Miroslava Whitt Gordon v. Michael Whitt ( 1996 )

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.
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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
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(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.
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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.
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