Patricia A. Hartman, f/k/a Patricia A. Hogg v. Oakley W. Hogg, III, 0019172

Background

Parties divorced and incorporated a Property Settlement Agreement (PSA) into the final decree; the PSA required Husband to pay 70% and Wife 30% of "reasonable undergraduate college expenses" and stated: "The college shall be selected by the parties in timely consultation with each other. The parties shall consider the preferences, qualifications and abilities of each child concerned, and the financial resources available."
After the first year (when Wife paid her share), both daughters attended East Carolina University; in the second year Husband paid most expenses and filed a show-cause motion alleging Wife refused to pay her 30% share.
Wife testified she neither consulted Husband nor the children about college choices or financial resources and that she had difficulty affording payments; she made some partial payments for the current year.
Trial court found the PSA unambiguous, concluded the consultation/consideration language did not create conditions precedent to payment, found Wife "elected not to participate" and was in civil contempt, and ordered her to pay $4,713.48.
On appeal Wife argued (1) payment was conditioned on timely consultation and consideration of children's qualifications/financial resources, (2) the phrase "financial resources available" was ambiguous and exclusion of a settlement-excerpt exhibit was erroneous, and (3) the court erred in finding she failed to consider the children’s preferences/qualifications.

Issues

Issue	Plaintiff's Argument (Hartman)	Defendant's Argument (Hogg)	Held
Whether PSA payment obligation was subject to conditions precedent (timely consultation; considering preferences/qualifications/financial resources)	These clauses are conditions precedent; because they did not occur, Hartman was not obligated to pay	The clauses are not conditions precedent; Hartman ratified the PSA by paying previously and failed to participate, so she must pay	Court: Not conditions precedent; Hartman ratified agreement and cannot sit on rights — contempt affirmed
Meaning of "financial resources available" — ambiguous?	Phrase is ambiguous and could refer to post-divorce distribution or other meanings; extrinsic evidence should be considered	Phrase is plain: means funds available when children attend college; PSA is unambiguous so courts must apply plain meaning	Court: Unambiguous; reads as resources available when children attend college; no extrinsic evidence considered
Admissibility of settlement negotiation excerpt offered by Hartman	Exhibit shows parties’ negotiation options and intent; should be admitted to interpret ambiguous language	Exhibit is inadmissible settlement negotiation and irrelevant to an unambiguous PSA	Court: Exercise of discretion to exclude was proper (settlement offers inadmissible; PSA unambiguous)
Whether Hartman considered the children’s preferences, qualifications, abilities	Hartman contends she was prevented or excused from meaningful consultation	Hogg: Hartman did not attempt to consult the children or husband and thus failed to consider them	Court: Evidence supports finding Hartman made no effort to consult; trial court’s factual finding entitled to deference — affirmed

Key Cases Cited

Smith v. Smith, 3 Va. App. 510, 351 S.E.2d 593 (Va. Ct. App.) (PSAs are contracts; interpretation rules)
Renner Plumbing v. Renner, 225 Va. 508, 303 S.E.2d 894 (Va. 1983) (definition of ambiguity)
Morotock Ins. Co. v. Fostoria Novelty Co., 94 Va. 361, 26 S.E. 850 (Va. 1897) (definition of condition precedent)
Parrish v. Wightman, 184 Va. 86, 34 S.E.2d 229 (Va. 1945) (a party cannot insist on a condition precedent when its nonperformance was caused by that party)
Lyle, Siegel, Croshaw & Beale, P.C. v. Tidewater Capital Corp., 249 Va. 426, 457 S.E.2d 28 (Va. 1995) (settlement offers/negotiations generally inadmissible)
Piatt v. Piatt, 27 Va. App. 426, 499 S.E.2d 567 (Va. Ct. App.) (trial court’s evidentiary discretion/review)