Harry E Milner, Jr v. Sheril L Milner

• Court: Court of Appeals of Virginia
• Decided: May 6, 2003
• Docket: 1484021
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Humphreys and Kelsey Argued at Richmond, Virginia

HARRY E. MILNER, JR. MEMORANDUM OPINION * BY v. Record No. 1484-02-1 JUDGE D. ARTHUR KELSEY MAY 6, 2003 SHERIL L. MILNER

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Robert B. Cromwell, Jr., Judge

Albert L. Fary, Jr. (Albert L. Fary, Jr., P.C., on briefs), for appellant.

Paul D. Merullo (Shuttleworth, Ruloff, Giordano & Swain, P.C., on brief), for appellee.

Harry E. Milner, Jr. contends that the trial court erred

when it incorporated the parties' separation agreement into the

final divorce decree and enforced a contractual support

obligation imposed by that agreement. Finding no error in the

trial court's decision, we affirm.

I.

When reviewing a chancellor's decision on appeal, we view

the evidence in the light most favorable to the prevailing

party, granting it the benefit of any reasonable inferences.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Wright v. Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704

(2002); Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256,

257 (1995).

Harry and Sheril Milner married in 1984. In 2000, the

couple decided to divorce and retained the services of a

mediator. On June 1, 2000, while in mediation, both parties

signed a separation agreement. Section I of the agreement

provided, in relevant part, that "Sherrie and Harry waive their

claims to spousal support." Section IV, entitled "Child Support

Agreement," declared that "Harry agrees to pay child support to

Sherrie" for the Milners' only son. This same provision

continued:

The "Shared Custody Virginia Child Support Guidelines" have been calculated to have Harry providing $294.65 monthly to Sherrie, however, in the best interest of their child, Harry and Sherrie have agreed to deviate from the Guidelines, with Harry offering to provide, and Sherrie agreeing to accept, Three Hundred dollars ($300.00) for child support, plus Seven Hundred dollars ($700) every month commencing June 1, 2000, and continuing every month thereafter until June 1, 2003 or said amount is modified by the parties or a court of competent jurisdictions.

(Emphasis added).

After paying for two months the full amount agreed under

Section IV, Mr. Milner decided he would no longer make the

additional $700-per-month payment. He sent an e-mail to his

wife stating, "I cannot continue to give you $700 every month

- 2 - for your rent. The best that I can do is $350. This amount

plus child support, and my share of our combined debt, it is

still very reasonable." Mrs. Milner, responding by phone, asked

Mr. Milner to sign the agreement "null and void" because, as she

put it: "I said, because he is obviously not going to stick to

the agreement, that I wanted to meet with him and have him sign

the agreement stating that." Mr. Milner refused. Without the

benefit of counsel, Mrs. Milner assumed the agreement was "null

and void" simply because, as she explained it, Mr. Milner

stopped "paying me the money he was supposed to pay me."

About a month later, Mrs. Milner then retained counsel and

filed a bill of complaint for divorce requesting "support and

maintenance for herself and support for the minor child." She

also filed a motion for pendente lite relief requesting child

support and custody. Mr. Milner answered and filed a cross-bill

alleging that "the parties mutually agreed to separate on

February 9, 2000."

At a pendente lite hearing in November 2000, the parties

submitted an agreed decree setting Mr. Milner's child support

obligation at $362 a month pursuant to statutory guidelines.

The decree further indicated: "No support arrearages exist as

of the date of this Order." The form order included a paragraph

entitled "spousal support" in which the parties inserted "n/a"

in the open space for the dollar figure. The pendente lite

- 3 - decree did not mention the $700 monthly payment obligation

imposed by the separation agreement.

At the commissioner's hearing in April 2001, Mr. Milner

submitted the separation agreement as an exhibit. He conceded

that at no time did the parties ever "in writing, revoke that

agreement." Mr. Milner testified that he stopped making the

$700 monthly payment, not because of any rescission of the

agreement, but because he "couldn't financially do it." Though

he attempted to renegotiate "something workable," Mrs. Milner

refused to release him from the obligation. He treated the

$700-per-month obligation as "null and void" because he "was

under the impression that once the papers were filed, that it

starts over. I don't know. I'm not an expert."

Mr. Milner also conceded that, under the terms of the

agreement, he was obligated to pay child support and "an

additional payment of 700 [sic] every month, commencing June 1st

of 2000." In consideration, Mrs. Milner explained, she waived

any further right to seek spousal support. Throughout his

testimony, Mr. Milner acknowledged the distinction between the

$300-per-month child support payment and the additional

$700-per-month payment (the "rent thing" as he called it). Mr.

Milner made clear he did not "think that the agreement was

void." He simply "stopped complying with the rent thing, that's

it."

- 4 - The separation agreement, Mr. Milner's counsel argued to

the commissioner, was still binding with the exception of the

$700 monthly payment obligation. That provision, he insisted,

had been superceded by the pendente lite order. The

commissioner disagreed, finding the separation agreement (with

the exception of its child support provisions) continued to be

"a valid agreement." The commissioner held that the pendente

lite decree dealt only with child support and did not affect Mr.

Milner's continuing obligation to make the $700 monthly

payments. The $700-per-month payment constituted "an obligation

above and beyond the child support," the commissioner ruled. He

added that, if the parties "wanted to change that $700, it had

to be done . . . in writing."

In February 2002, the chancellor reviewed and approved the

commissioner's findings regarding the continued binding effect

of the separation agreement. The chancellor also agreed that,

even though the agreement elsewhere waived either party's right

to further "spousal support" as such, the provision nonetheless

imposed on Mr. Milner the $700-per-month obligation as "simply a

form of temporary support" to help Mrs. Milner "get back on her

feet financially, and that is distinct and separate from the

child support." The chancellor also rejected Mr. Milner's

argument that the pendente lite decree addressed, much less

vitiated, the $700-per-month obligation imposed by the

separation agreement.

- 5 - II. A.

Mr. Milner first asserts that the chancellor had no

authority to enforce the spousal support obligation arising out

of the separation agreement because Mrs. Milner failed to

request this specific form of relief in her bill of complaint.

We agree with the underlying principle he relies upon, but

disagree that it has not been properly applied in this case.

It is true that spousal support may not be awarded if the

requesting party does not expressly request it in the pleadings.

See, e.g., Fleming v. Fleming, 32 Va. App. 822, 826, 531 S.E.2d

38, 40 (2000); Reid v. Reid, 24 Va. App. 146, 149-50, 480 S.E.2d

771, 772-73 (1997); Boyd v. Boyd, 2 Va. App. 16, 17-18, 340

S.E.2d 578, 579 (1986). And, in keeping with this rule, Mrs.

Milner's bill of complaint requested "support and maintenance

for herself" in addition to child support. In reply, Mr.

Milner's cross-bill asked that "spousal support be denied" to

both parties. The pleadings, therefore, placed the issue of

spousal support squarely before the trial court.

It is not true, however, that spousal support can only be

awarded pursuant to a separation agreement when the initial

pleading specifically identifies the agreement and asserts its

applicability. The requirements for pleading "are not so strict

as to demand specificity beyond that necessary to 'clearly

[inform] the opposite party of the true nature of the claim or

- 6 - defense' pled." Balzer & Assocs. v. Lakes on 360, 250 Va. 527,

531, 463 S.E.2d 453, 456 (1995) (quoting Rule 1:4(d)); see also

Rule 2:2 (An equity complaint, properly pled, implicitly

includes request for "general relief as the nature of the case

may require and to equity may seem meet . . . ."). Thus, notice

pleading principles require fair warning of the form of relief,

not its specific method of calculation.

We do not apply the standards of notice pleading

inflexibly, but instead accept "substantial compliance" if it

sufficiently informs the litigants and the trial court of the

contested issues. Gologanoff v. Gologanoff, 6 Va. App. 340,

348, 369 S.E.2d 446, 450 (1988). "To hold otherwise would be to

put form over substance, which we refuse to do." Id. Such

concerns are particularly true where, as here, a chancellor acts

within the broad boundaries of equity. Johnson v. Buzzard

Island Shooting Club, 232 Va. 32, 36, 348 S.E.2d 220, 223 (1986)

("Preferring substance over form, a court in equity may very

properly mold the pleadings so as to ascertain the rights of the

parties and thus end the litigation." (internal quotation marks

and citation omitted)).

Guided by these general principles, we find no specific

requirement in Code § 20-109.1 that separation agreements be

expressly addressed in the initial pleadings. Code § 20-109(c),

moreover, permits litigants to file a separation agreement at

any time "before entry of a final decree." To be sure, it is

- 7 - often the case that parties consummate agreements of this kind

after suit has been filed. So long as a request for spousal

support has been made in the pleadings, the chancellor must

order such support in the amount agreed upon by the parties.

See Code § 20-109(c) (If a valid separation agreement has been

filed, no spousal support order "shall be entered except in

accordance with that stipulation or contract.").

We hold that Mrs. Milner, by requesting spousal support in

her bill of complaint, was entitled under Code § 20-109(c) to

file the separation agreement and to seek enforcement of its

contractual support terms. Nothing in the pleadings or the

evidentiary proceedings causes us to believe that Mr. Milner, at

any point in this litigation, failed to appreciate the nature or

character of his wife's claim.

B.

Mr. Milner next argues that, even if the chancellor had

authority to enforce the separation agreement, he abused his

discretion in doing so because he had previously "modified" the

agreement by issuing the pendente lite decree and thereby

released Mr. Milner of the $700-per-month obligation. We find

no error in the chancellor's rejection of this argument.

Under settled principles, "when construing a lower court's

order, a reviewing court should give deference to the

interpretation adopted by the lower court." Albert v. Albert,

- 8 - 38 Va. App. 284, 298, 563 S.E.2d 389, 396 (2002) (quoting

Fredericksburg Constr. Co. v. J.W. Wyne Excavating, Inc., 260

Va. 137, 144, 530 S.E.2d 148, 152 (2000), and Rusty's Welding

Serv., Inc. v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260

(1999) (en banc)); see also Leitao v. Commonwealth, 39 Va. App.

435, 438, 573 S.E.2d 317, 319 (2002) (On appeal, "we defer to a

trial court's interpretation of its own order."). The trial

court's interpretive discretion, however, "must be exercised

reasonably and not arbitrarily or capriciously." Smoot v.

Commonwealth, 37 Va. App. 495, 500, 559 S.E.2d 409, 412 (2002)

(citation omitted).

The commissioner and chancellor were in complete agreement

on their interpretation of the pendente lite decree. They found

its terms applicable only to the then-pending request for child

support, not to the enforceability of the $700 monthly payment

in the separation agreement. The evidence surrounding the entry

of the agreed order amply supports their view. The pendente

lite notice did not identify the $700 monthly payment (or, for

that matter, any spousal support issue) as a topic to be

addressed at the hearing. The insertion of "n/a" into the

paragraph of the pendente lite decree concerning spousal

support, the chancellor reasonably concluded, simply meant the

interlocutory order did not address the issue at all —— not that

all prior written agreements on the subject were necessarily

"null and void" as Mr. Milner suggests. As to the statement in

- 9 - the decree that "no support arrearages exist," here again, the

chancellor understood this language to apply only to the child

support issue —— the only support issue addressed by the court

at the pendente lite hearing.

For these reasons, the chancellor did not abuse his

discretion in interpreting the pendente lite decree as he did.

Under the chancellor's interpretation, the decree did not

"modify" or render "null and void" Mr. Milner's preexisting

contractual obligation to make the $700 monthly payments. This

reasonable interpretation of the decree falls well within the

latitude we afford trial courts in the construction of their own

decrees.

As the commissioner and the chancellor both noted, Code

§§ 20-153 and 20-155 provide that separation agreements may be

modified or rescinded only in writing. See Smith v. Smith, 19

Va. App. 155, 157, 449 S.E.2d 506, 507 (1994). At no time did

the parties or the trial court modify or rescind in writing the

$700-per-month support obligation imposed by the separation

agreement. It thus retained its legal vitality and, in the

chancellor's discretion, could be incorporated into the final

decree. See Code § 20-109.1 ("Any court may affirm, ratify and

incorporate by reference in its decree dissolving a marriage or

decree of divorce . . . any valid agreement between the parties,

or provisions thereof . . . .").

- 10 - III.

In sum, the trial court did not abuse its discretion by

enforcing Mr. Milner's obligation to pay $700 a month (from June

2000 to June 2003) as a contractual "form of temporary support."

Mrs. Milner's request in her bill of complaint for spousal

support placed the issue before the court, and the chancellor

acted within his discretion by resolving that issue in her

favor.

Affirmed.

- 11 -