Christopher J. R. Whitney v. Babette C. Whitney ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
CHRISTOPHER J. R. WHITNEY
MEMORANDUM OPINION * BY
v. Record No. 2267-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 2, 2001
BABETTE C. WHITNEY
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John Richard Alderman, Judge
Terrence R. Batzli (Ann Brakke Campfield;
Barnes & Batzli, P.C., on briefs), for
appellant.
Donald K. Butler (Robert G. Cabell, Jr., on
brief), for appellee.
Christopher J.R. Whitney (husband) appeals the final order of
the trial court confirming the commissioner in chancery's report
and affirming, ratifying and incorporating into the final decree
"[t]he contract between the parties" and an order for judgment
entered August 20, 2000. He contends: (1) the trial court erred
on December 16, 1998 when it held that the parties had entered
into a valid written agreement; (2) the commissioner and trial
court erroneously ruled they were bound by Judge Taylor's December
16, 1998 ruling as to the validity of the contract; and (3) the
trial court and commissioner "erred in finding that the parties
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
had entered into a valid agreement" when the evidence before the
commissioner "demonstrated there had been no agreement and no
meeting of the minds." We affirm the decision of the trial court.
I. BACKGROUND
The parties were married on December 29, 1971. They
separated on February 14, 1997. Prior to the separation, the
parties entered into a reconciliation agreement entitled
"Agreement and Stipulation" (the agreement). Using a document
typed by wife's attorney, the parties met without counsel on three
occasions between August 1996 and February 1997 to discuss and
modify the agreement. During their meetings, the parties made
handwritten additions and deletions, which they initialed.
Husband and wife signed the final agreement. On March 18, 1997,
wife filed a bill of complaint seeking a divorce. The bill of
complaint stated that the parties entered into a reconciliation
agreement in August of 1996 and asked the court to "adopt,
incorporate by reference and make the provisions thereof part of
any decree" of the court. Husband filed an answer contending "the
Agreement was signed during a time when [husband] was under severe
emotional distress and [husband] will request that the alleged
Agreement be deemed null and void."
Section 4 of the agreement contained the following
provisions:
(a) Husband agrees that he will pay child
support under the guidelines then in effect
in the Commonwealth of Virginia;
- 2 -
* * * * * * *
(d) In the event the parties separate,
Husband shall pay to Wife spousal support &
child support in an amount to be no less
than Thirty Five Hundred Dollars per month
beginning the month the parties separate.
Some language had been stricken and initialed, and the
specific language "& child support" was added and initialed by
the parties.
THE JUNE 10, 1997 TRIAL COURT HEARING
Judge Taylor presided over a June 10, 1997 pendente lite
hearing at which husband's attorney made the following
representation:
Your Honor, I've had an opportunity,
obviously, to discuss at great length with
my client concerning this case. In our
crossbill, we were disputing this agreement
in that it was at the time signed in it
appears to be a hotly contested time for
both of them, but after further talking with
my client, the reason he signed the
agreement was to make the wife feel
comfortable as far as what he should be
paying in child and spousal support. So I'm
here to say that we stipulate to the
contract. We're not arguing this contract
is not valid after talking further with my
client. I think the point that we're
arguing is that it is a valid agreement and
that it contains absolutely everything in
there concerning child support, spousal
support, attorney fees, distribution of the
property. . . . [A]nd I mean I'm assuming
that since they attached it to the bill of
complaint that they felt it was a valid
agreement, and if it's a valid agreement,
then we've got all of the issues that have
already been wrapped up in this case and
there's no purpose for today's hearing.
- 3 -
* * * * * * *
And if they're here arguing that this
paragraph does not read this, then we don't
have an agreement at all and then we're
going to have to litigate everything in this
case whereas it's our position that
everything has been handled in this
separation agreement. It clearly says child
support in the paragraph. It clearly says
$3500.00 as far as what the parties have
agreed to. And I think 2109 [sic] is very
specific. Once they've got a contract, and
this is a valid contract, everything has
been taken care of in this case.
(Emphasis added.)
Wife's attorney indicated some concern over the inclusion
of child support twice in the agreement, once in subsection 4(a)
and again in subsection 4(d). Husband's attorney advised the
trial court that "the child support was inserted, presumably, by
the husband and if you will notice, everything else that has been
changed is initialed by both parties." Wife's attorney contended
that the handwritten notation "& child support" in subsection
4(d) "was never agreed to and that the typed portion [of
subsection 4(a)] is operative." The trial court was reluctant
to allow any changes to the agreement, stating "the change of
one paragraph throws the whole agreement in dispute."
Husband's attorney stated, "Your Honor, we're standing here
ready to abide by this agreement."
The trial judge tried to limit the issues before him,
stating:
- 4 -
I'm not worried about who's at fault or
anything. If you're asking me to interpret
this agreement, then I'm trying to tell you
that the agreement is there and can be
interpreted. Now, how it falls down to
actual figures, I don't know, but that will
certainly be determined in about looking
about her need and his abilities, like you
do in any spousal support.
The parties testified regarding needs, expenses and ability
to pay as well as each party's understanding as to the language in
the agreement. Husband contended the agreement limited wife to
receive no more than $3,500 per month for spousal and child
support combined, and wife argued that the agreement was for her
to receive no less than $3,500 per month in spousal support in
addition to the guidelines amount of child support.
The trial court entered a pendente lite order that same day
directing husband to pay the monthly mortgage on the marital home,
$646 in child support and $3,000 in spousal support, an amount not
less than $3,500 as stated in paragraph 4. Husband's attorney
signed the order "Seen and Objected as to amount of support not in
accordance with Separation Agreement."
THE NOVEMBER 25, 1998 TRIAL COURT HEARING
On November 25, 1998, the parties again appeared before Judge
Taylor. Husband, who discharged his earlier attorney, Mr. Harris,
and retained new counsel, Mr. Batzli, moved for the entry of a
final decree of divorce. Wife requested that husband be required
to show cause why he should not be held in contempt for
- 5 -
transferring property in a manner contrary to the trial court's
June 10, 1997 pendente lite order.
Wife did not object to the entry of the final decree of
divorce as long as the trial court affirmed, ratified and
incorporated the agreement into the final decree. At that time,
husband challenged the validity of the agreement. Mr. Batzli
stated,
I'm not prepared to say it's a valid
agreement but he certainly doesn't waive any
argument that he's got today that he can't
put on before the Commissioner . . . . So
it may be valid. I don't know that yet.
But I'm asking that the Court not include
that as a valid contract today if the Court
sees fit to enter the final decree and refer
the matter to Mr. Ganey.
The trial court ruled as follows:
THE COURT: I will put in the Order that I
rule that the contract was valid but I
refused to interpret it because we were here
on a pendente lite argument. All of it is
stated in the transcript of the hearing.
Okay?
[WIFE'S ATTORNEY]: Yes, sir.
[HUSBAND'S ATTORNEY]: Yes, sir.
On December 16, 1998, the trial court entered a final decree.
The decree contained the following:
It appearing that the parties have entered
into a valid written agreement dated August
of 1996, a copy of which was filed with the
Bill of Complaint, it is hereby ORDERED, as
provided by § 20-109.1 Va. Code Ann., that
the provisions of the agreement are to be
interpreted by the Commissioner in Chancery.
- 6 -
Husband signed the order and objected "for the reasons
noted in the record including, but not confined to the fact that
there was no meeting of the minds between the parties and
consequently, there can be no valid contract."
HEARINGS BEFORE AND FINDINGS BY THE COMMISSIONER
The February 1999 Hearing and the April 1999 Interim Report
The parties appeared before the commissioner in chancery on
January 18, 1999 and February 19, 1999 to interpret the terms of
the agreement and determine the amount of spousal support and
child support and attorneys' fees. During the February 19
hearing, husband for the first time charged wife with deleting
portions of the agreement after they had signed and initialed it.
He never raised these allegations by pleading. 1 Specifically, he
testified that they signed and initialed everything at their
second meeting and that, following that meeting, wife crossed
through the statement in subparagraph 4(d) that after one year,
the $3,500 figure would be reduced to $2,500. According to
husband, he told wife during the third visit that "once she made
th[at] change, we didn't have any contract." At the hearing,
husband also testified that his understanding of subparagraph 4(d)
1
We note that in husband's answer, he states in paragraph 4
the only basis for voiding the agreement to be "[t]he defendant
denies the allegations of paragraph 6 of the Bill of Complaint
and affirmatively states that the Agreement was signed during a
time when defendant was under severe emotional distress and
defendant will request that the alleged agreement be deemed null
and void." See Rule 1:4(d) and (g).
- 7 -
was that he would be paying no more than $3,500 in combined child
and spousal support and no more than $2,500 in combined support
after one year.
Wife disagreed with husband and testified they initialed and
signed the agreement at the third meeting.
The commissioner filed an interim report on April 15, 1999,
in which he found no ambiguity in the agreement.
A plain reading of paragraphs 4(a) and
4(d) reveals that [husband] is to pay child
support pursuant to the guidelines, i.e.,
$646.00, and an amount of spousal support,
when combined with the child support, shall
be no less than $3,500.00 a month.
It is clear that the agreement
anticipates possible changes in the child
support and obviously anticipates possible
changes in spousal support, however, it is
your Commissioner's determination and
finding that regardless of these changes the
total of each element (child support and
spousal support) each month is to be no less
than $3,500.00.
(Emphasis added.)
The commissioner noted "that much of [husband's] argument
[went] to the validity of the contract." Because that issue was
not before him, the commissioner explained that he was required
to make his "ruling based on the agreement itself." No evidence
was presented regarding valuation, "income," "the factors to be
considered for spousal support," attorneys fees or costs; so the
commissioner directed the parties to schedule a hearing in the
future to address those issues.
- 8 -
The September 1999 Hearings
In September 1999, the commissioner conducted two
additional hearings. On September 3, 1999, the parties
introduced a report from a CPA regarding equitable distribution
which the parties agreed would be the basis for the equitable
distribution award. On September 24, 1999, wife submitted an
affidavit from a local attorney who reviewed the costs and fees
and who opined as to their reasonableness.
On November 24, 1999, the commissioner conducted a hearing
on husband's motion to reconsider. Husband questioned the
reasonableness of certain fees and costs. The commissioner
denied husband's motion.
The Final Report
In April of 2000, the commissioner completed his final
report. He noted that the issues in the decree of reference
"were addressed and reported" in the April 15, 1999 interim
report. After hearing and reviewing the evidence, the
commissioner found the fees and costs reasonable and directed
husband to pay them.
THE JULY 6, 2000 TRIAL COURT HEARING
On July 6, 2000, husband and wife appeared before a
different circuit court judge. Wife moved the trial court to
adopt and confirm the commissioner's report. Husband's attorney
argued for an opportunity to litigate and present evidence as to
the validity of the agreement, specifically, whether the parties
- 9 -
agreed to the interlineations in the agreement, who had
possession of the final version of it and whether there were
"any interlineations made after the last party initialed it."
Wife explained to the trial court that she and husband, through
his former attorney, stipulated to the validity of the agreement
at the June 10, 1998 pendente lite hearing.
After hearing argument, the parties furnished the trial
court with transcripts of the June 10, 1997 pendente lite
hearing before Judge Taylor and the February 19, 1999 ore tenus
hearing before the commissioner. The trial court took the
matter under advisement.
By letter opinion dated July 18, 2000, the trial court
ruled that husband was bound by "the concessions made on 10 June
1997." The trial court then confirmed the commissioner's report
"to the extent he determined child support and spousal support
to be limited to $3500 as the lowest limit."
II.
Appellate courts in Virginia look "with favor upon the use
of stipulations . . . which are designed to narrow the issues
and expedite the trial or settlement of litigation." McLaughlin
v. Gholson, 210 Va. 498, 500, 171 S.E.2d 816, 817 (1970). The
Supreme Court of Virginia has held that a stipulation
contemplates "an agreement between counsel respecting business
before a court." Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d
917, 920 (1951).
- 10 -
Although an attorney at law has no authority to compromise
his client's claim without consent, he "has full authority to
act on behalf of his client in the conduct of litigation before
the court, including making admissions and factual
stipulations." Snyder-Falkinham v. Stockburger, 249 Va. 376,
381-82, 457 S.E.2d 36, 39 (1995). "Absent a challenge to the
authority of an attorney to make them, stipulations are
definitive of issues." Bauer v. Harn, 223 Va. 31, 36, 286
S.E.2d 192, 194 (1982). "If the stipulation was agreed to there
can be no objection to it." Burke, 193 Va. at 137, 67 S.E.2d at
917. The court will not accept the stipulation if it is merely
a legal argument or was an admission not intended to be
conceded. Gudnason v. Life Ins. Co. of North America, 231 Va.
197, 204, 343 S.E.2d 54, 58-59 (1986).
Credible evidence supports the trial court's finding that
husband stipulated to the validity of the agreement. In the
instant case, at the June 10, 1997 hearing, husband's first
attorney stated, "I'm here to say that we stipulate to the
contract. We're not arguing that this contract is not valid
after talking further with my client . . . . [E]verything has
been handled in this separation agreement." Wife's counsel
responded, "Well we've stipulated it and we've agreed the
agreement is fine. It's just a matter of interpreting the
agreement." Later, after wife's attorney alleged that one
provision of the agreement had been altered and was not agreed
- 11 -
upon by the parties and the judge interpreted the clause
consistent with husband's contention, husband's attorney agreed
again that they stipulated to the agreement. Husband signed the
trial court's order as "Seen and Objected as to amount of
support not in accordance with Separation Agreement." At no
time during this hearing did husband or his attorney allege that
wife had altered the agreement or was this alleged in any
pleading. In fact, husband testified each party "made additions
to the agreement and scratch-outs and everything but [both]
initialed everything in the agreement."
Additionally, by March 1997, husband possessed a copy of
the agreement because it was attached to the bill of complaint
filed at that time. After having months to review the finalized
agreement, husband and his attorney characterized it as valid at
the June 1997 hearing. Neither husband nor his attorney ever
argued that wife had deleted portions without his knowledge or
approval. The record belies any suggestion that the repeated
representations made by husband and his attorney were
inadvertent statements not intended to bind him or that husband
was unaware of the ramifications of his representation, namely,
that he was agreeing to the validity of the agreement.
Moreover, husband's repeated representations that the agreement
was valid constituted husband's acknowledgment that there was a
meeting of the minds between himself and his wife. The record
- 12 -
clearly supports the trial court's finding that the agreement
was valid.
As to husband's additional argument that the evidence
proved there was no contract, husband is precluded from making
that argument after repeatedly avowing that it was valid. "'No
litigant . . . will be permitted to approbate and reprobate--to
invite error . . . and then to take advantage of the situation
created by his own wrong.'" Manns v. Commonwealth, 13 Va. App.
677, 680, 414 S.E.2d 613, 615 (1992) (quoting Fisher v.
Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988)).
Husband cannot ascribe error to the trial court's decision that
the agreement was valid after he and his attorney made repeated
representations as to its validity upon which the trial court
relied. See id. at 679, 414 S.E.2d at 615. Additionally,
husband never raised by pleading any defense other than duress
which he abandoned. See Rule 1:4(d) and (g).
Accordingly, the trial court did not err in relying on the
party's representations to find the agreement to be valid, in
confirming the commissioner's report and in valuing the parties'
property according to their agreement. For the foregoing
reasons, the decision of the trial court is affirmed.
Affirmed.
- 13 -