David J. Senechal v. Carol F. Senechal

• Court: Court of Appeals of Virginia
• Decided: November 18, 1997
• Docket: 0514971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Senior Judge Hodges Argued at Norfolk, Virginia

DAVID J. SENECHAL MEMORANDUM OPINION * BY v. Record No. 0514-97-1 JUDGE RICHARD S. BRAY NOVEMBER 18, 1997 CAROL F. SENECHAL

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Jerome James, Judge Barry Kantor (Christie & Kantor, on brief), for appellant.

F. Sullivan Callahan for appellee.

David J. Senechal (husband) appeals a decree of the trial

court which modified spousal and child support payable by husband

to his former wife, Carol F. Senechal (wife), in accordance with

the court's construction of the parties' earlier stipulation

agreement. Husband complains that the court erroneously revised

spousal support contrary to the provisions of the agreement and

the terms of the related final decree of divorce. We agree and

reverse the disputed order.

The parties are conversant with the record, and we recite

only those facts necessary to a disposition of the appeal.

It is uncontroverted that the parties prepared and executed

an "AGREEMENT FOR DIVORCE SETTLEMENT," dated December 30, 1990,

which purported to resolve, inter alia, issues of child custody,

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. visitation, and child and spousal support. The agreement

expressly provided that "child support . . . will be based on the

computations from the income of both parties" and "[s]pousal

support will be the difference between $1,300 per month and the

computed monthly child support . . . ."

Husband and wife were divorced by final decree of the trial

court entered on March 1, 1991, at which time two of four

children born to the marriage remained unemancipated. The decree

expressly referenced the "Stipulation Agreement" of the parties

and ordered that its terms be "ratified and confirmed and

incorporated into and made a part of [such] decree." The divorce

decree further specified that, "pursuant to the Stipulation

Agreement . . . [husband] pay unto [wife] the sum of [$906.29]

per month as child support" and "the sum of [$393.71] per month

as spousal support . . . ." 1 Counsel for both parties endorsed

the decree, "We ask for this," without exception or appeal.

The decree in dispute arose from husband's petition of

August 23, 1995, to modify the divorce decree, seeking a

reduction of child support to reflect the emancipation of one

child. The trial court determined that the parties' agreement

"unambiguous[ly]" required husband to pay wife a "total amount of

support . . . [of] $1,300 per month with the child support

payment to be determined by the statutory guidelines . . . [and]

the difference being spousal support." The court, therefore, 1 Manifestly, these awards aggregate $1,300 per month.

- 2 - reduced the child support but ordered an attendant increase in

spousal support sufficient to maintain a combined monthly award

to wife of $1,300. Husband appeals, arguing that the court was

without both authority and jurisdiction to modify the spousal

support award fixed in the divorce decree "pursuant" to the terms

of the agreement.

It is well established that [w]hen parties contract concerning their property, spousal support, and related aspects of their affairs and file the contract with the court before entry of the divorce decree, "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 non-monetary, shall be entered except in accordance with that . . . contract."

Kaplan v. Kaplan, 21 Va. 542, 548, 466 S.E.2d 111, 114 (1996)

(quoting Code § 20-109). However, "[m]odification of child

support remains with the court regardless of a contract between

the parties." Parillo v. Parillo, 1 Va. App. 226, 231, 336

S.E.2d 23, 26 (1985); Code § 20-108. Hence, in acting on

husband's petition, the court was free to modify his child

support but was restricted by the stipulation agreement with

respect to spousal support.

Husband's spousal support obligation to wife was specified

by the trial court in the final decree of divorce at $293.71 per

month "pursuant" to the formula devised by the parties and set

forth in their agreement, a part of such decree. Thus, any

- 3 - ambiguity in the construction and application of the formula was

resolved by the decree upon terms acceptable to both parties, all

of which became final twenty-one days after entry. Rule 1:1; see

Rook v. Rook, 233 Va. 92, 94-95, 353 S.E.2d 756, 758 (1987);

Wilson v. Holyfield, 227 Va. 184, 198, 313 S.E.2d 398 (1984)

(citation omitted) (construction of agreement is controlled by

intention of parties). Under such circumstances, revision by the

trial court of the agreed spousal support award of $293.71 per

month was proscribed by Code § 20-109. Accordingly, we reverse that portion of the decree which

modified spousal support and remand the proceedings for entry of

a decree consistent with this opinion.

Reversed and remanded.

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