Andrew Thomas McGarry v. Beverly Brandon McGarry

• Court: Court of Appeals of Virginia
• Decided: December 17, 2002
• Docket: 1072024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Agee Argued at Alexandria, Virginia

ANDREW THOMAS McGARRY MEMORANDUM OPINION ∗ BY v. Record No. 1072-02-4 JUDGE ROSEMARIE ANNUNZIATA DECEMBER 17, 2002 BEVERLY BRANDON McGARRY

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Leroy F. Millette, Jr., Judge

Katherine M. Fogarty (James R. Kearney; Miller, Kearney, Geschickter, Joshi & Fogarty, L.L.P., on brief), for appellant.

Betty Moore Sandler (Nichols, Bergere, Zauzig & Sandler, P.C., on brief), for appellee.

Andrew T. McGarry ("father") contends on appeal that the

trial court erred in finding he failed to comply with the child

support provisions of a Separation and Property Settlement

Agreement ("PSA" or "agreement") he entered with his former

spouse, Beverly B. McGarry ("mother"). For the reasons that

follow, we affirm.

On appeal, we view the evidence in the light most favorable

to mother, the party prevailing below, together with all

reasonable inferences that may be drawn. See Richardson v.

∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. Richardson, 30 Va. App. 341, 349, 516 S.E.2d 726, 730 (1999).

The parties were married on June 3, 1977. One child, Shannon

Brandon McGarry, was born of the marriage on December 23, 1982.

On December 17, 1984, the parties entered into a PSA. The

agreement required father to provide child support according to

the following terms:

6. FAMILY SUPPORT AND MAINTENANCE (a) The Husband shall pay to the wife, for her alimony support and maintenance, and the support and maintenance of the said minor child, the total monthly sum of ONE THOUSAND FOUR HUNDRED DOLLARS ($1,400), subject to reductions of:

(1) FOUR HUNDRED DOLLARS ($400) when the child marries, dies, reaches eighteen (18) years of age, enters active duty military service or is otherwise emancipated, whichever shall first occur; provided, however, that such reduction shall not occur until the child reaches twenty-three (23) years of age for so long as the child is a full-time student in an accredited college or university and pursuing a bachelor's degree, without abatement for academic vacations.

The parties divorced on November 12, 1986. Shannon McGarry

turned eighteen years of age on December 23, 2000, while a senior

at Hylton High School; she was not enrolled full-time in an

accredited college or university at that time. It is undisputed

that, when she graduated from high school in June 2001, Shannon

enrolled immediately as a full-time student at Marshall

University.

Father made timely support payments in accordance with the

terms of the agreement until January 2001. He reduced his

payments by four hundred dollars ($400) thereafter. Mother filed

- 2 - a motion to establish arrearages and, on February 5, 2002, the

trial court ordered father to pay $5,392 in child support

arrears. He appeals from that order, 1 arguing that, under the

plain language of the agreement, the parties intended that child

support payments were to abate permanently once their daughter

reached eighteen unless she was enrolled full-time at an

accredited college or university on her eighteenth birthday. We

disagree.

A property settlement agreement is a contract between the

parties and their rights and obligations are defined under it. Pellegrin v. Pellegrin, 31 Va. App. 753, 759, 525 S.E.2d 611, 614

(2000) (citations omitted). We construe the document as a whole

and give effect to all the language, if the contract's parts can

be read together without conflict. See Berry v. Klinger, 225 Va.

201, 208, 300 S.E.2d 792, 796 (1983). In construing contract

documents as a whole, the court will not treat any word or clause

as meaningless if any reasonable interpretation consistent with

the other portions of the contract can be ascribed to it. First American Bank v. J.S.C. Concrete Const., 259 Va. 60, 69, 523

S.E.2d 496, 501 (2000).

Father's interpretation of the agreement would permit him to

terminate support in the event the parties' child reached the age

of eighteen while still in secondary school and failed to leave

before graduation and enroll as a full-time college student. The

1 The Court notes that the order appellant appeals reflects a date of entry of March 29, 2001. As the order indicates the matter came before the trial court on February 5, 2002, this matter is remanded to the trial court for the sole purpose of correcting the clerical error to reflect the proper date of entry. - 3 - interpretation he advances is strained and unreasonable, and we

decline to adopt it. See Hairston v. Hill, 118 Va. 339, 342, 87

S.E. 573, 575 (1916) ("[A]n unreasonable construction is always

to be avoided.").

Moreover, his interpretation fails to give any meaning to

the provision that obligates him to support the child until she

reaches the age of twenty-three if certain conditions are met.

"In the interpretation of written contracts every part of the

contract must be made, if possible to take effect, and every word

of it must be made to operate in some shape or other." Tate v.

Tate, 75 Va. 522, 527 (1881); see also Ross v. Craw, 231 Va.

206, 214, 343 S.E.2d 312, 317 (1986); Allsbury v. Allsbury, 33

Va. App. 385, 390, 533 S.E.2d 639, 642 (2000). Mindful of these

principles, we find the provision at issue establishes that

father's support obligation to his daughter terminated when she

reached eighteen years of age. In order to give effect to the

remainder of the support provision, we also find that the

provision obligates father to "wait and see" if his daughter

enrolled in college as a full-time student after she turned

eighteen and graduated from high school, at which time his

support obligation would resume and continue until she reaches

twenty-three.

The agreement, read as a whole, supports the construction we

place on the support provision. "'The tendency of the courts is

to give to contracts life and virility by interpretation of

their fair intendment . . . .'" Jennings v. Jennings, 12 Va.

App. 1187, 1194, 409 S.E.2d 8, 13 (1991) (quoting Kiser v.

Amalgamated Clothing Workers of America, 169 Va. 574, 590, 194 - 4 - S.E. 727, 733 (1938)). "In doing so, 'all of the provisions of a

contract should be construed together.'" Id. (quoting Chantilly

Constr. Corp. v. Dep't of Highways & Transp., 6 Va. App. 282,

293, 369 S.E.2d 438, 444 (1988)). Paragraph 9 obligates father

to maintain a life insurance policy for Shannon's benefit until

she receives her undergraduate degree or attains the age of

twenty-three, whichever occurs first. The coupling of the

child's age with her pursuit of a college degree mirrors the

language of the support provision and supports the conclusion

that the parties intended for the father's child support payments

to cease when the child reaches the age of eighteen, but resume

after the child reaches eighteen and continue until she reaches

the age of twenty-three, provided she enrolls full-time in a

college program. See generally Berry, 225 Va. at 208, 300 S.E.2d

at 796; Gazale v. Gazale, 219 Va. 775, 779, 250 S.E.2d 365, 367

(1979) (finding "the contract contained several support

provisions other than that for monthly cash payments, which

evince the parties' intent to provide for the children both

before and after they attained the age of majority"); Paul v. Paul, 214 Va. 651, 653-54, 203 S.E.2d 123, 125 (1974) (holding

that, because there were other support provisions in the

agreement, it was clear the parties intended that support

continue past the age of majority).

Similarly, paragraph 7 of the PSA requires father to provide

health insurance for Shannon for as long as she is eligible. No

language limiting father's obligation to provide

health insurance to the period of the child's minority was

included in the health insurance provision. - 5 - For the reasons stated in this opinion, we affirm the

decision of the trial court.

Affirmed.

- 6 -