Cecil J. Childers v. Patricia Peverall Childers ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia
CECIL JENNINGS CHILDERS
MEMORANDUM OPINION * BY
v. Record No. 2659-98-3 JUDGE DONALD W. LEMONS
JUNE 29, 1999
PATRICIA PEVERALL CHILDERS
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Thomas W. Roe, Jr. (Spigle & Roe, P.C., on
brief), for appellant.
William L. Heartwell, III (Heartwell & Wills,
on brief), for appellee.
Cecil Jennings Childers appeals the Circuit Court of
Botetourt County’s order refusing to enforce a separation
agreement signed by the parties on the grounds that the
agreement had not been properly produced, that two conditions
subsequent to the agreement had not been met, and that the
parties had abandoned their agreement. Childers also argues
that the court erred by granting his wife a divorce on the
grounds of post-separation adultery, in finding that the
husband’s extramarital affairs had a negative effect upon the
wife’s health, by dividing the marital estate unequally, and by
awarding an excessive amount of spousal support. We hold that
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
although the trial court erred in finding that the separation
agreement had not been properly produced, the agreement was
unenforceable. We also affirm the divorce decree entered on the
grounds of the husband’s post-separation adultery, its division
of marital property and its award of spousal support.
I. BACKGROUND
Cecil Jennings Childers (“husband”), appellant, and
Patricia Peverall Childers (“wife”), appellee, were married in
1983. During the marriage, the wife discovered three
extramarital affairs of the husband. The wife forgave him for
all three affairs, until she discovered that he was continuing
his third affair. In December 1996, the parties agreed to
separate, but to remain in the marital home in separate
bedrooms. On December 13, 1996, the parties drafted and
executed an agreement (“Agreement”) that purported to
memorialize their living arrangements and divide certain marital
property. In April 1997, the husband moved out of the marital
home and began openly cohabiting with Sharon L. Sanders, his
paramour from the third affair.
On June 30, 1997, the wife filed a Bill of Complaint in the
Circuit Court of Botetourt County seeking a divorce. On
August 1, 1997, the husband filed an Answer and Cross-Bill. On
August 28, 1997, the court ordered the husband to pay
pendente lite spousal support in the amount of $819.50 per
month, less a credit of $219.50 as long as he made payments on
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the wife’s vehicle. On March 28, 1998, the court found the
husband in contempt for his failure to pay spousal support and
established arrearages at $900.
A formal hearing began on September 17, 1998 in the Circuit
Court of Botetourt County. The husband orally moved that the
Agreement be recognized by the court and incorporated into the
divorce decree. The court took the husband’s motion under
advisement, and the case proceeded as if no agreement existed.
By its two letter opinions, each dated September 25, 1998,
the court refused to enforce the Agreement, holding that it had
not been properly “produced,” that two conditions subsequent had
not been met, and that the parties had abandoned their contract.
The court granted the wife a decree of divorce based upon the
husband’s post-separation adultery, made an equitable
distribution award, and awarded spousal support to the wife.
The court’s findings were incorporated into the Final Decree of
Divorce, entered on October 20, 1998.
II. SEPARATION AGREEMENT
The parties executed the Agreement on December 13, 1996.
Following its execution, the Agreement remained in the exclusive
control of the wife. The Agreement stated that the parties
“agree to be separated,” living within the same physical
residence in separate bedrooms. The Agreement also provided
that upon the sale of the marital residence, the wife would
receive the first $30,000 of the proceeds. The husband agreed
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to purchase a vehicle for the wife, and the wife agreed to repay
a marital debt owed to Ed Gray. The remaining joint debts were
to be paid out of the surplus. In addition, both parties agreed
to show “respect” to the other, and not to bring third parties
into the home if doing so would “embarrass or upset” the other
party. The Agreement provided:
This agreement will be binding until a legal
document is drawn up by an attorney. This
is to protect both parties, both financially
and mentally.
The Agreement was typed by the wife and signed by both parties.
On appeal, the husband argues that the validity of the
Agreement is not in question on the basis of fraud, duress or
that its terms were unconscionable.
A. “Production” of the Agreement
The court found that the husband did not properly “produce”
the Agreement, stating,
The signed document was not produced before
the Court until 17 September 1998. This
cause was commenced by filing a bill of
complaint on 30 June 1997 and several
hearings have been conducted pendente lite.
The document is not pled in the bill. No
motions were ever made to produce the
agreement or to have the agreement adopted
pending litigation. The existence of the
document was not revealed to the court until
14.5 months after the litigation commenced.
Because he made an oral motion to have the Agreement
adopted at the beginning of the trial on September 17, 1998, the
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husband argues that the court erred in stating that there were
no motions made to adopt the agreement.
The husband cites Code § 20-109(C)in support of his
contention that he presented the Agreement in a timely manner.
Code § 20-109(C) states:
In suits for divorce . . . . if a
stipulation or contract signed by the party
to whom such relief might otherwise be
awarded is filed before entry of a final
decree, no decree or order directing payment
of support and maintenance for the spouse,
suit money, or counsel fee or establishing
or imposing any other condition, monetary or
nonmonetary, shall be entered except in
accordance with that stipulation or
contract. If such a stipulation or contract
is filed after entry of a final decree and
if any party so moves, the court shall
modify its decree to conform to such
stipulation or contract.
The statute requires the court to enforce any written
agreement filed with the court prior to its entry of the decree.
Here, the husband made an oral motion that the Agreement be
enforced on September 17, 1998, and attached the Agreement as an
exhibit. The entry of the final decree occurred on October 20,
1998.
Nothing in the statute requires the filing of the Agreement
in a specific motion; rather, the statute states only that the
Agreement must be “filed” with the court prior to the entry of
the final decree. Based upon Code § 20-109(C), we hold that the
court erred in finding that the Agreement had not been properly
“produced.”
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B. Abandonment
The trial court stated as one of its reasons for refusing
to enforce the Agreement:
The Court finds that the re-instituted
negotiation by Husband regarding the
disposition of the marital property through
his counsel constitutes an abandonment of
the agreement struck by Husband and Wife.
The signed document also was obviously
intended as an interim measure to be
formalized by a “legal document” which was
never drafted in conformity to the temporary
understanding between the parties. The
document also clearly contemplates the sale
of the marital home and no attempt at
marketing the house or forcing the sale
under the signing was made until well into
1998 after Husband had left the house and
moved in with his friend, and that attempt
at sale was, at best, a half-hearted attempt
unilaterally made by Wife. Husband could
have- but did not - move to force the sale
of the house.
The husband argues that the court’s reliance upon his
failure to draft a “legal document” in accordance with the
Agreement “defies the reality of the situation.” Given the
wife’s stated opposition to the enforcement of the Agreement,
the husband argues that it would have been impossible for him to
obtain the wife’s signature on the formalization of an agreement
that she sought to repudiate.
The husband also argues that any attempt he made to “force
the sale of the marital home” would have been fruitless for him
because the wife had taken the position that the Agreement was
not binding. Rather, the husband argues “[u]ntil such time as
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the court rejected the wife’s position that the [A]greement was
invalid, [he] had no reason to make repeated requests that the
wife comply with it.”
The husband also argues that the court erroneously relied
on his attempts to institute renegotiations with the wife as
evidence that he had abandoned the Agreement. The husband
contends that the only “major point of difference” was the
variance between the percentage of the home that the wife would
receive from the proceeds of the sale. The husband argues that
this variation cannot be considered an abandonment of his
earlier position.
In Hurt v. Hurt, 16 Va. App. 793, 433 S.E.2d 493 (1993), we
affirmed the trial court’s refusal to enforce the parties’
prenuptial agreement on the basis that it had been abandoned by
the husband. In Hurt, the husband and wife dated for a period
of time, lived together in the wife’s home, and became engaged.
The parties set a wedding date of June 4, 1983. See id. at 795,
433 S.E.2d at 495. On June 2, 1983, the husband gave the wife a
prenuptial agreement, with both of their attorneys present,
which the wife signed. The husband cancelled the wedding that
evening. See id. at 795, 433 S.E.2d at 495. After a period of
separation, the parties reconciled, and were married on May 20,
1984. The parties experienced marital discord, and the husband
filed for divorce. He argued that the prenuptial agreement
signed on June 2, 1983 controlled the parties’ property
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distribution. See id. at 796, 433 S.E.2d at 495-96. At the
pretrial hearing, the court ruled “the prenuptial agreement was
a valid agreement when signed; however, [the] husband
anticipatorily breached and repudiated the agreement.” Id. at
796, 433 S.E.2d at 495-96. The court considered his act of
calling off the wedding two days prior to the date “a clear act
of repudiation.” Id. at 798, 433 S.E.2d at 497. “[F]or a
repudiation of a contract to constitute a breach, the
repudiation must be clear, absolute, unequivocal, and must cover
the entire performance of the contract.” Id. at 798, 433 S.E.2d
at 496 (citation omitted).
We agreed with the trial court, stating:
[W]e view the evidence and all reasonable
inferences in the light most favorable to
[wife] the prevailing party below. Where,
as here, the courts hears the evidence
ore tenus, its finding is entitled to great
weight and will not be disturbed on appeal
unless plainly wrong or without evidence to
support it. The contemplated marriage
ceremony and consummation of the marriage
were crucial components of the parties’
agreement. The evidence proved that [the]
husband affirmatively refused to perform his
obligation under the agreement. From this
evidence, the fact-finder could properly
find that husband’s refusal was an
“unequivocal or positive expression of
abandonment” of the agreement or that his
conduct “evince[d] an intent wholly
inconsistent with the intention to perform”
his obligations under the prenuptial
agreement. . . . Accordingly, we affirm the
trial court’s judgment that the prenuptial
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agreement had been repudiated and,
therefore, was unenforceable.
Id. at 798, 433 S.E.2d at 497 (citations omitted).
Here, the actions of the husband constituted an abandonment
of the terms of the Agreement. First, the husband moved out of
the house before it was sold, in derogation of the terms of the
Agreement, in order to live with his paramour, Sanders.
Second, the husband requested in his Cross-Bill that the
court divide the property pursuant to Code § 20-107.3. A party
“will not be permitted to ‘approbate and reprobate’ at the same
time.” Noland v. Fowler, 179 Va. 19, 25, 18 S.E.2d 251, 254
(1941). On August 1, 1997, the husband filed a Cross-Bill in
which he requested that the court divide the property pursuant
to the equitable distribution statute. The Cross-Bill neither
mentioned the existence of the Agreement, nor requested that the
marital property be distributed according to its terms.
Requesting equitable distribution pursuant to Code § 20-107.3 is
inconsistent with claiming that a property settlement agreement
precludes equitable distribution.
Third, the husband attempted to negotiate a settlement with
the wife that differed from the terms of the Agreement. While
taking an alternate position in negotiations is not, by itself,
enough to prove repudiation of the Agreement, it is evidence
that may be considered by the court.
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Fourth, the husband did not assert the enforceability of
the Agreement until the day of the hearing, fourteen and
one-half months after the litigation began.
Fifth, the Agreement stated that the parties were not to
“bring anyone into this house that would embarrass or upset the
other party,” and that the parties must show “respect” to one
another. The husband also ignored this condition. The husband
moved out of the marital home and began residing with Sanders,
his paramour during the marriage, in spite of the “embarrassment
and upset” caused to the wife.
We cannot say that the trial court was plainly wrong or
without evidence to support its ruling that the parties had
abandoned the Agreement, and we need not address the husband’s
additional contentions with regard to the enforceability of the
Agreement.
III. DIVORCE GROUNDS
On appeal, husband argues that the trial court erred by
granting the wife a divorce on grounds of post-separation
adultery. The record reveals that husband’s objection to the
grounds for divorce was stated in a filing entitled “Objections
To The Court’s Rulings From The September 17, 1998 Hearing” as
follows:
The Court erred when it granted the
Complainant a divorce based on fault. The
evidence was that the Defendant had to leave
the Complainant due to her spending too much
money for financial reasons.
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Rule 5A:18 requires that objections to a trial court’s action or
ruling be made with specificity in order to preserve an issue
for appeal. See Campbell v. Commonwealth, 12 Va. App. 476, 480,
405 S.E.2d 1, 2 (1991) (en banc). A trial court must be alerted
to the precise “issue” to which a party objects. See Neal v.
Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525
(1992). Because no objection was made by husband that the
evidence was not sufficient to support the trial court’s finding
of post-separation adultery, we will not consider the issue on
appeal.
IV. EQUITABLE DISTRIBUTION
With respect to equitable distribution, the court stated,
The marital estate subject to
distribution has a value of $132,884.00. Of
that sum, 55 percent is awarded to Wife and
45 percent is awarded to Husband.
Husband is confirmed in ownership of
the Stoney Creek property and the Ford
pickup, if he so chooses. Wife is confirmed
in the ownership of the Mercury automobile,
if she so chooses.
* * * * * * *
Wife is drawing disability benefits.
Husband may draw a small pension ($378.00
per month) after October 2001. Given Wife’s
disability, the length of marriage, the
award above, and other factors, the Court
finds neither party is entitled to share in
the other’s deferred or disability benefits.
The husband argues that the court erred in awarding
fifty-five per cent of the marital estate to the wife. The
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husband states that the “trial court’s analysis of most of the
statutory factors shows no reason to prefer one party over the
other” and “the trial court committed reversible error by
accepting the wife’s testimony that the husband’s infidelity had
a negative effect on her health.”
“Virginia has no presumption in favor of an equal division
of the marital property.” O’Loughlin v. O’Loughlin, 20 Va. App.
522, 525, 458 S.E.2d 323, 324 (1995). “The amount and form of
any equitable distribution award are matters committed to the
sound discretion of the trial court, [but] any division or award
must be based on the parties’ equities, rights and interests in
the property.” Barker v. Barker, 27 Va. App. 519, 535, 500
S.E.2d 240, 247-48 (1998) (citations omitted). “On appeal, the
trial court’s award of equitable distribution will not be
reversed [u]nless it appears from the record that the [court]
has abused [its] discretion, that [it] has not considered or has
misapplied one of the statutory mandates, or that the evidence
fails to support the findings of fact underlying [its]
resolution of the conflict in the equities.” Luczkovich v.
Luczkovich, 26 Va. App. 702, 708, 496 S.E.2d 157, 160 (1998)
(citations omitted).
The wife testified that the husband gave her herpes and she
suffered from depression, fibromylagia, and chronic fatigue
syndrome. At trial, the husband argued that the wife should not
be permitted to testify about medical diagnoses. On appeal, the
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husband argues further that the court gave disproportionate
weight to the wife’s testimony that his actions had caused a
negative impact on her health. With respect to the wife’s
testimony about her illnesses:
The rule permitting lay or nonexpert
witnesses to testify to the apparent
physical condition of a person which is open
to ordinary observation by persons of common
experience does not extend to permit such
witnesses to testify as to the existence,
nature, or character of latent conditions or
to the existence of a particular disease
which is discoverable, or the nature and
character of which is determinable, only
through the peculiar experience, knowledge,
and training of a physician. Generally,
opinions of such (lay) witnesses are limited
to opinions as to physical condition.
Pepsi-Cola Bottling Co. v. McCullers, 189 Va. 89, 98, 52 S.E.2d
257, 260 (1949) (citations omitted). The trial court erred in
admitting the wife’s testimony regarding the diagnoses of her
illnesses.
However, the evidence was uncontested that the wife was on
full disability from her employer at the time of the hearing.
The wife testified that her disability resulted from the
husband’s actions and from the stress of his infidelities and
their unhappy marriage. The court found that the wife was
permanently disabled as a result of her suffering. We hold that
the court did not err in weighing the effects that the husband’s
actions had on the wife when making its equitable distribution
determination, and we affirm its equitable distribution order.
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V. SPOUSAL SUPPORT
The court ordered the husband to pay $550 per month to the
wife as spousal support, effective October 1, 1998. The husband
argues that the court could not award spousal support because
any award of spousal support is in conflict with the 1996
Agreement. In the alternative, the husband argues that if the
Agreement was not enforceable, the court erred in awarding an
excessive amount of spousal support.
Having previously determined that the Agreement was not
enforceable, we consider only whether the amount of the award
was excessive. “Whether to award spousal support and the
particular amount lies within the sound discretion of the trial
judge.” Jennings v. Jennings, 12 Va. App. 1187, 1196, 409
S.E.2d 8, 14 (1991). In reviewing an award of spousal support,
“[w]e view the evidence in the light most favorable to wife, the
prevailing party below.” Barker v. Barker, 27 Va. App. 519,
528, 500 S.E.2d 240, 244 (1998) (citations omitted). “[T]he
judgment of the trial court shall not be set aside unless it
appears from the evidence that such judgment is plainly wrong or
without evidence to support it.” Code § 8.01-680.
We hold that the court did not err in ordering the husband
to pay $550 per month in spousal support. At the time of the
hearing, the wife was receiving a disability award. The wife
introduced evidence that although her disability was permanent,
the disability award she was receiving was temporary. Evidence
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also revealed that the wife was making two mortgage payments,
while the husband was living in a rented home with Sanders.
Although the result of the court’s award was to provide the wife
with an income greater than the husband, the spousal support
award was not “plainly wrong” or “without evidence to support
it,” and we affirm the trial court’s decision.
VI. CONCLUSION
We hold that the court did not err in refusing to enforce
the Agreement and in granting the wife a divorce on the grounds
of the husband’s post-separation adultery. We affirm the
court’s equitable distribution order and its award of spousal
support.
Affirmed.
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