Stuart M. Bergman v. Janice L. Bergman , 25 Va. App. 204 ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia
STUART M. BERGMAN
v. Record No. 1876-96-3
JANICE L. BERGMAN
OPINION BY
JUDGE SAM W. COLEMAN III
JANICE L. BERGMAN JULY 15, 1997
v. Record No. 1948-96-3
STUART M. BERGMAN
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Martin F. Clark, Jr., Judge
Philip G. Gardner (Gardner, Gardner, Barrow &
Sharpe, P.C., on briefs), for Stuart M.
Bergman.
H. Morgan Griffith for Janice L. Bergman.
The issue in these appeals is whether the trial court erred
in interpreting the terms "reside" and "cease" when construing
the spousal support provision of the parties' separation
agreement. Both parties appeal the trial court ruling. We hold
that the trial court erred in finding that the word "reside" was
an ambiguous term requiring the admission of parol evidence.
Further, we hold that the evidence failed to prove that the
former wife violated the "reside" provision in the separation
agreement. Finally, we hold that the trial court erred in
finding that the word "cease" was ambiguous and interpreting that
term in the agreement to mean "temporarily suspend."
Accordingly, we reverse the trial court's decision.
FACTS
In April 1989, Stuart and Janice Bergman entered into a
property settlement agreement in which Mr. Bergman agreed to pay
spousal support in an amount equal to twenty-five percent of his
salary up to $160,000 and twenty percent of his salary, including
bonuses, that exceeded $160,000. The paragraph of the agreement
in controversy stated, "[s]pousal maintenance and support shall
cease in the event Janice L. Bergman resides with a male person
to whom she is not married excluding immediate relatives such as
her father or a brother or male child." (Emphasis added). The
trial court ratified, confirmed and approved the agreement and
incorporated certain provisions, including the spousal support
provision, into the final divorce decree.
In 1994, Mr. Bergman filed a petition to terminate spousal
support based on the foregoing provision of the settlement
agreement. He alleged that Janice Bergman was residing with a
male to whom she was not married.
At the hearing on Mr. Bergman's petition, Mr. Bergman
presented evidence that he had observed a man at his former
wife's home on several occasions. Mr. Bergman then hired a
private investigator, who began surveillance of Janice Bergman's
home to determine whether the man was "residing" with her. The
combined surveillance by Mr. Bergman and the investigator lasted
several years. During that time, the man's vehicle and Janice
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Bergman's vehicle were seen at the same location, either at her
home or his home, late at night on numerous occasions. Mr.
Bergman introduced into evidence detailed notes and a calendar
chronicling the dates and times on which he and the investigator
observed that the man "spent the night" with Janice Bergman.
Janice Bergman confirmed that the truck seen at her home by
her former husband and the investigator was that of a male friend
whom she dated. She testified that they had a dating
relationship and acknowledged that they had spent nights together
but only on intermittent weekends. When the man stayed
overnight, he slept in her room. Janice Bergman testified that
her friend did not keep his clothing or toiletries at her home
and did not have a key to her house. Further, her male friend
did not receive mail at her house, nor did they have a joint post
office box. Janice Bergman further testified that she and the
man never helped each other financially and that she did not use
his truck and he did not use her car. Janice Bergman refuted
several of the investigator's entries, stating that she and her
friend were out of town together at a time when, according to the
investigator's notes, the investigator had purportedly observed
their cars moving between the two houses.
The man's brother and sister, who lived with him at their
parents' home, testified that he had moved into a bedroom in the
basement of their parents' home in July or August of 1993. His
sister testified that he usually had dinner with the family and
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rarely spent the night away from their home. The man's father
testified that his son did not spend the night away from home
often and that he did not pay rent or contribute to household
expenses.
The man's employer testified that, due to the nature of his
job in the maintenance department for Glass Dynamics, he was
subject to being called to work at any time. However, the man
never gave Janice Bergman's address or telephone number to his
employer. Instead, he gave his home and his parents' home phone
numbers and addresses.
The parties' son, Robert, lived at home with his mother
until he went to college in 1994. He testified that, although
his mother and the man had a dating relationship, the man kept no
clothing or personal effects at his mother's home. The only item
in the house that the son could recall that belonged to the man
was a broken shop vacuum kept in the garage. While Robert was
living at home, the man stayed at the house, at most, three or
four nights per month and never two nights in a row. Robert also
testified that the investigator's notes concerning the man's
staying at the house during the weekend of December 4, 1993 were
incorrect because he recalled being home alone studying.
The trial judge ruled that the term "reside" as used in the
settlement agreement was ambiguous; therefore, the judge received
parol evidence to determine the parties' intent when using the
term, "reside." After receiving the evidence, the trial judge
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ruled that the term "reside" as used in the agreement meant:
that either party would move into the home of
the other a significant amount of clothing or
personal property[,] . . . that the parties
would spend more than four nights . . .
together per calendar month under the same
roof with each other[,] . . . that the
parties would spend more than two consecutive
nights together under the same roof, that
would exclude vacations and out-of-town
trips[, and] . . . that a party received mail
or had a phone listing or made a significant
economical or nonmonetary contribution to the
home or the residence of the other . . . .
The judge found that, based upon the evidence presented, the man
was "residing" with Janice Bergman in violation of the settlement
agreement provision. The trial judge then interpreted the term
"shall cease" in the same provision to mean that spousal support
would be suspended while Janice Bergman was "residing" with an
unrelated male but would be reinstated once she was no longer
"residing" with "a male person" other than her father, brother,
or male child.
ANALYSIS
Property settlement agreements are contracts subject to the
same rules of formation, validity, and interpretation as other
contracts. Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593,
595 (1986); Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d
796, 799 (1985). "Extrinsic evidence can be admitted to explain
an ambiguity in a document. However, the ambiguity must be
apparent on the face of the instrument." Cohan v. Thurston, 223
Va. 523, 525, 292 S.E.2d 45, 46 (1982). A contract term is not
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ambiguous merely because the parties disagree as to the term's
meaning. Ross v. Craw, 231 Va. 206, 212-13, 343 S.E.2d 312, 316
(1986); Smith, 3 Va. App. at 513-14, 351 S.E.2d at 595. Rather,
the question of whether a writing is ambiguous is a matter of
law, not of fact. Langman v. Alumni Ass'n of the Univ. of
Virginia, 247 Va. 491, 498, 442 S.E.2d 669, 674 (1994); Wilson v.
Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984). "Thus,
we are not bound by the trial court's conclusions on this issue,
and we are permitted the same opportunity as the trial court to
consider the contract provisions." Tuomala v. Regent University,
252 Va. 368, 374, 477 S.E.2d 501, 505 (1996).
"It is the function of the court to construe
the contract made by the parties, not to make
a contract for them. The question for the
court is what did the parties agree to as
evidenced by their contract. The guiding
light in the construction of a contract is
the intention of the parties as expressed by
them in the words they have used, and courts
are bound to say that the parties intended
what the written instrument plainly
declares."
Wilson, 227 Va. at 187, 313 S.E.2d at 398 (quoting Meade v.
Wallen, 226 Va. 465, 467, 311 S.E.2d 103, 104 (1984)).
"In construing the terms of a property settlement agreement,
just as in construing the terms of any contract, we are not bound
by the trial court's conclusions as to the construction of the
disputed provisions." Smith, 3 Va. App. at 513, 351 S.E.2d at
595 (citations omitted); Hedrick v. Hedrick, 3 Va. App. 452, 455,
350 S.E.2d 526, 528 (1986). "[I]f all the evidence which is
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necessary to construe a contract was presented to the trial court
and is before the reviewing court, the meaning and effect of the
contract is a question of law which can readily be ascertained by
this court." Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d
342, 346 (1987).
We hold that the term "reside," as used by the parties in
this contract, is not ambiguous. No other provisions in the
contract render the term confusing or ambiguous. The contract
does not evidence any intent that the word was used in a special
way or was intended to have a meaning other than its ordinary
meaning. Thus, in construing and enforcing the provision of the
agreement we apply the plain meaning of the term, "resides with."
Smith, 3 Va. App. at 514, 351 S.E.2d at 595-96 ("When the terms
of a disputed provision are clear and definite, it is axiomatic
that they are to be applied according to their ordinary meaning.
. . ."). In common usage, to "reside" is "[to] settle oneself or
a thing in a place, to be stationed, . . . to dwell permanently
or continuously, [to] have a settled abode for a time, [to] have
one's residence or domicile." Webster's Third New International
Dictionary 1931 (1981). 1
1
Stuart Bergman argues that "reside" is capable of being
interpreted in more than one way, rendering the term ambiguous.
Although "reside" is not synonymous with "resident" or
"residence," the definition of those terms supports our holding
that "reside" is not an ambiguous term. To "reside" is to be a
"resident" or have a "residence" as those terms have been
interpreted by Virginia courts. Virginia cases interpreting the
terms "residence" and "resident" have generally given the terms
their plain meaning. See Long v. Ryan, 71 Va. (30 Gratt.) 718
(1878) (conflict of laws case interpreting "residence" to mean a
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Thus, the factors that determine whether a person "resides"
with another, as that term is used in the parties' agreement,
include determining whether the persons are living together on a
continuous or frequent basis with some degree of permanency,
whether they have clothing and/or personal belongings in the same
home or residence, whether they receive mail or frequent phone
calls at each other's home, whether they contribute to the
payment of bills or make significant nonmonetary contributions to
the home, and whether they intend the home to be their residence.
Unlike the term "cohabit," the term "reside" does not encompass
consideration of the personal relationship between the
individuals. See Schweider v. Schweider, 243 Va. 245, 248, 415
S.E.2d 135, 137 (1992); Frey v. Frey, 14 Va. App. 270, 273, 416
S.E.2d 40, 42 (1992). Thus, no proof of an intimate relationship
would be necessary to prove that Janice Bergman was "residing"
with an unrelated male. Furthermore, the length of time that a
(..continued)
place "to abide, to sojourn, to dwell . . . permanently or for a
length of time[,] . . . as contradistinguished from the mere
temporary locality of existence"); Smith v. Smith's Ex'r, 122 Va.
341, 94 S.E. 777 (1918) (same); Griffin v. Woolford, 100 Va. 473,
41 S.E. 949 (1902) (same). Although the terms "resident" and
"residence" have been interpreted to have the same meaning as
"domicile" for purposes of the election laws and tax laws, see
Dotson v. Commonwealth, 192 Va. 565, 66 S.E.2d 490 (1951)
(election laws); Talley v. Commonwealth, 127 Va. 516, 103 S.E.
612 (1920) (tax laws), the contract in this case contains nothing
to indicate an intent by the parties that the term "reside" be
given any meaning other than its ordinary one. Compare USAA Cas.
Ins. Co. v. Henley, 251 Va. 177, 181, 465 S.E.2d 791, 793 (1996)
(giving special meaning to the term "resident of the household"
as compared to "resident"); Allstate Ins. Co. v. Patterson, 231
Va. 358, 361, 344 S.E.2d 890, 892 (1986) (same).
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person lives at a particular location is but one factor that
governs whether the person "resides" at a location. Accordingly,
we look to the circumstances of each case to determine whether
one person "resides with" another.
Under the facts of this case, the evidence failed to prove,
as a matter of law, that Janice Bergman was residing with the man
she was dating. He did not have clothing, toiletries, or
personal belongings at Janice Bergman's home. In addition, he
did not have a key or access to her home. No evidence proved
that he spent time there while Janice Bergman was away, as a
person who "resides" at the home would have done. See Pendleton
v. Pendleton, 918 P.2d 159, 160 (Utah 1996). No evidence was
presented that the man intended to "reside with" Janice Bergman.
In fact, the evidence indicated that he was no more than a
frequent overnight visitor during the two year period that they
dated. Thus, we hold that the trial court's finding that Janice
Bergman was "residing with" the man is not supported by the
record.
Turning to the trial court's ruling concerning the term
"shall cease" in the parties' agreement, we hold that the trial
court erred in finding that the term meant "temporarily suspend."
"'[C]ourts cannot read into contracts language which will add to
or take away from the meaning of the words already contained
therein.'" Henderlite v. Henderlite, 3 Va. App. 539, 541, 351
S.E.2d 913, 914 (1986) (quoting Wilson v. Holyfield, 227 Va. 184,
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187, 313 S.E.2d 396, 398 (1984)). "Where there is no ambiguity
in the terms of a contract, we must construe it as written, . . .
and we are not at liberty to search for the meaning of the
provisions beyond the pertinent instrument itself." Smith, 3 Va.
App. at 514, 351 S.E.2d at 595-96.
At the hearing, neither party contended that the term "shall
cease" was ambiguous and no parol evidence was introduced as to
what the parties intended when they used the term. The term
"shall cease" is not ambiguous; its meaning is clear and certain.
The contract provides that spousal support "shall cease" in the
event of death of either party, the remarriage of Janice Bergman,
or in the event she should reside with a male person to whom she
is not married other than relatives, such as a father, brother,
or son. As the term is used, it is clear that the parties
intended "shall cease" to mean "end permanently."
For the foregoing reasons, we reverse the trial court's
decision and hold that Stuart Bergman failed to prove a change in
condition under the terms of the parties' settlement agreement.
Accordingly, we dismiss the case.
Reversed and dismissed.
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