789 S.E.2d 787
Va. Ct. App.2016Background
- Rebecca and Joseph Allen married in 1980. They executed a post‑nuptial agreement on April 4, 2014, which replaced an earlier Memorandum of Understanding.
- The agreement included a “Continuation of Marriage” clause: husband “shall not pursue a dissolution of the marriage for a period of 20 years” or obtain any judicial order that disqualifies wife from his Caterpillar health insurance; it also contained a damages/indemnity clause making husband liable for medical expenses if wife lost coverage due to his actions.
- Husband filed for divorce in November 2014 alleging the parties had lived separate and apart for more than one year. Wife filed a plea in bar asserting the post‑nuptial contract barred husband from seeking divorce for 20 years.
- Husband argued the clause’s purpose was to secure wife’s health insurance, not to absolutely bar divorce, and pointed to the indemnity/damages clause as an adequate legal remedy. He also raised public policy and unconscionability defenses.
- The trial court overruled the plea in bar and entered a final divorce decree; it ordered husband to pay wife $12,500 in attorney’s fees. Wife appealed, arguing (1) the contract barred husband from suing for divorce for 20 years, (2) the contract forbade any decree disqualifying her from coverage, and (3) she was entitled to attorneys’ fees on appeal.
Issues
| Issue | Plaintiff's Argument (Rebecca) | Defendant's Argument (Joseph) | Held |
|---|---|---|---|
| Whether forbearance to sue for divorce can be valid consideration | Forbearance to bring divorce was bargained-for consideration supporting the post‑nuptial agreement | Agreed that forbearance can be consideration but disputed interpretation of the clause | Court: Forbearance to refrain from suing for divorce is valid consideration. |
| Whether the agreement barred husband from seeking a divorce for 20 years | The plain clause (“shall not pursue a dissolution…for a period of 20 years”) is an absolute bar | The clause must be read with the indemnity and other contract provisions; its purpose was to secure wife’s health insurance and provide damages if breached | Court: The contract, read as a whole, was intended to ensure wife’s health insurance for 20 years, not to absolutely prohibit divorce. |
| Whether specific performance (rescission of divorce decree) or other equitable relief was appropriate | Wife sought enforcement of the no‑divorce term (i.e., to block the divorce) | Husband argued contract provided an adequate legal remedy (indemnity for medical costs), making specific performance unnecessary/inequitable | Court: Denied specific performance/rescission; damages/indemnity clause is an adequate remedy, so divorce stands. |
| Entitlement to attorney’s fees (trial and appeal) | Wife sought full fees for trial and this appeal as damages for husband’s breach and under the contract fee provisions | Husband argued trial court discretion and that contract’s fee provisions apply; he sought fees for defense where applicable | Court: Affirmed award of $12,500 trial fees to wife as within trial court’s discretion; on appeal, each party bears own appellate fees because both prevailed on different contract provisions. |
Key Cases Cited
- Loving v. Virginia, 388 U.S. 1 (1967) (fundamental right to marry)
- Zablocki v. Redhail, 434 U.S. 374 (1978) (marriage as a fundamental interest)
- Griswold v. Connecticut, 381 U.S. 479 (1965) (privacy and marriage-related liberties)
- Upton v. Ames & Webb, Inc., 179 Va. 219 (1942) (forbearance to sue for divorce constitutes consideration)
- PMA Capital Ins. Co. v. U.S. Airways, Inc., 271 Va. 352 (2006) (contracts construed as written; give meaning to all words)
- Chattin v. Chattin, 245 Va. 302 (1993) (specific performance is equitable and discretionary)