Shoup v. Shoup

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia

HEIDI S. SHOUP
OPINION BY
v. Record No. 0631-99-4 JUDGE JAMES W. BENTON, JR.
FEBRUARY 29, 2000
FRANCIS E. SHOUP

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge

John E. Byrnes (Condo & Masterman, P.C., on
brief), for appellant.

David M. Levy (Surovell, Jackson, Colten &
Dugan, P.C., on brief), for appellee.

This appeal arises from the trial judge's order construing

the parties' modification agreement and property settlement

agreement, both of which were incorporated into prior decrees of

the circuit court. Heidi S. Shoup contends the trial judge erred

(1) by finding that the modification agreement was ambiguous, (2)

by considering parol evidence of the person who prepared the

modification agreement, (3) in determining the effect of the

modification agreement, and (4) in granting affirmative relief to

Francis E. Shoup, her former husband, when he had sought only

contempt sanctions.

I.

The parties were divorced in 1994 by a final decree of

divorce, which "affirmed, ratified, and incorporated" the parties'
property settlement agreement. Section 12 of the agreement

contains the parties' commitment to sell the marital residence and

includes a "method of calculation" for determining each party's

respective share of the proceeds from the sale of the residence.

Referring to the issue of taxable gain and stating the parties'

"intent as to how the proceeds of the house shall be divided,"

Section 12 of the agreement provides an example to demonstrate the

parties' intent. The example uses an assumed sales price of

$475,000 and states that the "assumptions themselves shall not be

construed as binding, but the method of calculation set forth in

the example shall be binding upon both parties."

Two and one-half years after their divorce, the parties

entered into an agreement to modify Section 12 of the property

settlement agreement. That modification agreement was "affirmed,

ratified, and incorporated" into a decree of the court. The

husband later filed a petition for a rule to show cause, in which

he alleged the wife was in contempt for failing to comply with the

provisions of the modification agreement. The husband sought an

order compelling her to comply and requested a monetary judgment

and other relief. In her opposition to the petition, the wife

asserted that parol evidence was not admissible and that the trial

judge could not re-write the modification agreement.

Following a hearing on the petition, a trial judge ruled that

the modification agreement was ambiguous. At a later hearing, the

husband offered parol evidence concerning the parties' intentions

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in drafting the modification. Based upon the ore tenus evidence,

the trial judge ruled that the wife was not in contempt, that the

modification agreement was ambiguous regarding the sales price of

the residence, that the modification agreement changed from

non-binding to binding the sales price assumption of $475,000 used

in the example contained in Section 12 of the agreement, and that

pursuant to the modification agreement the wife owed the husband

$46,154 plus interest at six percent from January 7, 1997. This

appeal followed.

II.

"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). In our review of the trial judge's

decision, we are guided by the following principles:

If the terms of the parties' agreement are
contained in a clear explicit writing, that
writing is the sole memorial of the contract
and the sole evidence of the agreement. In
that event, . . . parol evidence . . . could
not be used to explain the written
contractual terms.

Conversely, the rule excluding parol
evidence has no application where the
writing on its face is ambiguous, vague, or
indefinite. In such a case, the proper
construction of the contract is an issue for
the trier of fact and the court should
receive extrinsic evidence to ascertain the
intention of the parties and to establish
the real contract between them.

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Cascades North Venture v. PRC Inc., 249 Va. 574, 579, 457 S.E.2d

370, 373 (1995) (citation omitted). "The question whether a

writing is ambiguous is one of law, not of fact." Tuomala v.

Regent University, 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996).

The wife argues that the trial judge erred in ruling that

the modification agreement was ambiguous regarding the sales

price. She contends that the parties never agreed to a sales

price, that a price was not necessary, and that fixing the price

was her sole decision.

"An ambiguity exists when language is of doubtful import,

admits of being understood in more than one way, admits of two

or more meanings, or refers to two or more things at the same

time." Allen v. Green, 229 Va. 588, 592, 331 S.E.2d 472, 475

(1985). "It is elementary that where the terms of a contract

are thus susceptible of more than one interpretation, or an

ambiguity exists, or the extent and object of the contract

cannot be ascertained from the language employed, 'parol

evidence may be introduced to show what was in the minds of the

parties at the time of the making of the contract and to

determine the object on which it was designed to operate.'"

Young v. Schriner, 190 Va. 374, 379, 57 S.E.2d 33, 35 (1950).

In Section 12 of the property settlement agreement, the

parties agreed to sell the marital residence and committed to

agree upon a sales price or submit that issue to binding

arbitration. They also used a non-binding assumption of

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$475,000 for a sales price as an example to demonstrate a method

of calculating the distribution of the proceeds from the sale.

The parties "negotiated [the modification agreement] . . .

freely and voluntarily" with the assistance of an attorney they

selected. In the modification agreement, the parties specified

several concerns flowing from the fact that the "residence has

not sold" and "recognize[d] that the provisions of Section 12

need to be amended to reflect their agreement to delay the sale

of the marital residence." In so doing, the parties then

provided that the husband would be paid "the proceeds

distributable to the Husband pursuant to Section 12" upon the

earlier occurrence of three events, one of which was "three

years from [January 7, 1997,] the date of this [modification]

Agreement." The modification agreement also fixed as a basis

for determining sales expenses and capital gains the precise

figures used in the example in Section 12 of the property

settlement agreement.

The modification agreement, therefore, contemplated a

payment of proceeds to the husband if the residence had not sold

three years from the date of the modification agreement. In

addition, it contained a method of fixing some of the proceeds

payable to the husband based upon the expenses that would be

incurred if the sales price was $475,000. In view of those

circumstances, the trial judge did not err in ruling that when

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viewed together with Section 12, the modification agreement

created an ambiguity regarding the sales price of the residence.

III.

"When the language of a contract is ambiguous, parol

evidence is admissible, not to contradict or vary contract

terms, but to establish the real contract between the parties."

Tuomala, 252 Va. at 374, 477 S.E.2d at 505. Thus, we hold that

the trial judge did not err in considering evidence regarding

the parties' intention as expressed in the modification

agreement.

The evidence proved that the parties employed to draft the

modification agreement the attorney whom they had jointly

retained for tax advice during their marriage. That attorney

"functioned as their accountant, and prepared their tax returns

from that time until current." The attorney testified that both

parties provided him the information and concepts necessary to

prepare the modification agreement. He testified that he went

"back and forth [with] the parties as to the dollars and cents

involved" and that the parties intended that $475,000 be the

sales price. Consequently, the figures he used in the

modification agreement were based upon a sales price of

$475,000. He further testified that the wife specifically asked

about "the most [she would] have to pay [the husband] if [they]

sold the house is 475." He testified that he informed her that

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the modification agreement provided the amounts to be paid based

upon a sale of $475,000.

In view of this evidence, we hold that the record amply

supports the trial judge's ruling that the parties intended that

the sales price would be $475,000.

IV.

Citing Wilson v. Collins, 27 Va. App. 411, 424, 499 S.E.2d

560, 566 (1998), and Winn v. Winn, 218 Va. 8, 10, 235 S.E.2d

307, 309 (1977), the wife argues that when the trial judge ruled

she was not in contempt, the trial judge lacked the authority to

grant any relief to the husband. The cases cited by the wife do

not support her asserted proposition. Neither Winn nor Wilson

holds that the trial judge lacks authority to enforce an

agreement in the absence of a finding of contempt.

Furthermore, both the property settlement agreement and the

modification agreement were incorporated into decrees of the

court. See Code § 20-109.1 (authorizing the trial judge to

"incorporate by reference in its decree dissolving a marriage or

decree of divorce . . . or by a separate decree prior to or

subsequent to such decree, any valid agreement between the

parties"). Upon incorporation, the property settlement and

modification agreements "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." Id.; see also Mayers v. Mayers, 15

Va. App. 587, 592, 425 S.E.2d 808, 811 (1993) (holding "that the

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trial [judge] did not err in ordering the sale of the marital

residence following the incorporation of the property settlement

agreement into the final decree of divorce"); McCaw v. McCaw, 12

Va. App. 264, 267, 403 S.E.2d 8, 9 (1991) (holding "that the

trial [judge] may enforce by . . . contempt powers the terms

incorporated into the divorce decree for the benefit of the

parties' child"). Thus, we hold that the trial judge had the

authority to enforce the personal obligations of the parties

created by the agreements, which were incorporated into the

court's decrees.

Accordingly, we affirm the decree.

Affirmed.

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