COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff Argued at Alexandria, Virginia
JOHN DAVID PELLEGRIN MEMORANDUM OPINION * BY v. Record No. 0143-96-4 JUDGE ROSEMARIE ANNUNZIATA OCTOBER 29, 1996 DIANE LYNN BINGMAN PELLEGRIN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jack B. Stevens, Judge Daniel G. Dannenbaum (The Lewis Law Firm, on briefs), for appellant.
David M. Levy (Surovell, Jackson, Colten & Dugan, P.C., on brief), for appellee.
Appellant, John David Pellegrin ("husband"), and appellee,
Diane Lynn Bingman Pellegrin ("wife"), were divorced by final
decree entered March 5, 1991, affirming, ratifying and
incorporating the parties' Property, Custody, and Support
Settlement Agreement dated February 12, 1990 (the "agreement").
In 1995, each party filed motions to compel the other to comply
with the agreement. Husband appeals from the court's order
resolving the issues raised in the parties' cross-motions,
contending the following: (1) the court erred in ordering husband
to provide an accounting of accounts identified as the "First
American" accounts; (2) the court erred in relying on tax tables
to determine the amount husband owed wife for the 1994 income tax
liability incurred on support payments from husband; (3) the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. court erred in ordering husband to pay $3,433.29 to wife for
unreimbursed medical expenses and in refusing to allow husband to
present evidence of wife's waiver of her right to such payments;
(4) the court erred in ordering husband to pay wife $7,500 in
attorney's fees; (5) the court erred in interpreting "gross
income" as used in paragraph eight of the agreement to mean
income earned only from wife's employment; and (6) the court
erred in refusing to allow husband to fully and fairly present
his case-in-chief. Finding no reversible error, we affirm the
trial court's order. I.
In her motion, wife alleged that husband had failed to
comply with paragraph nine of the agreement. Paragraph nine
provides, in part, that "there exist certain trust funds for the
children as to which husband shall remain trustee but shall on a
quarterly basis keep wife apprised as to the status of such trust
accounts, including deposits and withdrawals and institutional
statements as to same." She requested the court to compel
husband to provide an accounting of certain funds held in the
First American Bank and to reimburse the accounts for any
improper expenditures.
The court found insufficient the accounting husband had
provided relative to the First American accounts. Accordingly,
the court ordered husband to comply with the agreement by
providing wife an additional accounting, with copies of the
- 2 - checks he had drawn on the accounts.
On appeal, husband alleges that the parties' agreement does
not contemplate the First American accounts and that the court
therefore erred in ordering the accounting. However, as
husband's only objection to the trial court's ruling was that he
had provided a sufficient accounting of the First American funds,
the issue he now raises is procedurally barred. See Rule 5A:18.
II. Wife alleged husband had failed to pay her taxes on the
$12,000 in support payments she received in 1994. According to
the federal and state tax tables which wife submitted in her
pleading, the tax liability on $12,000 was $2,275 in 1994.
Neither at the hearing nor on appeal does husband dispute the
amount of support wife received, the accuracy of the tax tables,
or the amount of the tax liability which results from the
application of the tax tables.
At the hearing, husband argued that, because of certain
deductions and exemptions available to wife, wife's ultimate tax
liability for a given year could be less than the tax solely
attributable to wife's support income by application of the tax
tables, or might even result in a tax refund. Accordingly,
husband argued he should receive a credit for wife's deductions
and exemptions or share proportionally in any tax savings or
refund. Without hearing evidence, the court disagreed, finding
that the language of the agreement was unambiguous in requiring
- 3 - husband to pay the tax on the support payments, regardless of any
deductions wife might or should have taken. Accordingly, the
court ordered husband to pay $2,275 as the tax on wife's support
payments for 1994.
On appeal, husband contends that the court erred in
determining his tax obligation in accordance with the tax tables.
He argues that the agreement unambiguously requires him to pay
only the "actual" tax liability wife incurs on her support income
in light of her total tax liability for a given year. We
disagree with the interpretation of the agreement husband urges
this Court to adopt. "`Where an agreement is complete on its face, is plain and
unambiguous in its terms, the court is not at liberty to search
for its meaning beyond the instrument itself.'" Tiffany v.
Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985) (quoting
Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983)).
"`[C]ourts cannot read into contracts language which will add to
or take away from the meaning of the words contained therein,'" Great Falls Hardware Co. v. South Lakes Village Center Assocs.,
238 Va. 123, 126, 380 S.E.2d 642, 644 (1989) (quoting Wilson v.
Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984)), even
when the contract may appear to reach an unfair result, see
Kaufman v. Kaufman, 7 Va. App. 488, 501, 375 S.E.2d 374, 381
(1988).
Paragraph eight provides, in part, that "[h]usband will pay
- 4 - wife's taxes (State and Federal) on the spousal support payments
for the years 1990-1995." The issue is not further addressed.
Nothing in this provision relates husband's obligation to wife's
taxable income, as derived from her deductions and exemptions, as
well as all sources of income. Nothing in the agreement even
remotely suggests husband is entitled to share in any refund of
taxes due wife or that his obligation bears any relation to
wife's decisions concerning exemptions and deductions. A plain
reading of the provision's language shows that it premises
husband's obligation not on wife's ultimate tax liability, but on
her taxable income derived solely from support payments. We are unpersuaded by husband's argument that the strict
application of the tax tables results in a "windfall" to wife.
Strict application of the tax tables results in a federal tax of
approximately 15% on $12,000. That extenuating circumstances may
result in wife having to "actually" pay less than 15% of $12,000
is no more a "windfall" to wife than would be the benefit to
husband of applying the tax tables to the support income alone
were wife's total tax liability assessed at a rate greater than
15% of her total taxable income.
The agreement, of course, provides no mechanism for dealing
with the myriad potentialities that could arise. We conclude the
omission was intentional, designed to promote simplicity and
constancy in the application of the agreement during the life of
its enforcement. In accordance with well-established principles,
- 5 - we have no authority to read the agreement to provide anything
else. As such, we affirm the decision of the trial court.
- 6 - III.
In her motion to compel, wife alleged that husband failed to
reimburse her for medical expenses not covered by insurance in
the amount of $2,730.42 and asked the court to order husband to
reimburse her for "all of the uncovered medical and dental
expenses that she has paid." In support of her position, wife
relies on paragraph thirteen of the agreement, which states, in
part, that husband shall provide health insurance for wife and
the children under the policy he had in effect at the time of the
agreement, "or a comparable policy thereto," and pay either
directly or by reimbursing wife the expense of any necessary
medical expense not covered by the insurance. The court admitted evidence of wife's medical expenses for
which she claimed reimbursement. This evidence shows expenses in
the amount of $2,730.42, as wife alleged in her pleading, and
shows an additional $1,392.57 for expenses allegedly incurred
after she filed her pleading.
On appeal, husband contends the court erred in considering
wife's evidence that she had an additional $1,392.57 in expenses
on the ground that wife had failed to allege that amount in her
pleading. It is undisputed that wife did not allege the
$1,392.57 amount in her pleading.
Moreover, husband waived any objections he could raise to
the admission of such evidence and, therefore, his contention is
procedurally barred. Husband not only failed to object to the
- 7 - admission of wife's evidence showing that amount, see Rule 5A:18,
he also sought, through his own testimony, to establish that he
had, in fact, reimbursed wife some of the $1,392.57 amount. See
Snead v. Commonwealth, 138 Va. 787, 801-02, 121 S.E. 82, 86
(1924) (waiver of objection where objecting party introduces on
his own behalf testimony similar to that to which the objection
applies). Thus, regardless of whether such evidence should have
been admitted, we cannot say that the trial court erred in
considering it in light of husband's waiver. Husband also contends that the amount of the court's award
is not supported by the evidence. We disagree. Based on wife's
evidence, the total amount husband owed was $3,897.99. In its
final order, however, the court ordered husband to pay $3,433.29.
That amount is $464.70 less than wife's evidence proved she was
owed. Although the evidence in the case was in conflict, the
conflict was resolved by the trier of fact in favor of wife and
there is no question wife's evidence supports the award. See, e.g., Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160,
163 (1992) (conflicts in evidence present factual questions that
are to be resolved by the trial court, and its findings will not
be disturbed on appeal unless plainly wrong).
Moreover, even were we to consider husband's testimony that
he was due an offset of $145 and his proffer that he was due an
additional offset of $199, the alleged total offset is less than
$464.70, the amount which wife's evidence shows should have been
- 8 - included in the award but was not. Thus, any error of the trial
court in computing the award benefits husband and is no basis for
complaint. See, e.g., Director General v. Lucas, 130 Va. 212,
218, 107 S.E. 675, 677 (1921) (error favorable to appellant
constitutes no grounds for reversal).
Husband further contends that wife waived her right to be
reimbursed for her medical expenses, arguing the expenses were
incurred at a time when she failed to cooperate with his attempts
to procure medical insurance for her "comparable" to that which
existed at the time of the agreement. Husband contends that such
failure was a waiver of her right to be reimbursed. He also
contends that the court erred by refusing to allow him to fully
examine wife on this issue in his case-in-chief. This argument is without merit. The agreement requires
husband to provide insurance coverage for wife under the plan
existing at the time of the agreement or under a "comparable"
plan. Husband attempted to prove wife's alleged noncooperation
with his efforts to obtain comparable coverage through the
testimony of Julie Bonilla, husband's office manager and
bookkeeper. While Bonilla testified that wife had not been
cooperative with husband's recent attempts to change insurance
coverage, husband produced no insurance policies for purposes of
comparison. Nor did he produce an insurance expert to compare
policies. The court properly sustained wife's objections to
Bonilla's testimony on the grounds that there was no foundation
- 9 - upon which she could state the new insurance coverage was
"comparable" to the former policy. Moreover, Bonilla testified
that wife's insurance coverage, as it existed at the time of the
agreement, was in effect when she incurred the medical expenses
in question. By inference, there was no need for a new health
insurance plan and, under the agreement, husband was obligated to
reimburse wife her medical expenses. In sum, absent evidence
establishing the need for a new policy or, assuming the need was
established, absent evidence showing the comparability of any new
coverage husband sought to substitute for the former policy,
evidence of wife's failure to cooperate is a moot point, and the
trial court's ruling on the issue was not error. IV. Paragraph eight of the agreement provides, inter alia, that
[i]f, as of May 1, 1995, the wife is employed, or thereafter becomes employed, with an annual gross income in excess of $25,000.00, husband's obligation to pay spousal support and maintenance shall be reduced . . . .
In the absence of this provision, the parties do not dispute that
as of May 1, 1995, husband's support obligation was $3,000 per
month. Nor do the parties dispute that during the six months
from May to October 1995, husband paid wife $2,000 per month.
Husband alleged wife was employed and "earned gross annual
income in excess of $25,000.00" and sought to employ the
provision to reduce his support obligation. Wife did not deny
she was employed but alleged she was "not employed with an annual
- 10 - income in excess of $25,000" and sought to enforce what she
considered to be a $6,000 arrearage.
At the hearing, husband's counsel proffered that wife's
annual income included $9,000 from employment, $19,600 from
rental income, and $24,000 from alimony for a total gross income
of $52,600. However, before hearing testimony, the court ruled
that the agreement referred to "earned income of the wife of
$25,000, not rental income." Accordingly, the court ordered
husband to pay the $6,000 arrearage. On appeal, husband argues that the phrase "with an annual
gross income in excess of $25,000.00" refers to income from
whatever source derived, not to income earned solely from
employment. We disagree.
In the context of paragraph eight, we find the phrase "with
an annual gross income in excess of $25,000.00" unambiguously
refers to gross income from employment. As wife contends, the
phrase clearly places a condition on wife's employment which must
be met before the reduction provision applies. Under husband's
construction, even support payments in excess of $25,000
annually, which would clearly occur if husband continued to pay
$3,000 per month, would trigger an automatic reduction under this
provision, so long as wife was employed and irrespective of any
wage she earned. Nothing in the agreement supports the
conclusion that the parties intended such anomalous results. The
trial court's decision on this issue is, therefore, affirmed.
- 11 - V.
Next, husband argues on appeal that the trial court erred in
refusing to allow him to fully present his case-in-chief and,
specifically, to conduct direct examination of wife on the issue
of her compliance with his attempts to procure insurance. There
is no merit in this contention.
This case was scheduled to be heard in one day. Wife's
case-in-chief was presented first, interrupted by husband's out-of-turn examination of one of his witnesses, Julie Bonilla.
After wife testified in her own behalf, husband's counsel
cross-examined her, and ended his examination, noting he intended
to recall wife in husband's case-in-chief.
The presentation of husband's direct testimony in his
case-in-chief continued until the end of the day, necessitating a
second day of hearing. The court stated that the direct
examination of husband by husband's counsel would have to be
concluded before adjournment that day. The court further stated
it would continue the case to the following day to allow wife's
counsel the opportunity to cross-examine husband. Wife's counsel
then agreed to ask only two questions on cross-examination so the
case could end that day.
Husband's counsel continued the direct examination of
husband, eliciting testimony on the offsets to be applied to
wife's claimed medical expenses. While husband testified to the
amounts he claimed to have made in reimbursing wife, he could not
- 12 - produce specific checks reflecting the payments he claimed. The
court declined to hear further testimony on the issue, ordering
husband to produce the checks instead. Wife then cross-examined
husband briefly. The court set the matter down for a second day
of hearing and stated that no new witnesses would testify on that
day. Husband did not object.
When the hearing resumed, husband was represented by
different counsel. Husband asked for a few hours to continue to
present his case on his motion to compel. The court initially
refused, responding that the issues husband raised in his motions
were "fully explored" at the October hearing. Husband's counsel
persisted, arguing that husband had not had a chance to call wife
in his case-in-chief and, due to the scope of wife's direct, had
not been able to cross-examine her on the issue of courses for
which husband had paid and which wife had allegedly dropped. The
court granted husband's request, and husband called and examined
wife on that issue. The court also allowed husband the
opportunity to present the specific checks it had requested in
the earlier hearing to demonstrate any offsets to wife's claimed
medical expenses. Husband never produced the checks requested
for the court's review. Trial conduct is committed to the discretion of the trial
court. E.g., Cunningham v. Commonwealth, 2 Va. App. 358, 365,
344 S.E.2d 389, 393 (1986). In his case-in-chief, husband
examined Julie Bonilla and gave testimony himself. The court
- 13 - interrupted the testimony of Bonilla because it properly found
her testimony irrelevant to the issues before it. The court
directed husband to conclude his testimony at the end of the
first day of hearing and specifically stated, without objection,
that no new witnesses would be heard on the second day of the
hearing. On the second day of the hearing the court agreed to
allow husband to produce specific checks establishing his claim
of offset to wife's unreimbursed medical expenses. Husband
failed to produce the specific checks to demonstrate the alleged
offset. Thus, any harm to husband's case-in-chief on these
issues resulted from his own failure of proof. Furthermore, the court permitted husband to call and examine
wife in his case-in-chief on the second day of the hearing to the
extent he requested. Having failed to request further
examination of wife on the issue of her failure to cooperate in
obtaining comparable health insurance, this issue on appeal is
procedurally barred. See Rule 5A:18. Husband's only request
respecting the scope of examination of wife was granted.
VI.
Next, husband argues the court erred in awarding wife
attorney's fees. Paragraph twenty-four of the agreement provides
that expenses, including attorney's fees, incurred by one of the
parties in successfully enforcing any of the agreement's
provisions or in successfully defending any action for
enforcement shall be borne by the other party. It is clear both
- 14 - from the trial court's order and, thus, from the posture of this
case on appeal, that wife was successful in both enforcing the
agreement's provisions and in defending husband's actions for
enforcement.
On appeal, husband contends the fee award was excessive. He
further argues that wife failed to present proper proof to
support the award of attorney's fees and that wife should have
presented expert testimony to justify the fees. Husband failed
to raise these objections to wife's evidence before the trial
court. Accordingly, husband's contention that wife presented
insufficient evidence in support of the attorney's fees award and
that the amount of the award was excessive is procedurally
barred. See Rule 5A:18.
Accordingly, the decision of the circuit court is affirmed.
This matter is remanded to the trial court to assess and award
appropriate appellate attorney's fees to wife.
Affirmed and remanded.
- 15 -