Susan B. Early v. M. Thompson Early, Jr.

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
SUSAN B. EARLY
MEMORANDUM OPINION *
v. Record No. 2038-95-4 PER CURIAM
APRIL 9, 1996
M. THOMPSON EARLY, JR.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(Edward J. Walinsky; Marcia F. Ruff; Shoun &
Bach, P.C., on briefs), for appellant.
(Ronald D. Jacobs; Jay M. Eisenberg; Weinberg &
Jacobs, on brief), for appellee.
Susan B. Early (wife) appeals the decision of the circuit
court on her Rule to Show Cause. Wife contends that the trial
court erred in interpreting the amended Voluntary Separation and
Property Settlement Agreement (Agreement) signed by wife and M.
Thompson Early, Jr., (husband), which was incorporated into their
divorce decree. Specifically, wife contends that the trial court
erroneously modified the parties' Agreement; incorrectly assessed
the dental reimbursements for which husband was responsible;
granted relief that was not requested, by requiring wife to seek
reimbursements within a "reasonable" time; and abused its
discretion by awarding wife an insufficient amount of attorney's
fees. Upon reviewing the record and briefs of the parties, we
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. Rule 5A:27.
Modification of Agreement
Wife contends that the trial court impermissibly added terms
to the parties' Agreement. We disagree. We note that "on appeal
if all the evidence which is necessary to construe a contract was
presented to the trial court and is before the reviewing court,
the meaning and effect of the contract is a question of law which
can readily be ascertained by this court." Fry v. Schwarting, 4
Va. App. 173, 180, 355 S.E.2d 342, 346 (1987).
Under the Agreement, husband was responsible for wife's
"medical expenses." 1 While the evidence established that wife
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The parties' Agreement stated, in pertinent part:
A. The Husband shall be responsible for all
of the medical, hospitalization, and dental
expenses incurred by the wife during her life
. . . . The Husband shall have the right and
option to procure such reasonable health and
dental insurance as he shall select for the
Wife in order to, in part, satisfy this
obligation.
If wife was able to obtain less expensive insurance coverage, she
was required to do so and "husband's obligation herein shall be
reduced to the payment of the cost of such insurance coverage
plus those portions of the Wife's medical, hospitalization and/or
dental expenses not covered by such insurance." The parties
amended their agreement to add the following provision:
Payment by husband of the medical,
hospitalization, and dental expenses incurred
by the wife which are not covered by
insurance shall be effected within 30 days
following receipt by husband of a statement
or invoice as to same. The wife, upon
receipt by her of reimbursement for covered
medical, hospitalization, and dental expenses
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needed corrective lenses, wife's eye doctor testified that there
was no reason "why she requires contact lenses as opposed to any
other kind of lens." The trial court determined that, while wife
was entitled to reimbursement for eye examinations and eye
glasses, she had failed to prove that costs associated with her
contact lenses were medical, rather than cosmetic, expenses. By
doing so, the trial court did not impermissibly add a new
standard of medical necessity to the parties' Agreement.
Instead, the trial court interpreted the existing language of the
parties' Agreement and concluded that wife's contact lenses were
not a medical expense. We find no error in the trial court's
ruling.
Similarly, we do not find that the trial court imposed
additional duties on wife when it determined that wife's actions
prohibited husband from exercising his option to obtain insurance
coverage for her dental expenses. Under their Agreement, each
party agreed that
he or she will, at all times in the future,
upon the reasonable request and at the
expense of the other, execute and deliver to
the other all additional and further
assurances of any nature which may be
from the insurance carrier as to expenses
paid by husband, shall forward said
reimbursement check to the husband within 30
days following her receipt of same. The wife
shall provide the husband annually with a
copy of the wife's health insurance policy,
coverage options and premium cost.
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necessary or desirable to fully consummate
and carry out the intent of this Agreement.
Although husband sought to provide coverage in February 1992,
wife took no steps to complete the dental insurance forms
necessary for husband to obtain the insurance coverage and did
not inform husband until November 1993 of the reasons she found
the proposed coverage unacceptable. Wife had an affirmative
obligation under the Agreement to respond to husband's attempt to
obtain insurance coverage. Therefore, the trial court did not
impose an additional duty on wife or otherwise modify the
parties' Agreement.
Alleged Admissions
Husband's settlement offer to pay certain dental and eye
care expenses did not translate into an admission of what was due
under the terms of the agreement. Therefore, wife's reliance on
Massie v. Firmstone, 134 Va. 450, 114 S.E. 652 (1922), is
misplaced.
The trial court was entitled to determine whether wife's
actions mitigated husband's obligations to cover her dental
expenses. We cannot say the trial court's decision that husband
pay the co-payments wife would have received under the plan was
error.
Relief Requested
The Rule to Show Cause forced the trial court to consider
what constituted compliance under the parties' Agreement.
Husband repeatedly asked the court to provide guidance so that
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the parties could function under the Agreement. While Code
§ 20-109 prohibits the entry of any decree or order except in
accordance with the parties' Agreement,
Code § 20-109 only restricts the action a
trial court may take where the parties have
agreed upon a matter. Code § 20-109 does not
prohibit a trial court from ordering a course
of action upon a matter that the parties do
not address in their property settlement
agreement, provided the court is not
otherwise precluded from doing so and the
course of action is appropriate.
Sanford v. Sanford, 19 Va. App. 241, 250, 450 S.E.2d 185, 191
(1994). Moreover, courts of equity may impose time restrictions
not otherwise applicable under the terms of an agreement when
"'it necessarily follows from the conduct of the parties or the
nature and circumstances of the agreement.'" Wood v. Wood, 216
Va. 922, 924, 224 S.E.2d 159, 161 (1976) (citation omitted). Cf.
Dziarnowski v. Dziarnowski, 14 Va. App. 758, 418 S.E.2d 724(1992).
We agree with the trial court's conclusion that the
Agreement was "silent as to the timing of [wife's] requests for
medical expense reimbursement." The trial court's decision
conformed with the relief sought by husband and was necessitated
by the issues and the course of the parties' dealings.
Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. Graves v. Graves, 4 Va. App.
5326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
The trial court found that wife was not entitled to all
costs she sought. Both parties admitted that the attorney's fees
expended were disproportionate to the costs at issue. Based on
the number of issues involved and the respective abilities of the
parties to pay, we cannot say that the award was unreasonable or
that the trial judge abused his discretion in making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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