Arthur G. Kahn v. Eileen McNicholas
67 Va. App. 215
| Va. Ct. App. | 2017Background
- Arthur Kahn and Eileen McNicholas divorced after executing a Separation and Property Settlement Agreement (PSA) that Kahn drafted; the PSA was incorporated into the final divorce decree.
- PSA required Kahn to pay a $40,000 lump sum in 16 monthly $2,500 installments (Sept 2013–Dec 2014) and to pay certain insurance premiums; both parties waived alimony in the PSA.
- The final decree, however, described the $2,500 monthly payments and insurance obligations in a statutory "notice" section as "periodic spousal support." Both parties signed the decree.
- Kahn paid for ten months but then withheld payments July–Dec 2014, claiming his ex-wife’s adultery invalidated the PSA; arrearage totaled about $13,488 (later ordered as $14,488 including fees).
- McNicholas filed to enforce the decree, labeling the obligations as "spousal support" (which she later called a scrivener’s error); the circuit court issued a rule to show cause and later held Kahn in contempt, conditioning a jail term on nonpayment.
- Kahn appealed arguing (1) the court lacked contempt power to enforce a monetary award (relying on Brown v. Brown) and (2) the petition misstated the obligations as spousal support so sanctions should be imposed on McNicholas and her counsel; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a circuit court may use contempt to enforce monetary awards/PSA obligations incorporated in a divorce decree | Kahn: Brown requires monetary awards be enforced only as money judgments, not by contempt | McNicholas: PSA was incorporated into decree; statutes give court contempt power to enforce decree/PSA | Court: Affirmed contempt; Code §§ 20-109.1 and 20-107.3 permit enforcement by contempt; Brown no longer controls |
| Whether mischaracterization of obligations as "spousal support" warranted dismissal and sanctions under Code § 8.01-271.1 | Kahn: Petition and filings intentionally misrepresented obligations as spousal support to enable contempt enforcement; sanctions warranted | McNicholas: Use of term was a scrivener’s error consistent with language in the final decree; no intent to mislead | Court: No abuse of discretion in declining sanctions; term was understandable from decree, Kahn suffered no prejudice |
Key Cases Cited
- Brown v. Brown, 5 Va. App. 238 (distinguishing monetary awards from spousal support; previously held monetary awards must be satisfied as money judgments)
- Morris v. Morris, 216 Va. 457 (statute permitting incorporation of PSA into decree promotes enforcement by contempt)
- Petrosinelli v. People for the Ethical Treatment of Animals, 273 Va. 700 (contempt power reviewed for abuse of discretion)
- Branch v. Branch, 144 Va. 244 (courts must have power to enforce decrees; contempt is available to punish disobedience)
- Adcock v. Commonwealth ex rel. Houchens, 282 Va. 383 (support obligations create judgments by operation of law and may be enforced like money judgments)
- West v. West, 126 Va. 696 (historical authority that spousal support may be enforced by contempt)