Terri Colby Barr v. Mark H. Barr ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, McClanahan and Senior Judge Willis
Argued at Chesapeake, Virginia
TERRI COLBY BARR
MEMORANDUM OPINION* BY
v. Record No. 0464-06-1 JUDGE D. ARTHUR KELSEY
NOVEMBER 28, 2006
MARK H. BARR
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
Peter V. Chiusano (Kimberly L. Stegall; Willcox & Savage,
P.C., on briefs), for appellant.
Barry Kantor (Christie, Kantor, Griffin & Smith, P.C., on
brief), for appellee.
On four grounds, Terri Colby Barr appeals the entry of a final divorce decree in this
case. The language of the final decree, she contends, demonstrates that the trial court erred by
misinterpreting a settlement agreement she entered into with her
husband, Mark H. Barr,
failing to declare the agreement unconscionable,
misconstruing the agreement as a full, rather than partial,
settlement of the contested equitable distribution issues, and
mischaracterizing the contractual spousal support obligation as
nonmodifiable.
Finding no merit in these assertions, we affirm.
I.
The parties married in 1972 and separated in 2002. Husband filed for a divorce, and wife
filed a cross-bill seeking the same end. While the divorce proceeding was pending, husband
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
voluntarily paid wife’s monthly expenses. The trial court entered no pendente lite orders. With
the parties’ consent, the trial court referred the case to a commissioner in chancery for an
evidentiary hearing.
The commissioner’s hearing lasted eight days. On the last day, the parties entered into a
handwritten settlement agreement addressing support and equitable distribution issues then
pending before the commissioner. Among other things, they agreed wife would live in the
marital home and husband would “reasonably maintain the marital home and property until the
mortgage is paid or Terri remarries whichever first occurs.” The spousal support provision
required husband to pay wife $5,000 a month for a little over eight years, “commencing”
September 1, 2005, and paralleling “the remaining term” of the mortgage. A separate clause
stated:
Mark agrees to assume all debt of the Parties as of the date of this
Agreement and ∧Terri’s normal monthly expenses as of September
1, 2005∧ except for the mortgage on the marital residence and the
“second” mortgage due to Shelia Colby. Terri will be responsible
for paying the “second” mortgage to Sheila Colby.
The crossed-out language, as well as the inserted italicized language, bore the initials of both
husband and wife. The commissioner read the agreement into the record and confirmed the
parties’ consent to its terms.
The commissioner reported the agreement to the trial court and recommended that it be
incorporated into the final divorce decree. Wife filed an objection to the commissioner’s report
and sought to set aside the agreement. She later withdrew this objection. The court then issued a
scheduling order, entitled “Notice to Submit Final Decree,” noting the absence of any objections
to the commissioner’s report and directing the parties to submit a final decree for entry.
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Wife responded by filing a “Motion to Enforce Agreement,” asserting husband had failed
to pay her “monthly household expenses” as the settlement required. The motion also argued
that, “to the extent” husband interpreted the settlement agreement otherwise, “there was no
‘meeting of the minds’ and there is no agreement.” Shortly thereafter, wife filed a second
motion entitled “Motion to Enforce Agreement and Request for Reimbursement.” This motion
again asserted her entitlement to “monthly household expenses” and added a request for
reimbursement of those expenses she had paid out of her own pocket.
At the hearing in the trial court, wife objected to husband’s proposed draft of a final
decree claiming it did not “track and mirror the actual language of the agreement.” “It’s not
necessarily the decree,” wife’s counsel explained, “it’s how the parties are now interpreting that
agreement, that’s the issue.” The disputed interpretation centered on the provision requiring
husband to “assume all debt of the Parties and Terri’s normal monthly expenses as of September
1, 2005.” (Emphasis added). Husband interpreted that provision to require that he pay all
accrued, but unpaid, debt and monthly expenses existing on September 1, 2005. Wife agreed the
provision required husband to pay all accrued, unpaid debt as of September 1, but contended her
unspecified monthly expenses must also be paid for an indefinite period commencing September
1 and continuing indefinitely thereafter.
In support of his interpretation, husband pointed out that he had been paying wife’s
monthly expenses since their separation without a pendente lite order requiring him to do so.
Entered into on August 2, 2005, the settlement agreement required husband to bring all unpaid
debt and expenses current as of September 1, 2005. Beginning on September 1, 2005, husband
noted, the agreement required him to pay support to wife in the amount of $5,000 a month for
just over eight years. In contrast to the debt-and-expenses provision, the support provision
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expressly required the $5,000 monthly payments for an agreed period “commencing” on
September 1, 2005.
For her part, wife claimed the text of the debt-and-expenses provision unambiguously
required husband to pay her unspecified monthly expenses in perpetuity. The phrase “as of”
really meant “commencing,” she argued. Thus, she interpreted the payment obligation to begin
on September 1, 2005, and to continue without any ending date. Wife’s counsel also argued that
if both parties interpreted the provision differently, then “there is no meeting of the minds and
there can’t be any contract.”
The trial court agreed with husband’s interpretation of the debt-and-expenses provision,
reading it as an unambiguous expression of the parties’ intent that husband pay all accrued,
unpaid debt and monthly expenses “as of” (that is, calculated on) September 1, 2005. The trial
court also observed that, “Just because the parties disagree doesn’t mean there is not a meeting of
the minds.” The trial court then entered husband’s draft of the proposed decree and denied
wife’s motions seeking to enforce the provision as she interpreted it.
II.
A. THE “AS OF” INTERPRETATION
On appeal, wife argues that the trial court erred as a matter of law because the plain
meaning of the unambiguous debt-and-expenses provision can only be interpreted as she
proposes. We disagree.
Under settled contract law principles, the dispute over the debt-and-expenses provision
presents three decisional alternatives: the plain meaning of the provision either clearly favors
wife’s interpretation, clearly favors husband’s interpretation, or clearly favors neither
interpretation because its ambiguous language can be reasonably interpreted in more than one
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way. See generally Vilseck v. Vilseck, 45 Va. App. 581, 588-91, 612 S.E.2d 746, 749-50
(2005); Smith v. Smith, 43 Va. App. 279, 287-88, 597 S.E.2d 250, 254-55 (2004). Of these
three, the least defensible interpretation is the one advocated by wife.
The phrase “as of” usually means “on” a certain date or “at” a certain time. See Black’s
Law Dictionary 109 (7th ed. 1999) (“On; at” ⎯ “to signify an effective legal date”); American
Heritage Dictionary 51 (4th ed. 2001) (“On; at”). The phrase does not necessarily denote “on” a
certain date or “at” a certain time and continuing indefinitely thereafter. Syntactic context may
supply that additional durational connotation. But, standing alone, the phrase “as of” does not
require it. The mere use of the “as of” phrase, therefore, does not unambiguously favor wife’s
interpretation and disfavor husband’s contrary view.
The larger contractual context likewise fails to provide an unambiguous durational
connotation for the debt-and-expenses obligation. As husband points out, the support provision
identifies the $5,000 monthly payment as a continuing obligation “commencing” September 1,
2005. Yet this word is conspicuously absent from the debt-and-expenses provision. Husband
also calls attention to the fact that the “monthly expenses” portion of the debt-and-expenses
provision was a negotiated interlineation added to a clause addressing only accrued, unpaid
marital debt ⎯ implying that the additional language was likewise referring to past monthly
expenses wife had incurred “as of” a certain date, rather than her ongoing expenses beginning on
that date and continuing indefinitely thereafter. The contextual whole, therefore, does not
provide the kind of textual clarity necessary for wife’s assertion that the plain meaning of the
debt-and-expenses provision unambiguously creates an indefinite duration.
We need not address whether the “as of” phrase can bear equally the interpretative
weight placed on it by the competing views advocated by wife and husband ⎯ thus making the
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trial court’s error not so much its final result but that, in reaching it, the court failed to appreciate
that the ambiguous nature of the provision required the consideration of extrinsic evidence. See,
e.g., Vilseck, 45 Va. App. at 589-90, 612 S.E.2d at 750 (finding such an argument persuasive).1
Wife does not make that argument on appeal. For appellate purposes, the only question
presented is whether the plain meaning of the debt-and-expenses provision, as a matter of law,
simultaneously endorses wife’s interpretation and excludes husband’s interpretation. We hold it
does not.
B. UNCONSCIONABILITY ⎯ “GROSS DISPARITY”
Wife asserts the settlement agreement should be deemed unconscionable because of the
“gross disparity” of the agreed-upon asset distribution, particularly when coupled with the trial
court’s interpretation of the debt-and-expenses provision. Wife points to nothing in the record,
however, demonstrating by “clear and convincing evidence,” Shenk v. Shenk, 39 Va. App. 161,
177, 571 S.E.2d 896, 904 (2002), that the disparity in the division of assets was accompanied by
husband’s “overreaching or oppressive influences.” Galloway v. Galloway, 47 Va. App. 83, 92,
622 S.E.2d 267, 271 (2005). Without such a showing, the agreement ⎯ no matter how the
debt-and-expenses provision is interpreted ⎯ cannot be disaffirmed as unconscionable. Id.
C. INCOMPLETENESS OF SETTLEMENT AGREEMENT
Wife also argues that the agreement was only a partial settlement of the equitable
distribution issues. The trial court’s final decree confirming the agreement and denying any
1
Given our ruling, we also do not decide whether wife made a sufficient proffer to
enable this issue to be decided on appeal. See generally Campbell v. Corpening, 230 Va. 45, 48,
334 S.E.2d 589, 591 (1985) (holding that party seeking an appellate remand for consideration of
“parol evidence” must “make a proffer” of such evidence).
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further relief, she contends, failed to address all the contested equitable distribution issues before
the court. As she concedes on appeal, however, wife did not specifically raise this argument
during the hearing before the trial court.2 Because the trial court never ruled on the issue, we
cannot do so for the first time on appeal. The purpose of the contemporaneous objection rule is
to “afford the trial court the ability to address an issue. If that opportunity is not presented to the
trial court, there is no ruling by the trial court on the issue, and thus no basis for review or action
by this Court on appeal.” Riverside Hospital, Inc. v. Johnson, 272 Va. ___, ___, ___ S.E.2d ___,
___ (2006); see also Riner v. Commonwealth, 268 Va. 296, 325, 601 S.E.2d 555, 571-72 (2004)
(holding that failure to request a ruling from the trial court, by itself, waives the issue on
appeal).3
D. MODIFIABILITY OF CONTRACTUAL SUPPORT
Finally, wife asserts that the final divorce decree erroneously characterized the
contractual support as nonmodifiable. Assuming arguendo wife preserved this issue in the trial
court, she failed to provide an adequate legal analysis of the topic to make it a legitimate debate
on appeal. Her briefs do not address any legal precedent on the subject or attempt to develop an
2
At oral argument on appeal, wife’s counsel conceded that “with respect to ED and
continuing ED” there was no “specific objection made, ‘Judge, you cannot enter this [final
decree] because there are other assets that have to be divided.’”
3
At the final hearing, the trial court entered the divorce decree and directed wife’s
counsel to “note [his] exceptions” next to his endorsement of the decree ⎯ referring, no doubt,
to those specific objections raised and ruled upon at the hearing. Eight days later, wife’s counsel
filed in the clerk’s office a document entitled “Mrs. Barr’s Objections to the Court’s Ruling and
Decree of Divorce.” Included among these objections were several that had never been raised at
the final hearing. The record contains no indication that wife’s counsel brought these new
objections to the court’s attention or sought a post-hearing ruling from the court on them. As a
means of preserving these issues for appeal, these after-the-fact objections are wholly ineffectual.
Only objections raised “at the time of the ruling” satisfy Rule 5A:18.
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analytically principled basis for the relief she seeks on appeal.4 Challenges to lower court
decisions “unsupported by argument, authority, or citations to the record do not merit appellate
consideration.” Epps v. Commonwealth, 47 Va. App. 687, 718, 626 S.E.2d 912, 926-27 (2006)
(en banc); Boyd v. County of Henrico, 42 Va. App. 495, 506 n.6, 592 S.E.2d 768, 773 n.6 (2004)
(en banc).
III.
We affirm the trial court’s interpretation of the property settlement agreement and find
no error in the entry of the final divorce decree.
Affirmed.
4
See, e.g., Newman v. Newman, 42 Va. App. 557, 568-69, 593 S.E.2d 533, 539 (2004)
(en banc) (“Absent equitable grounds warranting rescission, a contract cannot be judicially
modified or terminated at the unilateral request of a contract party unless the agreement
expressly authorizes such relief.”); see also Baldwin v. Baldwin, 44 Va. App. 93, 98-99, 603
S.E.2d 172, 174 (2004); Smith v. Smith, 41 Va. App. 742, 747, 589 S.E.2d 439, 441 (2003).
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