that would have been in conflict by
"releas[ing] the other from any and all . . . obligations . . .
of support . . . ."
Wife's reliance upon Blank v. Blank, 10 Va. App. 1, 389
S.E.2d 723 (1990), and Jennings v. Jennings, 12 Va. App. 1187,
409 S.E.2d 8 (1991), is misplaced. Both cases deal with spousal
support that was judicially determined in the first instance
under Code § 20-107.1. Those cases did not involve contractual
spousal support agreed upon by the parties or an agreement
incorporated into the divorce decree. See Jennings, 12 Va. App.
at 1196, 409 S.E.2d at 14 (holding that the language of the
separation agreement required the judge to exercise his
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discretion under Code § 20-107.1 in determining the amount of
spousal support). Those cases are inapposite.
The trial court did not err in finding that it did not have
jurisdiction to alter spousal support under the terms of the
agreement. Accordingly, we affirm the decision of the trial
court.
Affirmed.
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