White v. White

482 S.E.2d 78, 24 Va. App. 297, 1997 Va. App. LEXIS 139
CourtCourt of Appeals of Virginia
DecidedMarch 11, 1997
DocketRecord No. 0030-96-3
StatusPublished
Cited by3 cases

This text of 482 S.E.2d 78 (White v. White) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. White, 482 S.E.2d 78, 24 Va. App. 297, 1997 Va. App. LEXIS 139 (Va. Ct. App. 1997).

Opinions

BAKER, Judge.

Russell A. White (husband) appeals from an order entered on November 27, 1995 by the Circuit Court of Montgomery County (trial court) that held him in contempt for failing to comply with the provisions of a July 15, 1991 divorce decree. Husband contends that the trial court erred (1) in construing the terms of a “property settlement agreement” it had incorporated into the divorce decree and (2) in finding him guilty of contempt for failing to comply with that decree.

On May 31, 1991, Drema C. White (wife) filed a bill of complaint requesting a divorce and alleged that husband “agreed, in writing, to give [her] the sum of Thirty Thousand Dollars ($30,000.00), payable in 120 monthly installments.... ” The bill was personally served on husband. He failed to file a response or deny the allegations.

[299]*299Husband was personally served with notice that depositions would be taken to be read as evidence in support of wife’s bill. Husband did not appear at the deposition hearing and offered no evidence in support of his position.

On May 1, 1991, husband executed the following document: I, RUSSELL A. WHITE DO HEREBY PROMISE TO PAY THE $30,000.00 (THIRTY THOUSAND DOLLARS) MORTGAGE FOR THE HOUSE AND PROPERTY LOCATED AT 265, ASH DRIVE, CHRISTIANSBURG, VIRGINIA 24073. SAID PAYMENTS TO BE MADE TO FIRST VIRGINIA BANK ON A REGULAR MONTHLY BASIS FOR 120 (ONE HUNDRED TWENTY) MONTHS. I RESERVE THE RIGHT TO PAY OFF THE MORTGAGE EARLY WITHOUT PENALTY. I PROMISE TO PAY PRINCIPLE [sic] AND ACCRUED INTEREST ONLY. I WILL NOT PAY ESCROW FOR TAXES, INSURANCE, NOR ANY OTHER PURPOSE. IF ALLOWABLE BY CURRENT TAX CODES, I RESERVE THE RIGHT TO CLAIM MORTGAGE INTEREST AS MY EXPENSE FOR INCOME TAX PURPOSES. THIS PROMISE TO PAY THE MORTGAGE IN NO WAY CONSTITUTES LIABILITY FOR SAID PROPERTY. IN THE EVENT OF MY DEATH, THIS PROMISE IS NULL AND VOID — IT DOES NOT PASS TO MY HEIRS NOR TO MY ESTATE.

SIGNED: s/RUSSELL A. WHITE

DATE: 5-1-91

This 1st day of May, 1991

Amy O. Hall

Notary Public

Commission expires Jan. 2,1994

The above document was not signed by wife.

The depositions filed with the Court disclose the following evidence given by wife:

Q. Now I believe that your husband entered into an agreement on May 1, 1991, wherein he agreed to pay you the sum [300]*300of $80,000.00, payable in 120 monthly installments, that being 119 installments of $431.72 beginning on June 23, 1991, and a final installment of $432.23 on May 23, 2001, is that correct?

A. Yes, that is correct.

Q. And that was filed with your bill of complaint and marked Exhibit “A”?

A. Yes.

Q. Are you requesting that this agreement be incorporated by reference into a final decree of divorce?

A. Yes, I am.

On July 15, 1991, after reviewing the depositions and the aforementioned document, the trial court entered a decree of divorce which provided that “the [husband] entered into an agreement dated May 1, 1991, with respect to maintenance and support ... that [husband] has not objected thereto.” The decree further provided that

it is further ADJUDGED, ORDERED and DECREED that the Court doth ratify, confirm, approve and incorporate into this decree by reference thereto the Agreement made by the defendant dated May 1,1991.

(Emphasis added).

The record discloses no objection to the trial court’s construction of the evidence as a promise to pay “maintenance and support.” Husband did not appeal from the trial court’s findings included in the divorce decree. In fact, husband made no objection before the divorce decree became finai and the time to appeal expired.

On November 17, 1994, wife sold the property described in Exhibit “A.” Until that date, husband made the monthly payments as promised but thereafter ceased making further payments to wife. Husband asserted that any sum he owed was paid off as a part of the property sale. On February 2, 1995, wife moved for a show cause order to require husband to demonstrate why he should not be held in contempt of the [301]*301July 15, 1991 divorce decree for failure to make payments due her as ordered by that decree.

After the show cause hearing, the trial court held as follows: UPON CONSIDERATION of the facts and issues, the Court holds that by Final Decree entered on July 15, 1991, an agreement was made and ratified in a Decree dated May 1, 1991 which Decree stated that [husband] entered into an agreement dated May 1, 1991, with respect to maintenance and support.
By [sic] July 15, 1991, the Court construed the agreement as an obligation of Spousal Support.
The Court on July 15, 1991 having made this determination, must now decide in light of the current dispute between the parties, the characterization of said support obligation. From the evidence presented herein, the Court finds as follows:
1. The agreement previously ratified and confirmed constitutes a lump sum award to [wife] be [sic] a certain sum of $30,000.00 payable in installments, and it is hereby,
& % # Sfc # S-Í
ADJUDGED, ORDERED and DECREED, that this matter is taken under advisement for a period of one year from June 1, 1995 to allow [husband] to purge himself of said Contempt, provided he commence monthly payments to [wife] ... beginning June 1,1995.

In this appeal, husband asserts that the agreement did not provide for the maintenance and support of wife as stated in the divorce decree, and that it was a “contract” only to pay a debt of wife. In support of his argument, husband cites Owney v. Owney, 8 Va.App. 255, 379 S.E.2d 745 (1989).

In Owney, in return for promises made by the wife, the husband agreed to assume responsibility for the monthly payments of an outstanding loan described in a property settlement agreement. The trial court issued a decree which [302]*302declared this monthly responsibility to be spousal support. The husband timely perfected an appeal from that declaration. This Court reversed and remanded the case, holding (1) that the trial court had failed to incorporate the agreement into the decree, thereby depriving itself of the power to enforce the agreement, and (2) that the trial court’s finding that the husband’s obligation was “spousal support” contravened the “plain language of the agreement,” in violation of Code § 20-109.

Husband fails to acknowledge the critical differences between his case and Owney. In Owney, the aggrieved party properly preserved the substantive issue of whether his agreed payment was spousal support by filing a notice of appeal within thirty days of the decree. Here, husband failed to timely note an appeal from the trial court’s findings made in the July 15, 1991 divorce decree. His complaint concerning the findings made in the divorce decree was first asserted four and one-half years after the divorce decree became final.

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Related

White v. White
509 S.E.2d 323 (Supreme Court of Virginia, 1999)
White v. White
494 S.E.2d 161 (Court of Appeals of Virginia, 1997)
Russell A. White v. Drema C. White
Court of Appeals of Virginia, 1997

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Bluebook (online)
482 S.E.2d 78, 24 Va. App. 297, 1997 Va. App. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-white-vactapp-1997.