White v. White

COLEMAN, Judge,

dissenting.

The majority concludes, in effect, that the provision in the July 15, 1991 final divorce decree which “ratif[ied], confirm[ed], approve[d], and incorporated ... the Agreement made by the defendant dated May 1, 1991 ... with respect to maintenance and support” is res judicata on the issue of whether the agreement and decree incorporating' it “constitutes a lump sum award to [wife] ... [of] a certain sum of $30,000.00 payable in installments.” Thus, the majority holds that the defendant is barred from challenging on appeal the trial court’s finding, which was essential to the contempt citation, that the agreement and decree constituted a $30,000 lump sum award husband was required to pay to the wife in 120 installments. I respectfully disagree with the majority.

The 1991 final divorce decree did nothing more than approve the agreement, incorporate it into the decree so that it could be enforced as a court order, and declare that it was *304“with respect to maintenance and support,” all as authorized by Code § 20-109.1.1 The husband did not then, and does not now, contest those findings. He does not dispute that he agreed to pay the mortgage on the house as part of or in lieu of an obligation to pay spousal support or maintenance. Moreover, contrary to the majority’s assertions, the husband was not aggrieved by any ruling in 1991 which adjudicates the issue he now appeals. The 1991 decree did not construe the agreement and hold that it “constitutes a lump sum award to [wife] ... [of] a certain sum of $30,000.00,” which is the dispositive issue underlying this appeal. It was the November 27, 1995 contempt decree which construed the agreement and held, for the first time, that the husband had agreed to a $30,000 lump sum award of spousal support payable to the wife in installments.2 It is the 1995 decree from which the husband appeals. Accordingly, the fact that Rule 5A:6 and Code § 8.01-675.3 may bar the husband from contesting the 1991 divorce decree, as the majority holds, is of no consequence. The husband timely appealed the 1995 decree. Thus, in my opinion, we must address the merits of the appeal *305and decide whether the trial court in the 1995 decree correctly construed the agreement as incorporated in the final divorce decree to require the husband to pay the wife a lump sum of $30,000 payable in 120 monthly installments.

In my opinion, the trial court erred in construing the agreement and in holding the appellant in contempt. The terms of the contract are clear and unambiguous. Therefore, I would reverse the ruling of the trial court, find that the husband is not in contempt of the court’s order, and remand the case to the trial court to vacate the contempt citation.

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). Code § 20-109.1 provides that a court

may affirm, ratify and incorporate by reference in its decree dissolving a marriage or decree of divorce whether from the bond of marriage or from bed and board ... any valid agreement between the parties ... concerning the condition of the maintenance of the parties ... or establishing or imposing any other condition or consideration, monetary or nonmonetary.

Code § 20-109 provides:

if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed ... no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract.

Thus, whether we characterize the agreement as being for “maintenance and support,” or in lieu of maintenance or support, or whether it establishes or imposes a monetary condition or consideration between the parties, the agreement must be strictly construed and enforced according to its terms.

*306A 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.” A contract is not deemed ambiguous merely because the parties disagree as to the meaning of the language they used to express their agreement. Because the question whether a contract is ambiguous is one of law, this Court is not bound by the trial court’s construction.... [Contracts must be construed as written.

Ross v. Craw, 231 Va. 206, 212-13, 343 S.E.2d 312, 316 (1986) (citations omitted).

Because the contract is clear and unambiguous, “[w]e are not at liberty to search for the meaning of the provisions beyond the pertinent instrument itself.” Smith, 3 Va.App. at 514, 351 S.E.2d at 596. Moreover, “[a] court is not at liberty to rewrite a contract simply because the contract may appear to reach an unfair result,” Kaufman v. Kaufman, 7 Va.App. 488, 501, 375 S.E.2d 374, 381 (1988), nor do we “rewrite contracts to insert provisions that have been omitted by the parties.” Jones v. Harrison, 250 Va. 64, 68, 458 S.E.2d 766, 769 (1995); see Westbury Coal Mining Partnership v. J.S. & K. Coal Corp., 233 Va. 226, 229, 355 S.E.2d 571, 572-73 (1987); Lipps v. First Am. Serv. Corp., 223 Va. 131, 139, 286 S.E.2d 215, 220 (1982).

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.

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)). On appeal, where the only issue is the construction of the terms of the contract, the meaning and *307effect of the contract are questions of law which can readily be ascertained by this Court. Fry v. Schwarting, 4 Va.App. 173, 180, 355 S.E.2d 342, 346 (1987).

The terms of the agreement in question are clear and unambiguous. The husband agreed to pay the $30,000 mortgage on the house located at 265 Ash Drive in Christiansburg to First Virginia Bank in 120 monthly installments. Regardless of whether the contract is termed or characterized as an agreement to pay “spousal support” because it provided a pecuniary benefit to the wife, the agreement must be construed and enforced according to its express terms. The agreement expressly provided that the husband would make payments to the First Virginia Bank; it contained no provision for the husband to make payments to the wife, as the trial court has determined. The trial court was not at liberty to reform or rewrite the contract to provide that payments were to be made to the wife rather than to the bank.

When the wife sold the house and paid the balance on the mortgage from the proceeds, the indebtedness secured by the mortgage was extinguished. The agreement contains no provision requiring the husband to make monthly payments to the wife if the mortgage was paid by the wife, or if the mortgage indebtedness was extinguished by some other means, such as casualty or credit life insurance. Because the debt secured by the mortgage to the bank has been paid, the husband’s contractual obligation to continue the mortgage payments to the bank has ended. This result is not altered simply because the wife voluntarily paid the debt which the husband had agreed to assume.

Thus, because the agreement contains no provision that requires the husband to make payments to the wife and because we are not at liberty to create such a provision, I would reverse the trial court’s decision and remand the case for the trial court to vacate the contempt citation.

. The provision in the July 15, 1991 divorce decree that the majority relies upon states as follows:

that subsequent to the separation of the parties hereto, the defendant entered into an agreement dated May 1, 1991, with respect to maintenance and support, which agreement was attached to the bill of complaint in this cause as Exhibit "A” and filed with the pleadings herein; and that defendant has not objected thereto; it is therefore
* * * * * * *
ADJUDGED, ORDERED and DECREED that the Court doth ratify, confirm, approve and incorporate into this decree by reference thereto the Agreement made by the defendant dated May 1, 1991.

. The pertinent provision of the 1995 contempt decree provided as follows:

By [decree dated] July 15, 1991, the Court construed the agreement as an obligation of Spousal Support.
The Court on July 15, 1991 having made this determination, must now decide in light of the current dispute between the parties, the characterization of said support obligation. From the evidence presented herein, the Court finds as follows:
1. The agreement previously ratified and confirmed constitutes a lump sum award to the complainant be a certain sum of $30,000.00 payable in installments....