Arthur G. Kahn v. Eileen McNicholas ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Senior Judge Annunziata
PUBLISHED
Argued in Alexandria, Virginia
ARTHUR G. KAHN
OPINION BY
v. Record No. 0982-16-4 JUDGE TERESA M. CHAFIN
JANUARY 31, 2017
EILEEN McNICHOLAS
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDIRA
Nolan B. Dawkins, Judge
Arthur G. Kahn, pro se.
Amir Raminpour (Sandground, West, Silek & Raminpour, PLC, on
brief), for appellee.
On June 8, 2016, the Circuit Court of the City of Alexandria held Arthur G. Kahn in
contempt of court for failing to pay his ex-wife, Eileen McNicholas, a sum of money pursuant to
the terms of the Separation and Property Settlement Agreement (“PSA”) incorporated into the
parties’ final decree of divorce. On appeal, Kahn argues that the circuit court did not have the
authority to enforce the payment of the monetary awards at issue through its contempt power.
Kahn also contends that the circuit court erred by refusing to impose sanctions against
McNicholas and her attorney based on their misrepresentation that the divorce decree ordered
Kahn to pay spousal support. For the reasons that follow, we affirm the circuit court’s decision.
I. BACKGROUND
“When reviewing a [circuit] court’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.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). In the present case,
however, most of the relevant facts are undisputed.
Kahn and McNicholas were married on December 6, 2002, and they mutually and
voluntarily separated with the intent to end their marriage on August 6, 2013. The parties
entered into the aforementioned PSA on March 3, 2014, in anticipation of their divorce. Kahn, a
licensed practicing attorney, drafted the agreement. The PSA divided the parties’ marital
property and addressed their future spousal support obligations.1
Sections 2, 3, and 4 of the PSA are pertinent to this appeal. Section 2 of the PSA, entitled
“Lump Sum Payment,” established one of the monthly payment obligations underlying the
contempt finding at issue in this case. That section stated, “Husband and Wife agree that Wife
shall be paid a lump sum of forty thousand dollars ($40,000.00) in 16 equal monthly payments of
two thousand five hundred dollars ($2,500.00), beginning September 2013 and ending with
husband’s last monthly payment in December 2014.”
In Section 3 of the PSA, entitled “Alimony,” both parties waived their right to receive
future alimony or spousal support payments. Section 3 of the PSA stated:
Husband and Wife hereby release and relinquish any and all right
to alimony or support which he or she may have from the other as
a result of this marriage, and each of them hereby expressly
acknowledges that he or she understands that the waiver of
alimony, as herein provided, constitutes an irrevocable waiver of
all support rights he or she might have from the other, and that he
or she can never again look to the other for support.
Section 4 of the PSA created an additional monthly payment obligation pertinent to the
contempt finding at issue. That section provided that, “In addition to the aforesaid [lump sum]
payment, Husband agrees to pay Wife’s health insurance and car insurance premiums in their
present amount for the period ending December 31, 2014, at which time Husband will terminate
said payments.”
1
No children were born of the marriage.
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The circuit court entered a final decree granting the parties a divorce on May 29, 2014.
Like the PSA, the final decree of divorce was drafted by Kahn. The final decree expressly
affirmed and ratified the parties’ PSA, and incorporated that agreement into the order. In a
section entitled “Notices to Parties Pursuant to Virginia Code § 20-107.1(H),” the final decree
contained the following provision pertaining to the parties’ spousal support obligations:
The amount of periodic support expressed in fixed sums,
along with the payment interval, the date payments are due, and
the date the first payment is due are as follows:
The current amount of . . . periodic spousal support is as
follows:
Periodic Support: $2,500
Payment Interval: Monthly
Payment Due Date: 15th day of the month
First Payment Due: September 15, 2013
Last Payment Due: December 15, 2014
(Emphasis added). This section of the final decree also specified that no support arrearages
existed when the order was entered, and set forth the method by which support payments would
be credited in the event of an arrearage. Additionally, this section stated that any unpaid support
obligations created judgments by operation of law as they became due, and noted that Kahn had
an additional obligation to maintain medical and dental insurance for McNicholas until
December 31, 2014.2 Both parties endorsed the final decree without objection.
Kahn complied with the terms of the parties’ PSA and their final decree of divorce for ten
months. He paid McNicholas the monthly installments on the lump sum payment and
2
We note that this section of the final decree of divorce referenced medical and dental
insurance premiums, whereas the PSA referenced medical and car insurance premiums. Kahn’s
failure to reimburse McNicholas for car insurance premiums is not at issue on appeal.
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reimbursed her for her health and dental insurance premiums from September 2013 until June
2014. He also paid McNicholas $2,700 in January 2015. Kahn, however, failed to pay
McNicholas monthly payments or reimburse her for her insurance premiums from July 2014
through December 2014. Kahn refused to make these payments because he claimed that
McNicholas’s prior adultery invalidated the PSA.
On October 6, 2015, McNicholas filed a petition requesting the circuit court to enforce
the parties’ final divorce decree. The petition alleged that Kahn had failed to reimburse
McNicholas for her insurance premiums and make six of the monthly payments required by the
PSA and divorce decree, resulting in an arrearage of $13,488. Notably, however, the petition
referred to Kahn’s payment obligations as “periodic spousal support.” The petition requested the
circuit court to issue a rule to show cause requiring Kahn to appear and explain his failure to
comply with the court’s order. The petition also requested the circuit court to hold Kahn in
contempt of court for his noncompliance, and award McNicholas the attorney’s fees and costs
associated with the actions required to enforce the order.
The circuit court issued a rule to show cause commanding Kahn to appear and explain
why he should not be held in contempt of court and fined or imprisoned for his failure to comply
with the parties’ final decree of divorce. While Kahn admitted that he had failed to make the
payments at issue in McNicholas’s petition, he argued that the circuit court could not enforce the
payments specified in the parties’ PSA through its contempt power. Kahn claimed that the
circuit court could only use its contempt power to enforce the payment of spousal or child
support obligations. Although McNicholas’s petition referred to Kahn’s payment obligations as
“spousal support,” Kahn noted that McNicholas unambiguously waived her right to receive
spousal support payments in the PSA. Thus, Kahn maintained that the payments at issue could
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not be considered spousal support payments, and therefore, they could not be enforced through
contempt proceedings.
The circuit court disagreed with Kahn’s argument and found the evidence presented
sufficient to hold him in contempt of court. The circuit court deferred entering an order to that
effect, however, to give Kahn an opportunity to pay the arrearage. In an order entered on
November 25, 2015, the circuit court continued the matter until December 23, 2015, to allow
Kahn the opportunity “to pay $13,488.00 and an additional $1,000.00 in attorney’s fees” to
McNicholas. The order then expressly stated that Kahn would be held in contempt of court if he
failed to make the payment before December 23, 2015. The circuit court’s order did not
characterize Kahn’s payment obligations as “spousal support” or “alimony.”
On December 1, 2015, Kahn filed a notice of appeal pertaining to the November 25, 2015
order. This Court dismissed the appeal on May 12, 2016, because the November 25, 2015 order
was not a final decision. See Kahn v. McNicholas, No. 1974-15-4 (Va. Ct. App. May 12, 2016).
On May 31, 2016, McNicholas filed a motion in the circuit court requesting that Kahn be held in
contempt of court for failing to comply with the November 25, 2015 order and the parties’ final
decree of divorce.
Although Kahn admitted that he had failed to pay McNicholas any portion of the $14,488
that he was ordered to pay in the November 25, 2015 order, Kahn argued that the order and the
underlying rule to show cause should be vacated because McNicholas and her attorney
intentionally misrepresented that the payment obligations at issue were spousal support rather
than monetary awards. Citing Brown v. Brown, 5 Va. App. 238, 246, 361 S.E.2d 364, 368
(1987), Kahn argued that monetary awards such as the payment obligations at issue in this case
were “the equivalent of [money judgments] and must be satisfied as such.” As the payment
obligations at issue could only be enforced in the same manner as money judgments, Kahn
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contended that the circuit court “lacked authority to order mandatory payment subject to
enforcement by its contempt powers.” Id. at 247, 361 S.E.2d at 369. Kahn also requested the
circuit court to impose sanctions against McNicholas and her attorney in the amount of $15,000.
McNicholas admitted that she was not entitled to receive alimony or spousal support
under the terms of the parties’ PSA.3 She explained, however, that her use of the term “spousal
support” in the petition for the rule to show cause was scrivener’s error attributable to Kahn’s use
of that term in the parties’ final decree of divorce. Regardless of whether Kahn’s payment
obligations were characterized as spousal support or monetary awards, McNicholas maintained
that the circuit court could enforce the terms of its final decree incorporating the parties’ PSA
through its contempt power.
The circuit court held Kahn in contempt of court for his willful failure to pay McNicholas
$14,488 pursuant to the November 25, 2015 order and the parties’ final decree of divorce.
Although the circuit court imposed a ten-day jail sentence, that sentence was conditioned on
Kahn’s failure to make the payment to McNicholas within thirty days. After the circuit court
held Kahn in contempt, Kahn responded that he would not make the payment due to a promise
that he made to his father and because he lacked adequate financial resources at the time.4 This
appeal followed.
II. ANALYSIS
On appeal, Kahn contends that the circuit court erred by holding him in contempt of
court. Based on Brown, Kahn argues that the monetary awards at issue in the present case could
3
McNicholas actually made these admissions in the brief she filed in response to Kahn’s
appeal of the November 25, 2015 order. Kahn quoted these admissions in the written pleadings
he filed with the circuit court, and emphasized them in his oral argument before the circuit court
by quoting sections of the brief.
4
The record does not establish whether or not Kahn was actually incarcerated for his
failure to make the payments at issue.
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not be enforced through the circuit court’s contempt power. He also contends that the circuit
court erred by failing to dismiss the rule to show cause issued against him and impose sanctions
against McNicholas and her attorney based on their intentional misrepresentations regarding the
nature of the payment obligations at issue in this case. We disagree with both of Kahn’s
arguments.
A. THE CIRCUIT COURT DID NOT ERR BY HOLDING KAHN IN CONTEMPT OF
COURT BASED ON HIS FAILURE TO COMPLY WITH THE NOVEMBER 25, 2015
ORDER AND THE FINAL DECREE OF DIVORCE
“Contempt is defined as an act in disrespect of the court or its processes, or which
obstructs the administration of justice, or tends to bring the court into disrepute.” Epps v.
Commonwealth, 47 Va. App. 687, 708, 626 S.E.2d 912, 921 (2006) (en banc) (quoting Carter v.
Commonwealth, 2 Va. App. 392, 396, 345 S.E.2d 5, 7 (1986)). “Any act which is calculated to
embarrass, hinder, or obstruct the court in the administration of justice is contempt.” Carter, 2
Va. App. at 396, 345 S.E.2d at 7-8.
The power to punish for contempt is inherent in, and as ancient as,
courts themselves. It is essential to the proper administration of
the law, to enable courts to enforce their orders, judgments and
decrees, and to preserve the confidence and respect of the people
without which the rights of the people cannot be maintained and
enforced.
Id. at 395, 345 S.E.2d at 7 (quoting In re Chadwick, 67 N.W. 1071, 1072 (1896)). “A court has
discretion in the exercise of its contempt power.” Petrosinelli v. People for the Ethical
Treatment of Animals, Inc., 273 Va. 700, 706, 643 S.E.2d 151, 154 (2007). “[T]hus[,] we
review the exercise of a court’s contempt power under an abuse of discretion standard.” Id.
In the present case, the PSA incorporated into the parties’ final decree of divorce clearly
required Kahn to pay McNicholas a lump sum of $40,000. Pursuant to the PSA, Kahn was
obligated to make monthly payments of $2,500 to McNicholas until he had paid her the entire
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$40,000. The PSA also required Kahn to reimburse McNicholas for her medical insurance
premiums.
Kahn did not contest that he failed to pay McNicholas pursuant to their PSA during the
contempt proceedings in the circuit court, and he does not do so on appeal. Rather, Kahn
maintains that the circuit court lacked the authority to enforce the payment obligations set forth
in the PSA through its contempt power due to the nature of the obligations. As the payment
obligations constituted monetary awards instead of spousal support, Kahn contends that the
obligations could only be enforced as money judgments. Kahn’s argument is misplaced.
Monetary awards that arise in the context of a divorce differ from other monetary
judgments. They compensate a party for his or her rights, equities, and interests in marital
property. When a monetary award is included in a separation or property settlement agreement,
it oftentimes also provides compensation for the waiver of a party’s right to receive spousal
support. In light of this unique context, two statutes addressing the consequences of the
dissolution of a marriage, Code §§ 20-109.1 and 20-107.3, provide circuit courts with the
authority to enforce monetary awards through their contempt power.5
Code § 20-109.1 addresses the “[a]ffirmation, ratification and incorporation” of the terms
of a separation or property settlement agreement into a decree of divorce. That statute states, in
pertinent part:
Any court may affirm, ratify and incorporate by reference in its . . .
decree of divorce . . . any valid agreement between the parties, or
provisions thereof, concerning the conditions of the maintenance
of the parties, or either of them and the care, custody and
maintenance of their minor children, or establishing or imposing
any other condition or consideration, monetary or nonmonetary.
5
While the circuit court did not specifically address Code §§ 20-109.1 and 20-107.3, we
note that issues involving statutory construction are reviewed de novo on appeal. See Virginia
Dep’t of Health v. Kepa, Inc., 289 Va. 131, 139, 766 S.E.2d 884, 888 (2015).
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. . . Where the court affirms, ratifies and incorporates by reference
in its decree such agreement or provision thereof, it shall be
deemed for all purposes to be a term of the decree, and
enforceable in the same manner as any provision of such decree.
Code § 20-109.1 (emphasis added).
“The purpose of [Code § 20-109.1] is to facilitate enforcement of the terms of an
incorporated agreement by the contempt power of the court.” Morris v. Morris, 216 Va. 457,
459, 219 S.E.2d 864, 866-67 (1975); see also Smith v. Smith, 41 Va. App. 742, 747, 589 S.E.2d
439, 441 (2003). “When a marriage fails, public policy favors prompt resolution of disputes
concerning . . . the property rights of the parties.” Morris, 216 Va. at 459, 219 S.E.2d at 867. By
ensuring that incorporated agreements are enforceable through the circuit court’s contempt
power, Code § 20-109.1 promotes that policy by encouraging parties to divide their assets
through “[v]oluntary, court-approved agreements.” Id.
In the present case, the parties’ PSA was expressly affirmed, ratified, and incorporated
into their final decree of divorce. Therefore, it was enforceable in the same manner as any other
provision contained in a final divorce decree. Accordingly, the circuit court could enforce the
terms of the PSA through its contempt power pursuant to Code § 20-109.1.
Alternatively, the circuit court could have enforced its final decree of divorce pursuant to
Code § 20-107.3. Code § 20-107.3 provides the statutory framework regarding the equitable
distribution of the property and debts of divorcing parties. Code § 20-107.3(D) allows circuit
courts to grant monetary awards to either party based on “the equities and the rights and interests
of each party in the marital property,” and other factors listed in another subsection of the statute.
Notably, Code § 20-107.3(D) specifically provides that a monetary award “entered pursuant to
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this subsection shall constitute a judgment within the meaning of [Code] § 8.01-426 and . . . may
be enforceable in the same manner as any other money judgment.”6
While Code § 20-107.3(D) allows monetary awards to be enforced as monetary
judgments, Code § 20-107.3(K)(2) provides another method of enforcement. That subsection
states, in pertinent part, that:
The court shall have the continuing authority and jurisdiction to
make any additional orders necessary to effectuate and enforce any
order entered pursuant to this section, including the authority to . . .
[p]unish as contempt of court any willful failure of a party to
comply with the provisions of any order made by the court under
this section . . . .
Code § 20-107.3(K)(2). Accordingly, Code § 20-107.3(K)(2) provides additional statutory
support for the enforcement of monetary awards through the circuit court’s contempt power. See
also Code § 20-115 (expressly allowing the circuit court to order the incarceration of a
contemnor for his or her willful failure or refusal to comply with any order entered pursuant to
Code § 20-107.3).
Despite the statutory authorization for the enforcement of monetary awards through the
circuit court’s contempt power contained in Code §§ 20-109.1 and 20-107.3, Kahn maintains that
monetary awards are only enforceable as money judgments. He bases this argument on Brown.
In Brown, this Court noted that:
A distinct difference . . . exists between a spousal support award
and a monetary award made pursuant to Code § 20-107.3. Spousal
support involves a legal duty flowing from one spouse to the other
by virtue of the marital relationship. By contrast, a monetary
award does not flow from any legal duty, but involves an
6
Code § 8.01-426 states, in pertinent part: “A decree . . . requiring the payment of
money, shall have the effect of a judgment for . . . money, and be embraced by the word
‘judgment,’ where used in this chapter or in Chapters 18, 19 or 20 of this title or in Title 43.”
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adjustment of the equities, rights and interests of the parties in
marital property.
Brown, 5 Va. App. at 246, 361 S.E.2d at 368.
Based on this distinction, this Court held that “to the extent a decree awards a monetary
sum pursuant to Code § 20-107.3(D), it is the equivalent of a money judgment and must be
satisfied as such.” Id. (emphasis added). Although this Court explained that the circuit court
was authorized to fix a date upon which the monetary award at issue was due and payable, it
determined that the circuit court lacked authority to order mandatory payment of the monetary
award “subject to enforcement by its contempt powers.” Id. at 247, 361 S.E.2d at 369.
The Brown decision predates the express statutory authority permitting the enforcement
of equitable distribution decisions through the circuit court’s contempt power provided in Code
§ 20-107.3(K). While this Court decided Brown in 1987, subsection (K) was added to Code
§ 20-107.3 in 1991. See 1991 Va. Acts 698.
Moreover, the holding in Brown upon which Kahn relies has been superseded by an
amendment to Code § 20-107.3(D), the subsection of the statute addressing monetary awards. In
2010, the General Assembly amended Code § 20-107.3 by adding the following sentence to
subsection (D): “An award entered pursuant to this subsection may be enforceable in the same
manner as any other money judgment.” See Code § 20-107.3(D) (emphasis added); 2010 Va.
Acts 506. The inclusion of the permissive term “may” in the amendment overruled the holding
in Brown at issue in this case.7 While Brown held that a monetary award must be enforced in the
7
Although the legislation from the House of Delegates introducing the amendment
originally stated “An award entered pursuant to this subsection shall be enforceable in the same
manner as any other money judgment[,]” see H.B. 377, 2010 Gen. Assemb., Reg. Sess. (Va. Jan.
12, 2010) (emphasis added), the legislation was amended by the Senate to strike the term “shall”
and insert the term “may,” see H.B. 377, 2010 Gen. Assemb., Reg. Sess. (Va. March 13, 2010).
The House of Delegates then unanimously agreed to the Senate’s amendment, and Code
§ 20-107.3(D) was amended to state that “An award entered pursuant to this subsection may be
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same manner as a money judgment, Code § 20-107.3(D) states that a monetary award may be
enforced in the same manner as a money judgment. Thus, as amended, Code § 20-107.3 allows
monetary awards to be enforced as money judgments or through any other method provided by
the statute, including enforcement through the circuit court’s contempt power pursuant to Code
§ 20-107.3(K)(2).
Although Kahn also cites Brown for the proposition that a monetary award is materially
different than a spousal support obligation, we note that spousal support obligations are enforced
in a similar manner to monetary awards. Spousal support obligations may be enforced through
the court’s contempt power. See, e.g., Code § 20-115; West v. West, 126 Va. 696, 700, 101 S.E.
876, 878 (1920). Such obligations, however, also create judgments by operation of law as they
become due and unpaid, and may be enforced by any proceeding generally available to enforce
money judgments. See Code § 20-78.2; Adcock v. Commonwealth ex rel. Houchens, 282 Va.
383, 388-89, 719 S.E.2d 304, 307-08 (2011). Similarly, child support obligations may be
enforced through contempt proceedings or as money judgments as they become due and unpaid.
See, e.g., Code §§ 20-115, 20-78.2; Adcock, 282 Va. at 388-89, 719 S.E.2d at 307-08.
Pursuant to Code §§ 20-109.1 and 20-107.3, the circuit court could enforce the terms of
the PSA incorporated into the parties’ final decree of divorce by holding Kahn in contempt of
court. As aptly stated by the Supreme Court in 1926, “Courts are invested with the power and
charged with the duty of enforcing their decrees. Such decrees are the mandates of the law, and
courts must have the power of enforcing them, if organized society is to be maintained.” Branch
v. Branch, 144 Va. 244, 251-52, 132 S.E. 303, 305-06 (1926). In the present case, Kahn was not
enforceable in the same manner as any other money judgment.” See 2010 Va. Acts. 506. This
legislative history illustrates that the General Assembly expressly intended to use the permissive
term “may” in the 2010 amendment to Code § 20-107.3(D), and thereby allow monetary awards
to be enforced as monetary judgments or through other methods.
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held in contempt “simply to enforce the payment of the money, but to punish for the willful
disobedience of a proper order of a court of competent jurisdiction.” Id. at 251, 132 S.E.2d at
305 (quoting West, 126 Va. at 699, 101 S.E. at 877).
In summary, we conclude that the circuit court did not err by holding Kahn in contempt
of court for his willful failure to comply with the November 25, 2015 order and the payment
obligations set forth in the parties’ PSA and incorporated into their final decree of divorce. The
circuit court was entitled to enforce the payment obligations through its contempt power under
both Code §§ 20-109.1 and 20-107.3.8
B. THE CIRCUIT COURT DID NOT ERR BY REFUSING TO DISMISS THE RULE TO
SHOW CAUSE AND IMPOSE SANCTIONS BASED ON THE ALLEGED
MISREPRESENTATIONS OF McNICHOLAS AND HER ATTORNEY
In his second assignment of error, Kahn contends that the circuit court erred by failing to
dismiss the rule to show cause issued against him and impose sanctions on McNicholas and her
attorney based on their misrepresentations concerning the nature of the payment obligations at
issue in this case. Kahn argues that McNicholas and her attorney intentionally misrepresented
that the payment obligations at issue were spousal support rather than monetary awards. As
Kahn was not obligated to pay spousal support to McNicholas pursuant to the parties’ PSA,
Kahn claims that the circuit court should have dismissed the rule to show cause issued against
him and imposed sanctions pursuant to Code § 8.01-271.1. We disagree.
8
We note that this Court previously held that monetary awards may be enforced through
a circuit court’s contempt power in at least two unpublished opinions: Custis v. Custis, No.
2899-07-1, 2008 Va. App. LEXIS 275 (Va. Ct. App. June 10, 2008), and Knott v. Painter, No.
0983-97-4, 1998 Va. App. LEXIS 231 (Va. Ct. App. Apr. 21, 1998). While these unpublished
decisions have no precedential value, we cite them here as informative decisions pursuant to
Rule 5A:1(f).
Additionally, we note that this Court addressed the use of a circuit court’s contempt
power to enforce a provision in a property settlement agreement incorporated into a final decree
of divorce that required a party to provide health insurance to his former spouse in McCoy v.
McCoy, 55 Va. App. 524, 687 S.E.2d 82 (2010).
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Code § 8.01-271.1 states, in pertinent part, that “[t]he signature of an attorney or party
[on a pleading, motion or other paper] constitutes a certificate by him that (i) he has read the
pleading, motion, or other paper [and] (ii) to the best of his knowledge, information and belief,
formed after reasonable inquiry, it is well grounded in fact . . . .” Code § 8.01-271.1 allows the
circuit court to impose sanctions on an attorney or party who signs a pleading in violation of this
rule.
In reviewing a trial court’s [decision regarding the imposition of]
sanctions under Code § 8.01-271.1, we apply an abuse of
discretion standard. In applying that standard, we use an objective
standard of reasonableness in determining whether a litigant and
his attorney, after reasonable inquiry, could have formed a
reasonable belief that the pleading was well grounded in fact . . . .
Flippo v. CSC Assocs. III, 262 Va. 48, 65-66, 547 S.E.2d 216, 227 (2001).
Under the circumstances of this case, we conclude that the circuit court did not abuse its
discretion by refusing to dismiss the rule to show cause issued against Kahn and impose
sanctions on McNicholas and her attorney based on their characterization of the payment
obligations. When viewed with the terms of the parties’ final decree of divorce, McNicholas’s
description of the payment obligations as spousal support was not unreasonable.
Initially, we note that the use of the term “spousal support” in McNicholas’s petition did
not prejudice Kahn. While the petition erroneously referred to “spousal support” rather than a
“monetary award,” it clearly identified the payment obligations that McNicholas requested the
circuit court to enforce.9 It stated that Kahn was obligated to pay McNicholas $2,500 per month
from September 15, 2013, through December 15, 2014, pursuant to the parties’ final decree of
divorce. It also stated that Kahn was responsible for the payment of McNicholas’s medical
9
Unlike McNicholas’s petition, the rule to show cause issued by the circuit court did not
refer to the payment obligations at issue as “spousal support.” It simply commanded Kahn to
appear and explain his failure to comply with the terms of the parties’ final decree of divorce.
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insurance premiums pursuant to the same order. The petition then claimed that Kahn failed to
make the required payments for six months, and requested the circuit court to enforce the terms
of the parties’ final decree of divorce by ordering Kahn to make the payments. These allegations
provided enough information to enable Kahn to file detailed written responses opposing them
and reasoned argument in two hearings before the circuit court.
Furthermore, we find that McNicholas’s use of the term “spousal support” in her petition
was consistent with the language of the parties’ final decree of divorce. Although Kahn and
McNicholas expressly waived any rights to receive alimony or spousal support in their PSA,
their final decree of divorce described Kahn’s payment obligations as “spousal support.”
Specifically, the final decree referred to Kahn’s payment obligations as “spousal support”
throughout the section of the order setting forth the notices required by various statutes.10 Based
on these references, McNicholas’s use of the term “spousal support” to describe Kahn’s payment
obligations could be viewed as an attempt to maintain consistency with the final decree of
divorce rather than an intentional misrepresentation designed to mislead the circuit court.
McNicholas’s conduct throughout the litigation also supports the conclusion that her
misrepresentations were not intentional. McNicholas explained that the reference to the payment
obligations as “spousal support” was an error arising from the use of that term in the parties’
final decree of divorce. McNicholas then expressly clarified that she was not entitled to receive
alimony or spousal support payments under the terms of the PSA or the parties’ divorce decree.
Throughout the proceedings, McNicholas consistently argued that Kahn should have been held
in contempt of court for his failure to make the payments required by the PSA incorporated into
10
We acknowledge that Kahn explained that he described his payment obligations as
“spousal support” because he relied on a form obtained from a circuit court law clerk to draft the
final divorce decree. We also note, however, that Kahn was a licensed attorney who chose to
undertake the drafting of the decree at issue and represent himself in this matter.
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the parties’ final decree of divorce, regardless of whether they were referred to as “spousal
support” or a “lump sum” monetary award.
Given the ambiguity created by the characterization of the payment obligations as
“spousal support” in the final decree of divorce drafted by Kahn, McNicholas’s erroneous use of
the term “spousal support” in her petition was reasonable. “[T]here is nothing in Code
§ 8.01-271.1 that gives a trial judge authority to impose monetary sanctions . . . [for] an
inadvertent mistake.” Ragland v. Soggin, 291 Va. 282, 292, 784 S.E.2d 698, 703 (2016). As the
characterization of the payment obligations as spousal support was grounded in the terms of the
parties’ final decree of divorce, McNicholas consistently acknowledged that the reference to the
payment obligations as spousal support was in error, and Kahn was not prejudiced by the
mistake, we conclude that the circuit court did not err by refusing to dismiss the rule to show
cause or impose sanctions against McNicholas and her attorney based on their characterization of
the payment obligations at issue in this case.
III. CONCLUSION
In summary, we hold that the monetary awards set forth in the parties’ PSA and
incorporated into their final decree of divorce were enforceable through the circuit court’s
contempt power pursuant to Code §§ 20-109.1 and 20-107.3. Accordingly, we conclude that the
circuit court did not err by holding Kahn in contempt of court for his willful failure to comply
with its November 25, 2015 order and the terms of the parties’ PSA as incorporated into their
final decree of divorce. Additionally, we conclude that the circuit court did not err by refusing to
dismiss the rule to show cause issued against Kahn and impose sanctions against McNicholas
and her attorney based on their characterization of the payment obligations at issue in this case.
For these reasons, we affirm the circuit court’s decision.
Affirmed.
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