Billie Paxton Einselen v. Peter C. Einselen

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
BILLIE PAXTON EINSELEN
MEMORANDUM OPINION * BY
v. Record No. 1778-96-1 JUDGE RICHARD S. BRAY
FEBRUARY 25, 1997
PETER C. EINSELEN
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Robert E. Long (Robert E. Long, Ltd., on
brief), for appellant.
John F. Rixey (Rixey and Rixey, on brief),
for appellee.
Billie Paxton Einselen (wife) complains on appeal that the
trial court erroneously declined to order Peter C. Einselen
(husband) to pay spousal support and her entire attorney's fee
related to these proceedings and to obtain two policies of
insurance on his life, all in accordance with a stipulation
agreement of the parties. On cross-appeal, husband contends that
the trial court lacked jurisdiction to consider spousal support,
and erroneously awarded wife a portion of her attorney's fee and
costs. We find no merit in husband's arguments but conclude that
the court should consider wife's petition for spousal support and
require husband to provide the disputed insurance coverage. The
subject decree is, therefore, affirmed in part and reversed in
part, with the unresolved issues remanded to the trial court for
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
adjudication, including consideration of attorney's fees and
costs attendant to such remand.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I. Spousal Support
A. Jurisdiction
Husband contends that the trial court was without
jurisdiction to consider spousal support because the issue was
not addressed in the original divorce decree. Although the
decree makes no mention of spousal support, it "confirmed,
ratified and approved" the parties' property settlement
agreement, "incorporat[ing] [it] by reference into [the] final
decree of divorce." Thus, all provisions of the agreement became
"for all purposes . . . a term of the decree [itself], . . .
enforceable in the same manner as any provision of such decree."
Code § 20-109.1; see also Fry v. Schwarting, 4 Va. App. 173,
178-79, 355 S.E.2d 342, 345 (1987). Paragraph 8 of the agreement
provides that the parties "reserve the right to request a Court
of competent jurisdiction to award an amount for support in the
future as the needs and resources of the parties may justify to
the extent that either Husband or Wife would be entitled to such
support as a matter of law," clearly preserving the court's
jurisdiction to adjudicate spousal support upon certain future
circumstances.
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Husband's contention that wife otherwise relinquished in the
agreement "any and all rights of whatsoever kind and character
growing out of the marriage relationship" is also without merit.
The agreement is subject to the same principles of construction
which govern all contracts. See, e.g., id. at 180, 355 S.E.2d at
346. Generally, "the provisions of a contract should be
construed together and those which appear to conflict should be
harmonized whenever it is reasonably possible." Chantilly
Constr. Corp. v. Department of Highways & Transp., 6 Va. App.
282, 293, 369 S.E.2d 438, 444 (1988) (quoting Seward v. American
Hardware Co., 161 Va. 610, 626, 171 S.E. 650, 659 (1933)).
"[A]ny apparent inconsistency between a clause that is general
and broadly inclusive in character, and a clause that is more
specific in character, should be resolved in favor of the
latter." Id. at 294, 369 S.E.2d at 445. The parties specified
that the court retain jurisdiction over spousal support, and this
express intention controls.
B. Laches and Change in Circumstances
[L]aches or delay, in order to be effectual as a bar to
the party [against whose claim the defense of laches is
asserted], must be accompanied with circumstances and
facts showing an intention on his part to abandon the
[claim]. [The delay] must be unreasonable and
injurious to the other party.
Murphy v. Holland, 237 Va. 212, 215, 377 S.E.2d 363, 365 (1989)
(quoting Hamilton v. Newbold, 154 Va. 345, 351, 153 S.E. 681, 682
(1930)). Assuming, without deciding, that laches is a defense
available to husband in these proceedings, it is an affirmative
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shield which must be proven by him. See Princess Anne Hills
Civic League v. Susan Constant Real Estate Trust, 243 Va. 53, 58,
413 S.E.2d 599, 602 (1992).
Husband asserts that "[a]t no time in the period of twelve
years and eight months between the Final Decree of this suit [and
the filing of wife's petition for support] did [she] ever make
any claim for spousal support." However, wife obviously had no
viable claim to prosecute until the onset of her financial
reversals in 1990. See Meredith v. Goodwyn, 219 Va. 1025, 1029,
254 S.E.2d 74, 76-77 (1979) (laches cannot bar the claim of one,
without negligence, ignorant of his or her rights); cf. Murphy,
237 Va. at 216, 377 S.E.2d at 365 (laches not applicable to
minor's claim until minor attains the age of majority).
Accordingly, the defense must be assessed in the context of those
circumstances which occurred between the commencement of wife's
misfortunes in 1990 and the filing of the instant petition for
support.
The commissioner made no explicit finding that wife intended
to abandon her right to future spousal support. Rather, he
suggested that "[husband] was justified in believing [wife] had
abandoned her claim of her own choice." However, the record
reflects no conduct which evinced such intent. Following loss of
employment, wife attempted to continue support of herself,
working at several positions, while seeking other employment and
drawing upon her retirement accounts. She pursued spousal
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support from husband only in financial desperation.
Moreover, wife's conduct visited no prejudice on husband
but, to the contrary, was to his financial advantage. Husband
does not claim, and the record does not disclose, that time
compromised relevant evidence or otherwise impaired his defense
to wife's claim. See id. The record surely does not support
husband's generalized claim of financial misdirection
attributable to wife's delay. If husband was concerned that his
economic future might prove incompatible with spousal support, he
should have limited such contingent liability by appropriate
provision in the agreement.
With respect to wife's entitlement under the agreement to
seek judicial resolution of the spousal support issue, we, again,
are guided by paragraph 8. While the provision initially
requires "Husband [to] pay nothing to the Wife for her support
and maintenance," each "reserve[d] the right to request a Court
of competent jurisdiction to award . . . support in the future as
the needs and resources of the parties may justify to the extent
that either . . . would be entitled to such . . . as a matter of
law." Thus, to invoke the court's jurisdiction, wife was
required to establish a material change in her financial needs or
husband's resources, or both. See, e.g., Moreno v. Moreno, ___
Va. App. ___, ___, ___ S.E.2d ___, ___ (Feb. 11, 1997).
In denying wife's petition, the court approved the
commissioner's finding that wife's diminished income did not
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constitute a material change in circumstances because she simply
"returned . . . to the [original] circumstances she agreed to and
voluntarily chose," a conclusion clearly unsupported by the
evidence. Wife became fully employed in 1981, nearly
coincidental with her execution of the agreement and before entry
of the divorce decree. Her subsequent unemployment resulted in
significant economic hardships, with attendant circumstances much
different than those which prevailed in January, 1982. In
contrast, husband's income increased from approximately $30,000
annually in 1981 and 1982 to $200,000 in 1991 and $375,000-
$400,000 in 1994. Such evidence demonstrates a significant
material change in the parties' circumstances as a matter of law.
II. Insurance
A. Standing
In order to have standing to sue, a plaintiff must show
"'that he has a justiciable interest in the subject matter in
litigation; either in his own right or in a representative
capacity.'" Lynchburg Traffic Bureau v. Norfolk & W. Ry. Co.,
207 Va. 107, 108, 147 S.E.2d 744, 745 (1966) (citation omitted).
Here, contrary to the findings of both the commissioner and the
court, wife had standing to judicially pursue husband's covenant
to maintain the insurance coverage on his life, both for the
benefit of the parties' children and herself.
B. Laches
Again, assuming, without deciding, that laches is a defense
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available to wife's right to seek enforcement of the insurance
provisions of the agreement, husband's evidence does not
establish the bar. Wife's cause of action did not accrue until
husband breached the agreement by failing to maintain the
policies, and nothing in the record suggests she knowingly
delayed pursuit of her remedies, without excuse and to the
prejudice of husband. Husband's reliance on extrinsic evidence
to establish the purpose of the policies was inadmissible to
upset the plain language of the agreement. Wife is entitled to
enforcement of the agreement in accordance with its terms, and we
remand for the trial court to order husband to replace the
policies in compliance with the agreement. See, e.g., Smith v.
Smith, 3 Va. App. 510, 513-14, 351 S.E.2d 593, 595-96 (1986).
III. Attorney's and Commissioner's Fees
Husband contends that the trial court erroneously required
him to pay wife $3,000 in attorney's fees related to a real
estate dispute resolved prior to the hearing and to satisfy the
entire commissioner's fee. The commissioner found that, although
"both parties attempted to bring about a settlement to [sic] the
requirements of [the property settlement agreement,] . . . the
resolution of the differences would not have occurred had not
[wife] caused this petition to be filed and pursued." The
agreement provided that if wife should prevail in "proceedings to
enforce any of the terms of [the property settlement agreement],"
husband would "pay the reasonable attorney's fees, court costs
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and expenses incurred by the Wife." Thus, the agreement clearly
contemplated husband's payment of the disputed fees and costs.
"An award of attorney's fees is a matter submitted to the trial
court's sound discretion and is reviewable on appeal only for an
abuse of discretion." Graves v. Graves, 4 Va. App. 326, 333, 357
S.E.2d 554, 558 (1987). We find no abuse of discretion in this
instance. Governed by the same rationale, we also affirm the
assessment of the commissioner's fee against husband.
Accordingly, we affirm the ruling of the trial court in
part, reverse in part, and remand for further proceedings
consistent with this opinion, including consideration of
additional attorney's fees and costs incidental thereto.
Affirmed in part,
reversed in part,
and remanded.
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