Miroslava Whitt Gordon v. Michael Whitt

• Court: Court of Appeals of Virginia
• Decided: January 23, 1996
• Docket: 0847954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Annunziata and Overton Argued at Alexandria, Virginia

MIROSLAVA WHITT GORDON

v. Record No. 0847-95-4 MEMORANDUM OPINION * BY JUDGE ROSEMARIE ANNUNZIATA MICHAEL WHITT JANUARY 23, 1996

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. Howe Brown, Judge Jerold J. Negin (Raymond B. Benzinger, on brief), for appellant.

Craig E. Baumann, for appellee.

On July 18, 1990, Miroslava Whitt Gordon ("wife") and

Michael Whitt ("husband") entered a separation and property

settlement agreement ("PSA") that was incorporated by reference

into a Final Decree of Divorce entered November 6, 1990. Each of

the parties were the subject of Rules to Show Cause based on

certain alleged violations of the PSA. The wife appeals the

trial court's order entered after a hearing addressing the issues

raised by the Rules.

On appeal, wife claims the court erred in the following: (1)

finding that wife drafted the PSA; (2) concluding that wife is

liable under the PSA for the principal balance of the debt on an

equity line of credit; (3) excluding from evidence husband's

letters to wife; (4) precluding wife's counsel from conducting

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. redirect examination of wife; and (5) failing to award wife a

three-day share of husband's military pension. We find the court

erred in its construction of the PSA provision relating to the

liability for the line of credit indebtedness and, therefore,

reverse and enter judgment for wife on this issue. We also

reverse the trial court's decision denying wife's claim to a per

diem, pro rata share of husband's pension. The remaining issues

need not be reached as they have no bearing on the outcome of

this appeal. Property settlement agreements are subject to the same rules

of interpretation as other contracts. Smith v. Smith, 3 Va. App.

510, 513, 351 S.E.2d 593, 595 (1986). Construing the terms of

such agreements is an issue of law, entitled to independent

review. See Id. The Court first inquires whether a term is

unambiguous; if so, the term is given its ordinary meaning. Id.

at 513-14; Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796,

799 (1985). A term is not ambiguous merely because the parties

disagree as to its meaning. Id.; Wilson v. Hollyfield, 227 Va.

184, 187, 313 S.E.2d 396, 398 (1984).

The parties' respective positions regarding the line of

credit liability rest on two paragraphs in the PSA which state as

follows: 12. The "Husband" transfers and assigns unto the "Wife" his rights, title and claim to the Home and equity located at, 12143 Derriford Court, Woodbridge, VA 22192, currently titled/deed in both names and they shall execute such documents as may be necessary or proper for the issuance of new ownership documents for said property in the name of the "Wife". The "Husband" gives up his claim to the share of equity in 12143 Derriford Court.

- 2 - The "Wife" will be responsible for all taxes, (capital gains), fees and other expenses related to the ownership of this property. The "Wife" agrees to be liable and pay the current indebtedness, if any, on this property and agrees to indemnify and hold the "Husband" harmless from any and all liability thereon.

13. The "Husband" transfers and assigns unto the "Wife" his claim to use the home equity line of credit on the House located at, 12143 Derriford Court, Woodbridge, VA 22192. The "Husband" agrees to be liable and pay the current indebtedness, if any, on this equity line of credit and agrees to indemnify and hold the "Wife" harmless from any and all liability thereon. Neither party will be allowed to use the equity line as a line of credit in the future.

Wife alleges paragraph 13 of the PSA when read together with

paragraph 12 requires husband to pay not only the current

interest on the equity line, but also the principal debt which

became due upon the sale of the marital home. Husband contends

wife is liable for the principal since paragraph 12 requires wife

to pay the "current indebtedness" on the marital residence and to

hold husband harmless as to any such indebtedness. Husband

reasons that, since the line of equity was secured by the house,

the term "current indebtedness" in paragraph 13 must be construed

as limiting his liability to the interest due on the equity line

of credit and not the principal, which became due when and if the

house was sold.

Although the parties in this case disputed what was intended

by the use of the term "current indebtedness" in paragraph 13, we

find the provision to be unambiguous. As such, we confine

ourselves to the four corners of the instrument in construing the

PSA. See Blunt v. Lentz, 241 Va. 547, 551, 404 S.E.2d 62, 64

- 3 - (1991). In so doing, it is clear that the parties intended their

use of the term "current indebtedness" in paragraph 13 to

encompass both the principal and interest owed on the equity line

of credit.

The parties used the term "current indebtedness" in a

formulaic manner in each of the eight paragraphs in the PSA which

address the division of the marital property and the party

responsible for paying the remaining debt on the property to be

transferred. The property and debt so divided included vehicles,

a sailboat, a land parcel in Florida, as well as the marital home

and the use of the home equity line of credit. In each instance,

it is clear the parties intended the transferee spouse to be

liable for the total debt associated with the property that

spouse received. The PSA is manifestly devoid of any language

that supports the view that the parties invested or intended to

invest the term "current indebtedness" as it related to the

liability for the line of credit with a meaning entirely

different from the meaning the parties clearly gave the term

throughout the document. We also conclude that the trial court erred in denying

wife's claim to a pro rata share of the husband's April 1, 1993

retirement payment representing the three days in March 1993 that

preceded her remarriage. While the payment was not earned on a

per diem basis, a division of the payment on that basis is not

precluded by the parties' agreement or by either law or equity.

- 4 - Accordingly, the judgment of the trial court on these two

issues is reversed and judgment entered in favor of the wife

requiring the husband to pay the principal and interest owed on

the equity line of credit, and to pay wife her pro rata share of

his April 1, 1993 retirement payment in the amount of $48.16.

Reversed.

- 5 -