Catherine L. Henerman v. John Milton Hinerman

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner
CATHERINE L. HINERMAN
MEMORANDUM OPINION *
v. Record No. 2343-08-4 PER CURIAM
APRIL 14, 2009
JOHN MILTON HINERMAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
(Catherine L. Hinerman, pro se, on briefs).
(Brian M. Hirsch; Hirsch & Ehlenberger, P.C., on brief), for
appellee.
Catherine L. Hinerman (wife) appeals the trial court’s rulings regarding the interpretation of
the parties’ property settlement agreement, her request for an increase in spousal support, and the
attorney fee award. Wife argues that the trial court erred by (1) finding that there was no ambiguity
in the parties’ property settlement agreement regarding their respective obligations to pay expenses
relating to their real property; (2) determining that the parties’ intent did not control the
interpretation of an ambiguous provision in the agreement; (3) denying wife’s request for an
increase in spousal support; (4) finding that husband had significant financial problems and could
not afford an increase in his spousal support obligation; and (5) awarding attorney fees to husband. 1
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
In her reply brief, wife presented another question regarding the agreement; however,
this issue was not originally designated as a question presented. Rule 5A:25(d). Therefore, we
will not consider this question.
BACKGROUND
“When reviewing a trial court’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.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003).
So viewed, the evidence proved that on February 3, 2004, wife and John Milton
Hinerman (husband) entered into a property settlement agreement (the agreement), which was
affirmed, ratified and incorporated into the final decree of divorce entered on February 27, 2004.
The agreement provided for the disposition of real estate located at 719 Pine Street, Herndon,
Virginia (the Pine Street property) as follows:
4.(B) . . . The Pine Street property shall be maintained by the Wife
for up to 12 months, and then it shall be sold and the proceeds
divided as described herein. . . .
* * * * * * *
(ii)(a) The Wife shall have the right to the use and possession of
the Pine Street property until January 31, 2005. Thereafter, the
property shall be sold as more specifically described herein.
(b) Until the property is sold, the Wife shall pay and keep current
the property taxes, insurance and first deed of trust note payments
and all utilities associated with this property. . . .
(c) If: (i) the Wife fails to pay the taxes, insurance or any deed of
trust note payment associated with said property in a timely
manner, or (ii) by February 1, 2005 (whichever occurs first), the
parties shall immediately sell the 719 Pine Street, Herndon,
Virginia property . . . .
At the time of the divorce, the parties owned a small business that operated out of the
Pine Street property. Wife ran the business until February 1, 2005, when she vacated the
property. In June 2005, husband received notification that the mortgage had not been paid for
February, March, April, and May 2005. Husband made the payments in order to prevent
foreclosure. The parties listed the property for sale, and it sold in July 2007. Husband paid the
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taxes, insurance, mortgage, and utilities for the Pine Street property from February 2005 until
July 2007.
In 2006, husband made a poor business deal, and his source of income, his airplane, was
repossessed. Husband incurred substantial debt in order to regain his airplane. At the time of the
hearing in 2008, husband’s income approximately doubled since the time of the divorce;
however, he also had more financial obligations. Wife’s income remained approximately the
same.
At trial, wife argued that the provisions in the agreement regarding the Pine Street
property were ambiguous as to wife’s financial obligation. The trial court disagreed and found
that wife was responsible for the taxes, insurance, mortgage, and utilities for the Pine Street
property from February 2005 until July 2007. The trial court further denied wife’s request for an
increase in spousal support and awarded husband $3,500 in attorney fees. Wife filed a motion to
reconsider and/or rehear, which the trial court denied. Wife timely noted her appeal.
ANALYSIS
Issues 1 and 2: Interpretation of the agreement
Wife argues that the trial court erred in finding that the parties’ agreement was not
ambiguous and determining that the parties’ intent did not control the interpretation of an
ambiguous provision.
“Property settlement agreements are contracts and are subject to the same rules of
construction that apply to the interpretation of contracts generally.” Southerland v. Estate of
Southerland, 249 Va. 584, 588, 457 S.E.2d 375, 378 (1995) (citations omitted).
On appeal, the Court reviews a trial court’s interpretation of a
contract de novo. Eure v. Norfolk Shipbuilding & Drydock Corp.,
263 Va. 624, 631, 561 S.E.2d 663, 667 (2002) (citing Wilson v.
Holyfield, 227 Va. 184, 313 S.E.2d 396 (1984)) (“we have an
equal opportunity to consider the words of the contract within the
four corners of the instrument itself”). The question whether
contract language is ambiguous is one of law, not fact. Tuomala v.
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Regent University, 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996).
Thus, the trial court’s conclusion regarding ambiguity is accorded
no deference on appeal. See id.Plunkett v. Plunkett, 271 Va. 162, 166-67, 624 S.E.2d 39, 41 (2006).
“Contract language is ambiguous when ‘it may be understood in more than one way or
when it refers to two or more things at the same time.’” Eure, 263 Va. at 632, 561 S.E.2d at 668(quoting Granite State Ins. Co. v. Bottoms, 243 Va. 228, 234, 415 S.E.2d 131, 134 (1992)). “A
contract term is not ambiguous merely because the parties disagree as to the term’s meaning.”
Bergman v. Bergman, 25 Va. App. 204, 211, 487 S.E.2d 264, 267 (1994) (citations omitted).
“‘The guiding light . . . is the intention of the parties as expressed by them in the words they have
used, and courts are bound to say that the parties intended what the written instrument plainly
declares.’” Golding v. Floyd, 261 Va. 190, 192, 539 S.E.2d 735, 737 (2001) (quoting Magann
Corp. v. Electrical Works, 203 Va. 259, 264, 123 S.E.2d 377, 381 (1962)).
Furthermore, “[t]he contract must be read as a single document. Its meaning is to be
gathered from all its associated parts assembled as the unitary expression of the agreement of the
parties.” Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983).
Wife argues that the language in Section 4(B), which states that she shall maintain the
Pine Street property for “up to 12 months,” conflicts with the language in Section 4(B)(ii)(b),
which states that “[u]ntil the property is sold,” wife is responsible for the taxes, insurance,
mortgage, and utilities for the Pine Street property.
In looking at the agreement as a whole, the agreement stated that wife was to maintain
the property for twelve months, but that she was responsible for the mortgage, insurance, taxes,
and utilities until the property was sold. The discrepancy between the parties centers on the
word, “maintain,” which means “to care for (property) for purposes of operation productivity or
appearance; to engage in general repair and upkeep.” Black’s Law Dictionary 973 (8th ed.
2004). The provision that wife was to maintain the property for twelve months, Section 4(B),
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was consistent with the other provision, Section 4(B)(ii)(a), that she was allowed to use and
possess the property until January 31, 2005, twelve months after the execution of the agreement.
The next provision, Section 4(B)(ii)(b), discussed wife’s financial obligations until the
property is sold. This provision did not address whether wife possessed the property or not. The
language in the agreement is clear - - wife was responsible for the mortgage, insurance, taxes,
and utilities until the property was sold.
Wife contends that the parties did not intend for her to be responsible for all of the taxes,
insurance, mortgage, and utilities from February 2005 until July 2007. She testified that husband
wrote a letter to her in June 2005, in which he stated that he would bring the mortgage current,
that wife would be responsible for the February, March, and April 2005 mortgage payments, and
thereafter, the parties would divide the mortgage payments, utilities, taxes, and lawn
maintenance so that husband would be responsible for 86.5% and wife would be responsible for
13.5% of the expenses. 2 Wife testified that she accepted husband’s offer in writing, but husband
did not remember receiving her response. Wife did not have a copy of her response. Until
December 2006, husband periodically would send wife spreadsheets showing her obligation for
the “carrying costs” of the Pine Street property. Once husband consulted with an attorney,
husband told wife that she owed him 100% of the mortgage payments, insurance, taxes, and
utilities pursuant to the agreement and 13.5% of the lawn maintenance and other expenses.
Wife’s contention is that the parties’ agreed that she would only be responsible for 13.5% of the
expenses.
However, the parties did not modify the agreement pursuant to Section 23(F), which
states that a “modification or waiver of any of the provisions of this Agreement shall be effective
only if made in writing and witnessed with the same formality as this Agreement.” There was no
2
The parties’ agreement stated that husband would receive 86.5% of the net sale
proceeds and wife would receive 13.5% of the net sale proceeds.
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evidence of a signed and notarized document modifying the provisions of the Pine Street
property. Therefore, the agreement’s original language remains in effect.
We find that the agreement is not ambiguous and the trial court’s ruling is affirmed.
Issues 3 and 4: Spousal support
Wife argues that the trial court erred in denying her request for an increase in spousal
support and in finding that husband faced nearly insurmountable financial challenges, which
affected his ability to pay more in spousal support.
A trial court has broad discretion in awarding spousal support, and its ruling will not be
overturned unless there is an abuse of discretion. Brooks v. Brooks, 27 Va. App. 314, 317, 498
S.E.2d 461, 463 (1998) (citations omitted).
“Upon [the] petition of either party the court may increase . . . spousal support and
maintenance . . . as the circumstances may make proper.” Code § 20-109. “The moving party in
a petition for modification of support is required to prove both a material change in
circumstances and that this change warrants a modification of support.” Schoenwetter v.
Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989) (citation omitted). The material
change in circumstances “must bear upon the financial needs of the dependent spouse or the
ability of the supporting spouse to pay.” Hollowell v. Hollowell, 6 Va. App. 417, 419, 369
S.E.2d 451, 452 (1988).
The trial court found that there was a change of circumstances because husband’s income
approximately doubled and wife’s income remained approximately the same. The trial court
further found that husband had incurred “substantial” financial obligations when his airplane was
repossessed. Therefore, the trial court ruled, “although the Court may find that there is a
material change in circumstances it doesn’t warrant him to increase his spousal support given his
current financial situation that also involves significant financial deficit. So I am denying any
increase in spousal support.”
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The evidence was sufficient to prove that husband incurred substantial debts when his
airplane was repossessed. He refinanced other property he owned in order to regain his airplane.
He paid on the airplane note and rental payments for the hanger. He also had the Pine Street
property expenses. Although his income increased since the last support order, his debts also
increased.
Therefore, the trial court did not err in finding that because of husband’s financial
obligations, his spousal support obligation should not increase.
Issue 5: Attorney fees
Wife’s remaining issue concerns the award for attorney fees; however, in her opening
brief, wife failed to provide any legal authority to support her assertions.
Rule 5A:20(e) mandates that appellant’s opening brief include “[t]he principles of law,
the argument, and the authorities relating to each question presented . . . .” Wife did not comply
with Rule 5A:20(e) because her opening brief does not contain any principles of law, argument,
or citation to legal authorities or the record to fully develop her arguments regarding the award
for attorney fees.
Wife has the burden of showing that reversible error was committed. See Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Unsupported assertions of
error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992). Furthermore this Court “will not search the record for errors in order to
interpret the appellant’s contention and correct deficiencies in a brief.” Id. Nor is it this Court’s
“function to comb through the record . . . in order to ferret-out for ourselves the validity of
[appellant’s] claims.” Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988)
(en banc). “Even pro se litigants must comply with the rules of court.” Francis v. Francis, 30
Va. App. 584, 591, 518 S.E.2d 842, 846 (1999).
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We find that wife’s failure to comply with Rule 5A:20(e) is significant, so we will not
consider the attorney fees issue. See Fadness v. Fadness, 52 Va. App. 833, 851, 667 S.E.2d 857,
866 (2008) (“If the parties believed that the circuit court erred, it was their duty to present that
error to us with legal authority to support their contention.”); Parks v. Parks, 52 Va. App. 663,
664, 666 S.E.2d 547, 548 (2008).
CONCLUSION
We find that the trial court did not err in its interpretation of the parties’ agreement and in
its refusal to increase spousal support. Since wife failed to comply with Rule 5A:20(e), we did
not consider wife’s argument regarding the award for the attorney fees. Therefore, the trial
court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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