David J. Senechal v. Carol F. Senechal ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
DAVID J. SENECHAL
MEMORANDUM OPINION * BY
v. Record No. 0514-97-1 JUDGE RICHARD S. BRAY
NOVEMBER 18, 1997
CAROL F. SENECHAL
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerome James, Judge
Barry Kantor (Christie & Kantor, on brief),
for appellant.
F. Sullivan Callahan for appellee.
David J. Senechal (husband) appeals a decree of the trial
court which modified spousal and child support payable by husband
to his former wife, Carol F. Senechal (wife), in accordance with
the court's construction of the parties' earlier stipulation
agreement. Husband complains that the court erroneously revised
spousal support contrary to the provisions of the agreement and
the terms of the related final decree of divorce. We agree and
reverse the disputed order.
The parties are conversant with the record, and we recite
only those facts necessary to a disposition of the appeal.
It is uncontroverted that the parties prepared and executed
an "AGREEMENT FOR DIVORCE SETTLEMENT," dated December 30, 1990,
which purported to resolve, inter alia, issues of child custody,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
visitation, and child and spousal support. The agreement
expressly provided that "child support . . . will be based on the
computations from the income of both parties" and "[s]pousal
support will be the difference between $1,300 per month and the
computed monthly child support . . . ."
Husband and wife were divorced by final decree of the trial
court entered on March 1, 1991, at which time two of four
children born to the marriage remained unemancipated. The decree
expressly referenced the "Stipulation Agreement" of the parties
and ordered that its terms be "ratified and confirmed and
incorporated into and made a part of [such] decree." The divorce
decree further specified that, "pursuant to the Stipulation
Agreement . . . [husband] pay unto [wife] the sum of [$906.29]
per month as child support" and "the sum of [$393.71] per month
as spousal support . . . ." 1 Counsel for both parties endorsed
the decree, "We ask for this," without exception or appeal.
The decree in dispute arose from husband's petition of
August 23, 1995, to modify the divorce decree, seeking a
reduction of child support to reflect the emancipation of one
child. The trial court determined that the parties' agreement
"unambiguous[ly]" required husband to pay wife a "total amount of
support . . . [of] $1,300 per month with the child support
payment to be determined by the statutory guidelines . . . [and]
the difference being spousal support." The court, therefore,
1
Manifestly, these awards aggregate $1,300 per month.
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reduced the child support but ordered an attendant increase in
spousal support sufficient to maintain a combined monthly award
to wife of $1,300. Husband appeals, arguing that the court was
without both authority and jurisdiction to modify the spousal
support award fixed in the divorce decree "pursuant" to the terms
of the agreement.
It is well established that
[w]hen parties contract concerning their
property, spousal support, and related
aspects of their affairs and file the
contract with the court before entry of the
divorce decree, "no decree or order directing
the payment of support and maintenance for
the spouse, suit money, or counsel fee or
establishing or imposing any other condition
or consideration, monetary or non-monetary,
shall be entered except in accordance with
that . . . contract."
Kaplan v. Kaplan, 21 Va. 542, 548, 466 S.E.2d 111, 114 (1996)
(quoting Code § 20-109). However, "[m]odification of child
support remains with the court regardless of a contract between
the parties." Parillo v. Parillo, 1 Va. App. 226, 231, 336
S.E.2d 23, 26 (1985); Code § 20-108. Hence, in acting on
husband's petition, the court was free to modify his child
support but was restricted by the stipulation agreement with
respect to spousal support.
Husband's spousal support obligation to wife was specified
by the trial court in the final decree of divorce at $293.71 per
month "pursuant" to the formula devised by the parties and set
forth in their agreement, a part of such decree. Thus, any
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ambiguity in the construction and application of the formula was
resolved by the decree upon terms acceptable to both parties, all
of which became final twenty-one days after entry. Rule 1:1; see
Rook v. Rook, 233 Va. 92, 94-95, 353 S.E.2d 756, 758 (1987);
Wilson v. Holyfield, 227 Va. 184, 198, 313 S.E.2d 398 (1984)
(citation omitted) (construction of agreement is controlled by
intention of parties). Under such circumstances, revision by the
trial court of the agreed spousal support award of $293.71 per
month was proscribed by Code § 20-109.
Accordingly, we reverse that portion of the decree which
modified spousal support and remand the proceedings for entry of
a decree consistent with this opinion.
Reversed and remanded.
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