Harry E Milner, Jr v. Sheril L Milner

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Humphreys and Kelsey
Argued at Richmond, Virginia
HARRY E. MILNER, JR.
MEMORANDUM OPINION * BY
v. Record No. 1484-02-1 JUDGE D. ARTHUR KELSEY
MAY 6, 2003
SHERIL L. MILNER
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
Albert L. Fary, Jr. (Albert L. Fary, Jr.,
P.C., on briefs), for appellant.
Paul D. Merullo (Shuttleworth, Ruloff,
Giordano & Swain, P.C., on brief), for
appellee.
Harry E. Milner, Jr. contends that the trial court erred
when it incorporated the parties' separation agreement into the
final divorce decree and enforced a contractual support
obligation imposed by that agreement. Finding no error in the
trial court's decision, we affirm.
I.
When reviewing a chancellor's decision on appeal, we view
the evidence in the light most favorable to the prevailing
party, granting it the benefit of any reasonable inferences.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Wright v. Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704
(2002); Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256,
257 (1995).
Harry and Sheril Milner married in 1984. In 2000, the
couple decided to divorce and retained the services of a
mediator. On June 1, 2000, while in mediation, both parties
signed a separation agreement. Section I of the agreement
provided, in relevant part, that "Sherrie and Harry waive their
claims to spousal support." Section IV, entitled "Child Support
Agreement," declared that "Harry agrees to pay child support to
Sherrie" for the Milners' only son. This same provision
continued:
The "Shared Custody Virginia Child Support
Guidelines" have been calculated to have
Harry providing $294.65 monthly to Sherrie,
however, in the best interest of their
child, Harry and Sherrie have agreed to
deviate from the Guidelines, with Harry
offering to provide, and Sherrie agreeing to
accept, Three Hundred dollars ($300.00) for
child support, plus Seven Hundred dollars
($700) every month commencing June 1, 2000,
and continuing every month thereafter until
June 1, 2003 or said amount is modified by
the parties or a court of competent
jurisdictions.
(Emphasis added).
After paying for two months the full amount agreed under
Section IV, Mr. Milner decided he would no longer make the
additional $700-per-month payment. He sent an e-mail to his
wife stating, "I cannot continue to give you $700 every month
- 2 -
for your rent. The best that I can do is $350. This amount
plus child support, and my share of our combined debt, it is
still very reasonable." Mrs. Milner, responding by phone, asked
Mr. Milner to sign the agreement "null and void" because, as she
put it: "I said, because he is obviously not going to stick to
the agreement, that I wanted to meet with him and have him sign
the agreement stating that." Mr. Milner refused. Without the
benefit of counsel, Mrs. Milner assumed the agreement was "null
and void" simply because, as she explained it, Mr. Milner
stopped "paying me the money he was supposed to pay me."
About a month later, Mrs. Milner then retained counsel and
filed a bill of complaint for divorce requesting "support and
maintenance for herself and support for the minor child." She
also filed a motion for pendente lite relief requesting child
support and custody. Mr. Milner answered and filed a cross-bill
alleging that "the parties mutually agreed to separate on
February 9, 2000."
At a pendente lite hearing in November 2000, the parties
submitted an agreed decree setting Mr. Milner's child support
obligation at $362 a month pursuant to statutory guidelines.
The decree further indicated: "No support arrearages exist as
of the date of this Order." The form order included a paragraph
entitled "spousal support" in which the parties inserted "n/a"
in the open space for the dollar figure. The pendente lite
- 3 -
decree did not mention the $700 monthly payment obligation
imposed by the separation agreement.
At the commissioner's hearing in April 2001, Mr. Milner
submitted the separation agreement as an exhibit. He conceded
that at no time did the parties ever "in writing, revoke that
agreement." Mr. Milner testified that he stopped making the
$700 monthly payment, not because of any rescission of the
agreement, but because he "couldn't financially do it." Though
he attempted to renegotiate "something workable," Mrs. Milner
refused to release him from the obligation. He treated the
$700-per-month obligation as "null and void" because he "was
under the impression that once the papers were filed, that it
starts over. I don't know. I'm not an expert."
Mr. Milner also conceded that, under the terms of the
agreement, he was obligated to pay child support and "an
additional payment of 700 [sic] every month, commencing June 1st
of 2000." In consideration, Mrs. Milner explained, she waived
any further right to seek spousal support. Throughout his
testimony, Mr. Milner acknowledged the distinction between the
$300-per-month child support payment and the additional
$700-per-month payment (the "rent thing" as he called it). Mr.
Milner made clear he did not "think that the agreement was
void." He simply "stopped complying with the rent thing, that's
it."
- 4 -
The separation agreement, Mr. Milner's counsel argued to
the commissioner, was still binding with the exception of the
$700 monthly payment obligation. That provision, he insisted,
had been superceded by the pendente lite order. The
commissioner disagreed, finding the separation agreement (with
the exception of its child support provisions) continued to be
"a valid agreement." The commissioner held that the pendente
lite decree dealt only with child support and did not affect Mr.
Milner's continuing obligation to make the $700 monthly
payments. The $700-per-month payment constituted "an obligation
above and beyond the child support," the commissioner ruled. He
added that, if the parties "wanted to change that $700, it had
to be done . . . in writing."
In February 2002, the chancellor reviewed and approved the
commissioner's findings regarding the continued binding effect
of the separation agreement. The chancellor also agreed that,
even though the agreement elsewhere waived either party's right
to further "spousal support" as such, the provision nonetheless
imposed on Mr. Milner the $700-per-month obligation as "simply a
form of temporary support" to help Mrs. Milner "get back on her
feet financially, and that is distinct and separate from the
child support." The chancellor also rejected Mr. Milner's
argument that the pendente lite decree addressed, much less
vitiated, the $700-per-month obligation imposed by the
separation agreement.
- 5 -
II.
A.
Mr. Milner first asserts that the chancellor had no
authority to enforce the spousal support obligation arising out
of the separation agreement because Mrs. Milner failed to
request this specific form of relief in her bill of complaint.
We agree with the underlying principle he relies upon, but
disagree that it has not been properly applied in this case.
It is true that spousal support may not be awarded if the
requesting party does not expressly request it in the pleadings.
See, e.g., Fleming v. Fleming, 32 Va. App. 822, 826, 531 S.E.2d
38, 40 (2000); Reid v. Reid, 24 Va. App. 146, 149-50, 480 S.E.2d
771, 772-73 (1997); Boyd v. Boyd, 2 Va. App. 16, 17-18, 340
S.E.2d 578, 579 (1986). And, in keeping with this rule, Mrs.
Milner's bill of complaint requested "support and maintenance
for herself" in addition to child support. In reply, Mr.
Milner's cross-bill asked that "spousal support be denied" to
both parties. The pleadings, therefore, placed the issue of
spousal support squarely before the trial court.
It is not true, however, that spousal support can only be
awarded pursuant to a separation agreement when the initial
pleading specifically identifies the agreement and asserts its
applicability. The requirements for pleading "are not so strict
as to demand specificity beyond that necessary to 'clearly
[inform] the opposite party of the true nature of the claim or
- 6 -
defense' pled." Balzer & Assocs. v. Lakes on 360, 250 Va. 527,
531, 463 S.E.2d 453, 456 (1995) (quoting Rule 1:4(d)); see also
Rule 2:2 (An equity complaint, properly pled, implicitly
includes request for "general relief as the nature of the case
may require and to equity may seem meet . . . ."). Thus, notice
pleading principles require fair warning of the form of relief,
not its specific method of calculation.
We do not apply the standards of notice pleading
inflexibly, but instead accept "substantial compliance" if it
sufficiently informs the litigants and the trial court of the
contested issues. Gologanoff v. Gologanoff, 6 Va. App. 340,
348, 369 S.E.2d 446, 450 (1988). "To hold otherwise would be to
put form over substance, which we refuse to do." Id. Such
concerns are particularly true where, as here, a chancellor acts
within the broad boundaries of equity. Johnson v. Buzzard
Island Shooting Club, 232 Va. 32, 36, 348 S.E.2d 220, 223 (1986)
("Preferring substance over form, a court in equity may very
properly mold the pleadings so as to ascertain the rights of the
parties and thus end the litigation." (internal quotation marks
and citation omitted)).
Guided by these general principles, we find no specific
requirement in Code § 20-109.1 that separation agreements be
expressly addressed in the initial pleadings. Code § 20-109(c),
moreover, permits litigants to file a separation agreement at
any time "before entry of a final decree." To be sure, it is
- 7 -
often the case that parties consummate agreements of this kind
after suit has been filed. So long as a request for spousal
support has been made in the pleadings, the chancellor must
order such support in the amount agreed upon by the parties.
See Code § 20-109(c) (If a valid separation agreement has been
filed, no spousal support order "shall be entered except in
accordance with that stipulation or contract.").
We hold that Mrs. Milner, by requesting spousal support in
her bill of complaint, was entitled under Code § 20-109(c) to
file the separation agreement and to seek enforcement of its
contractual support terms. Nothing in the pleadings or the
evidentiary proceedings causes us to believe that Mr. Milner, at
any point in this litigation, failed to appreciate the nature or
character of his wife's claim.
B.
Mr. Milner next argues that, even if the chancellor had
authority to enforce the separation agreement, he abused his
discretion in doing so because he had previously "modified" the
agreement by issuing the pendente lite decree and thereby
released Mr. Milner of the $700-per-month obligation. We find
no error in the chancellor's rejection of this argument.
Under settled principles, "when construing a lower court's
order, a reviewing court should give deference to the
interpretation adopted by the lower court." Albert v. Albert,
- 8 -
38 Va. App. 284, 298, 563 S.E.2d 389, 396 (2002) (quoting
Fredericksburg Constr. Co. v. J.W. Wyne Excavating, Inc., 260
Va. 137, 144, 530 S.E.2d 148, 152 (2000), and Rusty's Welding
Serv., Inc. v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260
(1999) (en banc)); see also Leitao v. Commonwealth, 39 Va. App.
435, 438, 573 S.E.2d 317, 319 (2002) (On appeal, "we defer to a
trial court's interpretation of its own order."). The trial
court's interpretive discretion, however, "must be exercised
reasonably and not arbitrarily or capriciously." Smoot v.
Commonwealth, 37 Va. App. 495, 500, 559 S.E.2d 409, 412 (2002)
(citation omitted).
The commissioner and chancellor were in complete agreement
on their interpretation of the pendente lite decree. They found
its terms applicable only to the then-pending request for child
support, not to the enforceability of the $700 monthly payment
in the separation agreement. The evidence surrounding the entry
of the agreed order amply supports their view. The pendente
lite notice did not identify the $700 monthly payment (or, for
that matter, any spousal support issue) as a topic to be
addressed at the hearing. The insertion of "n/a" into the
paragraph of the pendente lite decree concerning spousal
support, the chancellor reasonably concluded, simply meant the
interlocutory order did not address the issue at all —— not that
all prior written agreements on the subject were necessarily
"null and void" as Mr. Milner suggests. As to the statement in
- 9 -
the decree that "no support arrearages exist," here again, the
chancellor understood this language to apply only to the child
support issue —— the only support issue addressed by the court
at the pendente lite hearing.
For these reasons, the chancellor did not abuse his
discretion in interpreting the pendente lite decree as he did.
Under the chancellor's interpretation, the decree did not
"modify" or render "null and void" Mr. Milner's preexisting
contractual obligation to make the $700 monthly payments. This
reasonable interpretation of the decree falls well within the
latitude we afford trial courts in the construction of their own
decrees.
As the commissioner and the chancellor both noted, Code
§§ 20-153 and 20-155 provide that separation agreements may be
modified or rescinded only in writing. See Smith v. Smith, 19
Va. App. 155, 157, 449 S.E.2d 506, 507 (1994). At no time did
the parties or the trial court modify or rescind in writing the
$700-per-month support obligation imposed by the separation
agreement. It thus retained its legal vitality and, in the
chancellor's discretion, could be incorporated into the final
decree. See Code § 20-109.1 ("Any court may affirm, ratify and
incorporate by reference in its decree dissolving a marriage or
decree of divorce . . . any valid agreement between the parties,
or provisions thereof . . . .").
- 10 -
III.
In sum, the trial court did not abuse its discretion by
enforcing Mr. Milner's obligation to pay $700 a month (from June
2000 to June 2003) as a contractual "form of temporary support."
Mrs. Milner's request in her bill of complaint for spousal
support placed the issue before the court, and the chancellor
acted within his discretion by resolving that issue in her
favor.
Affirmed.
- 11 -