Bazzle v. Bazzle

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia

NANCY JACKSON BAZZLE
OPINION BY
v. Record No. 0851-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 26, 2002
SHELTON WAYNE BAZZLE

FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge

Brian H. Jones (Kaestner, Pitney & Jones,
P.C.; Pitney, Jones & Fantl, P.L.C., on
briefs), for appellant.

Terrence R. Batzli (Ann Brakke Campfield;
Barnes & Batzli, P.C., on brief), for
appellee.

In this appeal, Nancy Jackson Bazzle (wife) contends the

trial court erred in applying the doctrine of merger and

terminating her right to spousal support. Shelton Wayne Bazzle

(husband) presents as an additional question that the trial

court erred in applying the doctrine of laches and refusing him

a refund of his alleged overpayment of the support judgment

obtained by wife. Finding no error, we affirm.

I. BACKGROUND

The parties were married on June 22, 1957 and divorced by a

final decree of divorce on February 21, 1974 in Henrico County

Circuit Court. Prior to the entry of the final decree, the
parties entered into a Property Settlement Agreement (PSA) dated

December 31, 1973. Paragraph 5 of the PSA provides as follows:

(a) Commencing January 1, 1974 and
continuing thereafter on the same day of
each succeeding month, Husband shall pay to
Wife the sum of $1,050.00 per month as
periodic payments of alimony made because of
the family and marital relationship and in
recognition of his general support
obligation, which payments shall terminate
upon Wife's death.

* * * * * * *

(c) If Wife shall not sooner remarry, then
commencing January 1, 1983, the alimony
payments provided for in paragraph (a) above
shall be reduced to $950.00 per month until
January 1, 1985, when they shall be further
reduced to $833.33 per month until the
sooner of Wife's death or her remarriage
subsequent to January 1, 1985.

Paragraph 6 of the PSA provides as follows: "[c]ommencing

January 1, 1975 and adjusted annually on January 1 of each

succeeding year thereafter, Husband shall pay additional support

and alimony to Wife . . . ." Upon entry of the final decree, it

was ordered only that the PSA "be filed with the papers in this

cause." 1 The final decree provided, "[i]t is further ADJUDGED,

1
At that time, Code § 20-109.1 provided in pertinent part:

Any court may affirm, ratify and
incorporate in its decree dissolving a
marriage or decree of divorce . . . any
valid agreement between the parties, or
provisions thereof, concerning the
conditions of the maintenance of the
parties, or either of them . . . . Where
the court affirms, ratifies, and
incorporates in its decree such agreement or

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and ORDERED that the Defendant pay to the Plaintiff the sum of

One Thousand Fifty Dollars ($1,050.00) per month as alimony."

Neither the final decree nor the PSA contained any provision

regarding future modifications. Wife never remarried.

In 1982, husband stopped paying his spousal support. Wife

filed an independent suit at law in Henrico County Circuit Court

alleging anticipatory breach of contract. She requested a

judgment of $429,565, an amount she calculated would satisfy

husband's remaining spousal support obligation. She arrived at

that amount by calculating the value of her spousal support

payments through the end of her life expectancy, thirty-seven

years according to the actuarial tables in effect at that time,

and discounting that amount to its present day value. A default

judgment was awarded her on October 22, 1982 for the total

provision thereof, it shall be deemed for
all purposes to be a term of the decree, and
enforceable in the same manner as any
provision of such decree.

See also Code § 20-109 which provided in pertinent part:

[I]f a stipulation or contract signed by the
party to whom such relief might otherwise be
awarded is filed with the pleadings or
depositions, then no decree or order
directing the payment of alimony, suit
money, or counsel fee shall be entered
except in accordance with that stipulation
. . . .

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amount requested. 2 The judgment was duly docketed in the "lien

docket book at page number 508."

After the entry of the default judgment, husband moved the

trial court to vacate the judgment based on inadequate service

of process. In its January 12, 1984 order (1984 order), the

trial court refused to set aside the judgment, but enjoined wife

from collecting it so long as husband (1) made payments to wife

pursuant to the PSA and (2) maintained a $50,000 letter of

credit to her benefit. Specifically, the 1984 order said:

(b) The said [husband] shall make his
payments of spousal support to [wife]
pursuant to the terms of the written
Property Settlement Agreement between the
parties dated December 31, 1973, which
payments of spousal support shall be due and
payable to [wife] on the first day of each
month. If any such payment has not been
received by [wife] by the eighth day of the
month when due, then counsel for [wife]
shall notify counsel of record for [husband]
of this fact in writing. If thereafter
[wife] or her counsel does not receive the
payment which was due on the first of that
month from [husband] by midnight on the
tenth day next following the delivery of
said written notice to [husband's] counsel
of record, the injunction herein shall be
automatically dissolved at that time without
further hearing, and [wife] shall have the
right to proceed to enforce her judgment
forthwith and without further hearing and
collect as a credit against said judgment
the Fifty Thousand Dollars ($50,000.00)
amount provided under the aforesaid letter

2
If collected in full, it was to be placed in a trust and
distributed in installments over thirty-seven years to wife, and
if wife died or remarried, the remainder would be returned to
husband.

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 of credit in accordance with the verified
notice procedure set forth in (a) above.

[Husband] shall receive credits so long as
the injunction is in effect, and the
judgment shall not run with interest.
[Husband] shall receive credit for all
payments made since the date of the judgment
as spousal support.

In the event [husband] fails to meet all of
the conditions above, then the judgment
shall be for the amount of monies then owing
with interest running from the original date
of the judgment, that is October 22, 1982.

Neither party appealed the 1984 order.

Husband made payments as required with no further court

action. On April 14, 1999, husband's counsel notified wife's

counsel that the judgment had been overpaid and requested it be

released and marked satisfied. Husband's counsel represented

that marking the judgment satisfied "in no way affects

[husband's] ongoing obligation to pay spousal support." Based

on the representation, wife's counsel released the judgment on

April 30, 1999.

On June 14, 1999, husband's counsel notified wife's counsel

that his client would not pay spousal support beyond October,

1999 because husband's company had gone bankrupt. Wife filed a

motion for rule to show cause in the divorce case requesting

that husband be held in contempt for violating an order of the

court. The order to show cause cites as the basis for the rule

both the final decree of divorce and the 1984 order. Husband

filed a separate petition requesting that the trial court order

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a refund because he had overpaid any support required pursuant

to their PSA. He contended that the PSA support requirements

were merged into the default judgment entered at wife's request

on their contract, which was later released as satisfied.

The trial court found that husband was not in contempt of

court because he had made all spousal support payments due.

It is the opinion of this Court that the
effect of the [1984] Order on the [PSA] was
as follows. First, it reduced [husband's]
spousal support obligation due under the
Agreement to $429,565.00 . . . .

Second, the [1984] Order merged [husband's]
spousal support obligation into a final
judgment, thereby eliminating any future
actions for spousal support based upon the
original [PSA].

Third, the [1984] Order incorporated the
payment methodology contained within
paragraph six of the [PSA] entitled
"Additional Support and Alimony." No other
provisions of the [PSA] were incorporated.
The [1984] Order reads in pertinent part,
"[t]he said [husband] shall make his
payments of spousal support to [wife]
pursuant to the terms of the written [PSA]
between the parties dated December 31, 1973
. . . ." As a result, [husband] was
required to make payments on the $429,565.00
judgment as per the calculations set forth
in the [PSA] until satisfied.

* * * * * * *

[Husband's] obligation to continue paying
spousal support to [wife] is terminated as a
result of satisfying the Judgment. A
plaintiff may not reduce an obligation to a
judgment, collect on the judgment in full,
and then double dip by instituting another
action based on the same obligation because
he/she is unhappy with the amount received

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 in satisfaction. To allow such proceeding
is inequitable and against better judgment.
[Husband] cannot be held in contempt for
discontinuing payments of spousal support.

The trial court next found that laches barred husband's request

for a refund of monies paid in excess of the judgment.

[Husband] has known or suspected that he was
making overpayments on the Judgment amount
for some seventeen years, and is just now
seeking to recover those monies. . . . It
would work a grave injustice to require
[wife] to repay [husband] some $125,000.00
living on a fixed income . . . .

II. MERGER AND TERMINATION OF SPOUSAL SUPPORT

Wife argues that the trial court erred in finding that her

suit for anticipatory breach of husband's duties under their PSA

merged his spousal support obligations into the final judgment

and, thus, precluded any future suits for additional spousal

support. She contends that the October 22, 1982 judgment order

(1982 order) awarding her $429,565 for lifetime support was

modified by the later 1984 order enjoining enforcement because

the 1984 order did not say that husband's spousal support
obligation would end upon full payment of the judgment amount.

We disagree.

Initially, we note that the PSA at issue here was "filed

with the papers" in the parties' divorce. It was never

"affirmed, ratified, or incorporated" into the final decree of

divorce and, thus, the trial court was constrained by

Code §§ 20-109.1 and 20-109 to enter no order in contravention of

the agreement. As we said in Hering v. Hering, 33 Va. App. 368,
533 S.E.2d 631 (2000):

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 [i]f the court accepts the agreement, its
decree may merely approve, ratify or affirm
the agreement, in whole or in part, without
incorporating its provisions into the decree
or ordering payment or compliance with its
terms. In that situation, the decree merely
constitutes judicial approval of a private
bilateral contract, and the provisions of
the support agreement do not have the full
force and effect of a court's decree and are
not enforceable by the court's contempt
powers.

Id. at 373, 533 S.E.2d at 633-34 (citations omitted). "Property

settlement agreements are contracts; therefore, we must apply the

same rules of interpretation applicable to contracts generally."

Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985)

(citations omitted). "Since the interpretation of a contract is

a question of law, we are not bound by the trial court's

conclusions on this issue, and we are permitted the same

opportunity as the trial court to consider the contract

language." Garcia v. Enterprise Ford Tractor, Inc., 253 Va. 104,

107, 480 S.E.2d 497, 498-99 (1997).

In the instant case, wife pursued her contractual remedies
for enforcement. Her election to sue for anticipatory breach of
3
the total amount due under their contract quantified husband's

3
An anticipatory breach of contract is
one committed before the time has come when
there is a present duty of performance and is
the outcome of words or acts evincing an
intention to refuse performance in the
future. . . . [T]o constitute such an
"anticipatory breach," it must appear that
the party bound under a contract has
unequivocally refused to perform. . . . This
is so because an anticipatory breach which
will support an action for breach of the
contract must go to the whole consideration
of the contract and must relate to the

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remaining spousal support obligation at $429,565. This amount

was reduced to a judgment at her request and, after full payment,

was marked satisfied. However, we must now decide if wife's

choice of remedy precluded her from further litigation because

any future spousal support obligation was merged into the

judgment.

The law of merger is well settled and applies to

acceleration of contractual remedies. When a cause of action has

been reduced to a judgment, the cause of action is merged into

the judgment and cannot form the basis for future suits between

the parties. In Equity Investors v. West, 245 Va. 87, 425 S.E.2d
803 (1993), a partnership obtained a judgment on six promissory

notes and then sought to docket that judgment against the solvent

general partners. In reviewing the viability of the doctrine of

merger, the Supreme Court quoted Beazley v. Sims, 81 Va. 644, 648

(1886):

"The judgment establishes in the most
conclusive manner, and reduces to the most
authentic form, that which had hitherto been
unsettled. The cause of action thus

essence of the contract, so far as the
complaining party is concerned.

Michie's Jurisprudence Contracts § 76 (2001).

Under the law in Virginia, the
abandonment of a contract will give rise to
an action for anticipatory breach. We said
in Mut. R. Fund Ass'n v. Taylor, 99 Va. 208,
37 S.E. 854 (1901) that: "[W]hen one party
to a contract has entirely abandoned it, or
has absolutely refused to perform it, the
other party may elect to sue on it without
waiting for the time of performance to
arrive."

Supervisors v. Ecology One, 219 Va. 29, 33, 245 S.E.2d 425,
428 (1978) (some internal citations omitted).

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 established and permanently attested, is said
to merge into the judgment establishing it
upon the same principle that a simple
contract merges into a specialty. The cause
of action, though it may be examined to aid
in interpreting the judgment, can never again
become the basis of a suit between the same
parties. It has lost its vitality; it has
expended its force and effect. All its power
to sustain rights and to enforce liabilities
has terminated in the judgment. It is
drowned in the judgment and must henceforth
be regarded as functus officio."

Equity Investors, 245 Va. at 89-90, 425 S.E.2d at 805. See also

Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974)

("Merger occurs when a valid and final personal judgment for

money is entered for plaintiff. His original cause of action is

merged into the judgment and is extinguished. Plaintiff can

maintain a subsequent action only on the judgment and not on the

original cause of action."); Jones v. Morris Plan Bank of
Portsmouth, 168 Va. 284, 291, 191 S.E. 608, 610 (1937) ("If suit

is brought for a part of a claim, a judgment obtained in that

action precludes the plaintiff from bringing a second action for

the residue of the claim, notwithstanding the second form of

action is not identical with the first, or different grounds for

relief are set forth in the suit."); Sands v. Roller, 118 Va.
191, 192-93, 86 S.E. 857, 858 (1915) ("We are of the opinion that

when the judgment was obtained . . . , it merged the entire

contract upon which the suit was brought, and the plaintiff could

not afterwards maintain a suit for another recovery under that

contract.").

We agree with the trial court that wife, having chosen her

remedy and reduced the amount of support owed her to a judgment,

cannot now revive the contract and pursue another cause of

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action. While wife argues that the 1984 order created an

additional obligation to pay support, this position is without

merit. The 1984 order did nothing to the amount of the

underlying, docketed judgment, but simply enjoined certain

enforcement methods if husband timely paid the amounts due under

the PSA. Thus, we hold that the trial court did not err in

finding husband had satisfied his support obligations by paying

in full the amount of the judgment and in ruling that he was not

in contempt.
III. LACHES

Laches is "the neglect or failure to assert a known right or

claim for an unexplained period of time under circumstances

prejudicial to the adverse party." Princess Anne Hills v. Susan

Constant Real Est., 243 Va. 53, 58, 413 S.E.2d 599, 602 (1992).

The burden of proving laches and prejudice is upon the litigant

asserting that defense. Id. See also Stewart v. Lady, 251 Va.

106, 465 S.E.2d 782 (1996).

When a trial court considers the
defense of laches, it does not apply an
absolute rule such as a statute of
limitations, but instead, the court examines
each case in light of the particular
circumstances. Therefore, whether under the
circumstances of a given case a claim is
barred by laches is primarily a decision
resting within the discretion of the trial
court. Absent an abuse of discretion, its
decision will not be disturbed on appeal.

Morris v. Mosby, 227 Va. 517, 521, 317 S.E.2d 493, 496 (1984)

(citations omitted).

Husband contends that the trial court abused its discretion

in finding that laches barred his claim for overpayments made

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after he satisfied the $429,565 judgment. The record supports

the trial court's finding that husband "has known or suspected"

that he was making overpayments for seventeen years and took no

action. Husband addressed the issue of possible overpayments

with his then counsel, Mr. Runkle, but took no action to correct

any possible problem for over sixteen years. Wife relied on and

accepted the payments as proper. To require her to pay back

thousands of dollars after appellee's inaction would be both

prejudicial and inequitable. Finding no error, we affirm the

trial court.

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 IV. Conclusion

For the reasons set forth above, we affirm the judgment of

the trial court.

Affirmed.

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