Langley v. Johnson

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia

LAWRENCE W. LANGLEY
OPINION BY
v. Record No. 1390-97-3 JUDGE JAMES W. BENTON, JR.
MAY 12, 1998
ANNE P. JOHNSON

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
H. Gregory Campbell, Jr., for appellant.

Margaret E. Stone (Edwin C. Stone; Stone,
Harrison, Turk & Showalter, on brief), for
appellee.

Lawrence W. Langley appeals from the trial judge's ruling

that payments made under a settlement agreement to his former

wife, Anne P. Johnson, were spousal support payments that

survived the wife's remarriage. We hold that the provisions of

Code §§ 20-109 and 20-109.1 acted to terminate the husband's

spousal support obligation upon the wife's remarriage, and we

reverse the trial judge's order.

I.

On August 26, 1991, the parties were divorced by a decree

that affirmed, ratified, and incorporated by reference the

parties' settlement agreement. Under the heading "Spousal

Support and Separate Maintenance," Section 3.02 of the agreement

provides that the husband "agrees to pay [the wife] an amount

equal to $275.00 cash, per week, until her death." The wife

remarried on December 29, 1991. The husband continued his
payments for almost four years after the wife's remarriage. When

he ceased making his payments in 1995, the wife filed a motion

for judgment seeking enforcement of the payment obligation.

The trial judge found that the language in the separation

agreement was "plain, simple, clear and unambiguous" and

obligated the husband to pay spousal support until the wife's

death. Noting that "[r]emarriage can only occur prior to death,"

the trial judge ruled that "there is no speculation as to the

termination of support" and that Code § 20-109.1 "does not apply

to the agreement." The husband appeals from the trial judge's

ruling that the wife's remarriage did not terminate the husband's

spousal support obligation.
II.

We first address the wife's contention that the weekly

payments were not spousal support but, rather, were in the nature

of a property distribution. The wife argues that although the

husband's obligation to make weekly payments is contained under

the heading "Spousal Support and Maintenance," the agreement

provides that "[p]aragraph titles or headings . . . are inserted

as a matter of convenience only and for reference and in no way

define or describe the scope of this Agreement or any provision

thereof." Because no other language in the agreement describes

the weekly payments as spousal support, she argues that the

payments are not "spousal support." Thus, she argues Code

§§ 20-109 and 20-109.1 do not apply.

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 "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). Where the agreement is plain and

unambiguous in its terms, the rights of the parties will be

determined from the terms of the agreement. See Harris v.

Woodrum, 3 Va. App. 428, 432, 350 S.E.2d 667, 669 (1986). "It is

the court's responsibility to determine the intent of the parties

from the language they employ." Bender-Miller Co. v. Thomwood

Farms, Inc., 211 Va. 585, 588, 179 S.E.2d 636, 639 (1971).

Three distinct obligations are specified under the heading

"Spousal Support and Separate Maintenance": the parties agreed to

share equally the proceeds of all certificates of deposit; the

husband agreed to make weekly payments to the wife; and the

husband agreed to maintain a life insurance policy for the wife's

benefit. Although the parties' obligation to share equally the

proceeds of the certificates of deposit may have characteristics

of a property division, the weekly payments do not. The

agreement does not relate the weekly payments to any property

interest of the parties and contains no indication that the

weekly payments were intended to adjust the parties' rights and
1
interest in their property.
1
Under the heading, "Equitable Distribution of Real and
Personal Property," the agreement contains numerous provisions
that divide the parties' real and personal property. That part
of the agreement also contains provisions apportioning the
parties' debts.

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 The agreement provides that the weekly payments are to be

annually adjusted by the consumer price index. That type of

adjustment suggests the payments were made to provide for the

wife's necessities and staples of life. Likewise, the

stipulation that the weekly payments are to terminate upon the

wife's death implies that the payments bear upon the wife's

personal circumstances. We conclude, therefore, that these

characteristics denote periodic payments in the traditional

nature of spousal support and maintenance. See Moseley v.

Moseley, 19 Va. App. 192, 196, 450 S.E.2d 161, 164 (1994)

(whether a payment is spousal support and maintenance or a

property distribution is determined by the function that payment

is intended to serve). See also In re Zuccarell, 181 B.R. 42,

44-45 (Bankr. N.D. Ohio 1995) (recognizing that, typically, a

property division is not affected by a change in the personal

circumstances of the recipient spouse); In re Ackley, 186 B.R.

1005, 1010 (Bankr. N.D. Ga. 1994) (noting that the structure of a

provision - whether payment is lump sum or periodic, method of

payment, terms of payment, amount of payment, whether payment is

modifiable, and whether payment is subject to contingencies - is

an important element in determining whether the provision is one

for support or a property division); In re Edwards, 162 B.R. 83,
85 (Bankr. D. Conn. 1993) (holding that an obligation is in the

nature of alimony "when it is intended to provide support for the

spouse, rather than an equalization of property rights"); In re

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Jensen, 17 B.R. 537, 540 (Bankr. W.D. Mo. 1982) (noting that

provisions for payment of expenditures for necessities and

staples of life reflect a support function).

From a plain reading of the agreement, we conclude that the

parties intended this obligation to be one for spousal support

and maintenance. Even if we could conclude that the terms of the

agreement are ambiguous, the evidence proves that the parties

treated the payments as spousal support. The correspondence

between the parties referred to the obligation as "alimony." On

his tax returns, the husband also treated the payments as spousal

support. Accordingly, we analyze the effect of Code §§ 20-109

and 20-109.1 upon the spousal support obligation contained in the

agreement.
III.

Relying upon Miller v. Hawkins, 14 Va. App. 192, 415 S.E.2d

861 (1992); Radford v. Radford, 16 Va. App. 812, 433 S.E.2d 35

(1993); MacNelly v. MacNelly, 17 Va. App. 427, 437 S.E.2d 582

(1993); and Gayler v. Gayler, 20 Va. App. 83, 455 S.E.2d 278
(1995), the husband contends that his support obligation

terminated by operation of Code §§ 20-109 and 20-109.1 because of

the absence of express language in the agreement stating that the

spousal support would survive the wife's remarriage. We agree.

When this case was decided, Code § 20-109 denoted the trial

judge's power to award spousal support and to change existing

awards, and it further provided, in pertinent part, that "[u]pon

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the death or remarriage of the spouse receiving support, spousal

support shall terminate unless otherwise provided by stipulation

or contract." (Emphasis added). Effecting the same policy, Code

§ 20-109.1 provides, in relevant part, as follows:
Where the court affirms, ratifies and
incorporates by reference in its decree such
agreement or 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. The provisions
of this section shall apply to any decree
hereinbefore or hereinafter entered
affirming, ratifying and incorporating an
agreement as provided herein. Upon the death
or remarriage of the spouse receiving
support, spousal support shall terminate
unless otherwise provided by stipulation or
contract.

(Emphasis added).

In Miller v. Hawkins, 14 Va. App. 192, 415 S.E.2d 861

(1992), we considered the following question: "[i]f spousal

support payments are to continue after remarriage of the

recipient, must the agreement or decree include specific language

disclosing that to be the intent of the parties?" Id. at 196,

415 S.E.2d at 864. The agreement contained the husband's promise

to pay the wife spousal support in certain amounts and at
2
designated intervals. The wife remarried, and the husband
2
The provision at issue in Miller was the following:

Husband agrees to pay Wife a reasonable
sum for spousal support. Until such time as
the child of the parties shall attain the age
of 18 years or graduates from high school,
whichever shall last occur, Husband agrees to
pay Wife as spousal support the sum of
$100.00 per week. Thereafter, Husband agrees

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discontinued payments. In reversing the trial judge's award of

spousal support arrearages in favor of the wife, we noted the

following:
While no Virginia appellate court has decided
whether or what specifically is required [to
avoid the termination provisions of Code
§§ 20-109 and 20-109.1], . . . [w]e adopt the
views expressed in several opinions of
appellate courts in sister states and hold
that the agreement must contain clear and
express language evincing the parties' intent
that spousal support will continue after
remarriage; otherwise, remarriage terminates
the obligation.
The public policy clearly declared by Code
§§ 20-109 and 20-109.1 is that spousal
support does not survive the recipient's
remarriage. To create an exception to that
policy, the agreement must be equally clear.
If the parties intended that spousal support
would continue after remarriage, they could
have included such a requirement in the
agreement. We do not construe the language
contained in the agreement before us to
establish an intent that husband was
obligated to continue spousal support to wife
after her remarriage.

Id. at 195-97, 415 S.E.2d at 863-64 (footnote omitted) (emphasis

to pay Wife the sum of $200.00 per week as
spousal support until the child of the
parties attains the age of 23 years or
completes 4 years of college education,
whichever event shall first occur; provided,
however, that in the event Wife should pay in
full the first lien deed of trust
indebtedness owed against the above-described
real estate prior to her re-marriage, then
the weekly amount to be paid by Husband to
Wife as spousal support shall be
re-negotiated or set by the Court if the
parties cannot agree.

14 Va. App. at 194, 415 S.E.2d at 862.

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added).

In Radford v. Radford, 16 Va. App. 812, 813, 433 S.E.2d 35,

36 (1993), the agreement provided that "the husband shall pay

unto the wife the sum of $200.00 per month for a period of 5

years." Reiterating the public policy discussed in Miller, we

held as follows:
[S]pousal support provided for in an
agreement terminates upon the remarriage or
death of the person to whom the support is
payable, unless the agreement expressly
provides for its continuation. [The language
of Code §§ 20-109 and 20-109.1] contemplates
an expressed, not implied, provision that
support shall not terminate upon death or
remarriage. By resolving ambiguity, Code
§ 20-109 reduces litigation. To permit its
mandate to be overcome by implication would
introduce ambiguity, encourage litigation
and, thereby, undermine the statute's
purpose.

Id. Because the agreement "contained no express provision for

continuation upon the death or remarriage of the spouse receiving

support," we ruled that "the spousal support terminated upon the

wife's remarriage." Id. at 814, 433 S.E.2d at 37.

The case we decide today is most similar to MacNelly v.
MacNelly, 17 Va. App. 427, 437 S.E.2d 582 (1993), where we noted

that the "issue in this case is the application of that statute

to the terms of a property settlement agreement which stated

expressly that the death of either party would terminate the

obligation but did not mention the effect of the wife's

remarriage." Id. at 429, 437 S.E.2d at 583-84. The agreement in

MacNelly provided that the husband would make monthly payments to

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the wife for seven years and that "[i]n the event the husband or

wife dies before February 1, 1996, then the obligation for

support and maintenance by the husband to the wife shall cease." 3

Id. at 428, 437 S.E.2d at 583. The wife argued that "the

inclusion of a provision concerning termination of the obligation

upon death of either party, coupled with the absence of reference

to the effect of remarriage, shows the parties' intent to avoid

the statute." Id. at 430, 437 S.E.2d at 584. We ruled, however,

that "in order to accomplish the stated objective of the statute

to resolve ambiguity and thereby reduce litigation, any attempt

to abrogate the effect of the statute requires express language

either citing the statute or expressly stating that remarriage

does not terminate the obligation." Id.

As in MacNelly, the agreement in this case provides for the

eventuality of the recipient spouse's death and fails to mention
3
The entire provision read as follows:

The husband agrees to pay wife for her
support and maintenance SEVEN THOUSAND
DOLLARS ($7,000) in cash per month; the first
payment is to be made on the first of
February 1989, and the payments shall
continue on the first day of each and every
month thereafter until the first day of
February 1996, at which time support and
maintenance to the wife shall cease with that
last payment. These sums are taxable as
income to the wife and deductible by the
husband. In the event that the husband or
wife dies before February 1, 1996, then the
obligation for support and maintenance by the
husband to the wife shall cease.
MacNelly, 17 Va. App. at 428, 437 S.E.2d at 583.

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the effect of remarriage. The parties' agreement merely states

that the husband shall pay the wife "an amount equal to $275.00

cash, per week, until her death." The rulings in Radford and

MacNelly could not be clearer. The absence of express language

stating that remarriage will not terminate the obligation

mandates the conclusion that spousal support terminates upon

remarriage by operation of the statutes. See Code §§ 20-109,

20-109.1.
The wife argues, however, that the agreement in this case is

comparable to the agreement in Gayler v. Gayler, 20 Va. App. 83,

455 S.E.2d 278 (1995). There, the agreement provided that "the

payments [of spousal support] . . . shall terminate upon the

Wife's remarriage or death," and it was modified by an addendum

stating that "the payments . . . shall terminate only upon the

Wife's death." Id. at 85, 455 S.E.2d at 279. We held "that the

addendum's excision of the reference to remarriage and the

addition of the word 'only' evince the parties' intent that

spousal support would survive wife's remarriage." Id. at 86, 455

S.E.2d at 280. However, in a footnote to that holding, we made a

significant disclosure:
The use of the term "only" by the parties is
alone not determinative of the issue. Absent
the reference to the effect of remarriage in
the original agreement, the language of the
addendum standing alone would not be
sufficient to evince an intent of the parties
to avoid the operation of Code §§ 20-109 and
20-109.1.

Id. at 86 n.2, 285 S.E.2d at 280 n.2. Thus, Gayler turned on the

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fact that the addendum's alteration of the original support

provisions was a "critical change in the original agreement,"

which necessarily evinced in a clear and express fashion the

parties' intent that the support would continue after remarriage.

Id. at 86-87, 455 S.E.2d at 280.

In the agreement that we review in this appeal, no similar

"critical change" clearly evinces the parties' intent to avoid

operation of the statutes. Indeed, the language of the parties'

agreement is virtually identical to "the language of the [Gayler]
addendum standing alone [which] would not be sufficient to evince

an intent of the parties to avoid the operation of Code §§ 20-109

and 20-109.1." 20 Va. App. at 86 n.2, 285 S.E.2d at 280 n.2. We

reiterate our reasoning in Radford that the statutory "language

contemplates an expressed, not implied, provision that support

shall not terminate upon death or remarriage" and that "[t]o

permit its mandate to be overcome by implication would introduce

ambiguity, encourage litigation and, thereby, undermine the

statute's purpose." 16 Va. App. at 813, 433 S.E.2d at 36.

IV.

Finally, the wife argues that regardless of this Court's

decisions, the Supreme Court's decision of Wells v. Weston, 229
Va. 72, 326 S.E.2d 672 (1985), governs this case and mandates

affirmance of the trial judge's order. We disagree because Wells

is not germane to the issue in this case.

As in this case, Wells involved a settlement agreement that

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became part of the divorce decree. The spousal support provision

stated that "[h]usband shall pay to Wife the sum of $500.00 per

month as alimony so long as Wife shall live." 229 Va. at 73-74,

326 S.E.2d at 673. After the wife remarried, the husband

discontinued payments. The wife then filed a bill of complaint

seeking specific performance of the spousal support obligation.

Id. at 74, 326 S.E.2d at 673. The husband argued at trial that

the attorney who drafted the agreement represented both parties

and told the husband the support provision was a "routine"

provision commonly used in property settlement agreements to

protect the wife. The husband also argued that because of this

advice from the attorney, the husband believed the clause would

not bind him to pay the wife after she remarried. Id. at 75, 326

S.E.2d at 674.

The trial judge found that although the attorney who drafted

the agreement represented the wife, the attorney was a business

acquaintance of the husband and advised the husband concerning

the spousal support provision. Finding the husband's testimony

more credible, the trial judge ruled that the attorney's conduct

had the appearance of impropriety. The trial judge also ruled

that the agreement was void for lack of mutuality and vacated the

spousal support provision. Id. at 74-75, 326 S.E.2d at 674.

Noting that the husband never disclosed his interpretation

of the agreement to the attorney or the wife, the Supreme Court

ruled that the husband's unexpressed mental reservations were

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irrelevant. See id. at 78-79, 326 S.E.2d at 676. The Court

ruled that the husband had read the agreement and "was fully

capable of understanding the language used . . . [because there]

was nothing technical, obscure, or ambiguous in the wording of

the agreement and the decree." Id. at 79, 326 S.E.2d at 677.

Based on these rulings, the Court held that the trial judge erred

in finding a lack of mutuality. Id. However, the Court did not

address either Code § 20-109 or Code § 20-109.1, and the Court

gave no indication that the parties relied upon these statutes.

Accordingly, we conclude that Wells provides no guidance in
interpreting the statutes.

V.

In summary, the versions of the statutes in effect when this

case was decided contained the following language: "Upon the

death or remarriage of the spouse receiving support, spousal

support shall terminate unless otherwise provided by stipulation

or contract." Code §§ 20-109 and 20-109.1. When the legislature

amended both statutes in 1987, it deleted the provision requiring

the parties to obtain a judicial order to terminate spousal

support upon the remarriage or death of the spouse receiving

spousal support. See 1987 Va. Acts, ch. 424, 694.

We have consistently ruled that the statutes declare a clear

public policy that spousal support will not survive the recipient

spouse's remarriage. See Miller, 14 Va. App. at 197, 415 S.E.2d

at 864. The statutes were intended to resolve ambiguity and to

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enable parties to govern themselves by clear rules without the

necessity of seeking judicial intervention. See Radford, 16 Va.

App. at 813, 433 S.E.2d at 36. To give effect to that policy, we

have held that the statutory "language contemplates an expressed,

not implied, provision [in agreements] that [spousal] support

shall not terminate upon death or remarriage." Id. We will not

negate the statutory policy "by inferring the intent of the

parties." Id. at 814, 433 S.E.2d at 36.
Because the language of the agreement in this case failed

expressly to state that the husband's support obligation would

not terminate upon the wife's remarriage, the trial judge erred

by inferring from the absence of express language an intent that

support payments would continue. Accordingly, we reverse the

order.

Reversed.

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