Francesca HARDESTY v. Samuel HARDESTY
Record No. 0366-02-2
Court of Appeals of Virginia, Richmond
May 27, 2003
581 S.E.2d 213
Frank N. Cowan (Ishneila I.G. Moore; Cowan & Owen, P.C., on brief), Richmond, for appellee.
Prеsent: FITZPATRICK, C.J., and BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, AGEE,* FELTON and KELSEY, JJ.
HUMPHREYS, Judge.
This matter comes before the Court on a rehearing en banc from a panel decision rendered October 22, 2002. See Hardesty v. Hardesty, 39 Va.App. 102, 570 S.E.2d 878 (2002). The panel affirmed a judgment of the trial court declaring that, pursuant to the parties’ final decree of divorce, Samuel Hardesty‘s obligation to pay spousal support to his former wife, Francesca Hardesty, must terminate upon her remarriage.
* Justice Agee participated in the argument and decision of this case prior to his investiture as a justice of the Supreme Court of Virginia.
I. Background
Husband and wife were married in 1990 and separated in 1999. No children were born of the marriage. In 1999, wife filed a bill of complaint seeking a divorce on the grounds of аdultery, cruelty and separation. Husband filed a cross-bill seeking a divorce on the grounds of separation.
The parties participated in mediation on January 13, 2000, and entered into a written property settlement agreement (PSA) as a result. The PSA provided for the division of the parties’ assets. The PSA also provided the following as to spousal support, in relevant part:
15. Spousal Support. Husband and Wife agree that Husband has an obligation to pay Wife spousal support as follows:
a. Beginning February 1, 2000 and continuing through to and including the final payment on January 1, 2007, Husband shall pay $5,000.00 per month.
* * * * * *
d. This support cannot be terminated for any reason.
In addition, the PSA provided as follows, in pertinent part, concerning the parties’ tax obligations:
13. Tax Consequences.
* * * * * *
c. Husband shall fund an escrow account with $300,000.00 [$150,000.00 of this shаll be considered Wife‘s funds] on or before May 15, 2000 ... to be held in an interest bearing account. These funds shall be held for payment of the taxes, penalties, interest, and fines, for Hardesty Construction, Inc. and American Gutter through 1998. If any monies are left over after all taxes, penalties, interest, and fines are paid in full, the balance shall be equally distributed to each
party.... If taxes, penalties, interest, and fines are owed after the depletion of all monies for payment of the taxes, penalties, interest and fines, personal, Hardesty Construction, Inc. and American Gutter through 1998, then each party shall be equally liable for the balance. Upon depletion of the escrow balance, Husband shall immediately pay the entire balance for any taxes, penalties, interest, and fines owed within six [6] months, time being of the essence. Thereafter, he may deduct [right of set off] Wife‘s half from the spousal support by shortening support by the number of months necessary to repay the amount to Husband. For example, if $10,000.00 is owed after the escrow is depleted, Husband shall pay said amount in full and shorten support by one month [$5,000.00] at the end of the support period....
Finally, the PSA provided that it would be “affirm[ed], ratif[ied] and incorporate[d],” but not “merge[d],” into the final divorce decree.
Prior to the court‘s entry of the final decree, wife filed a separate action with the trial court in July of 2001, seeking a declaratory judgment holding the PSA precluded the termination of spousal support upon her remarriage. Husband demurred to the declaratory judgment action contending that the language contained in the PSA was insufficient as a matter of law to bar termination of spousal support upon remarriage. By order entered July 20, 2001, the action was consolidated with the parties’ pending divorce action.
After reviewing supporting memoranda filed by the parties and a hearing ore tenus, the trial court advised counsel as follows:
After considering the authorities, I have decided to sustain the demurrer or motion to suppress of the defendant. The Court finds that, under applicable case law, it is required, in order of [sic] the spousal support to survive remarriage, that the property settlement explicitly state that it will survive remarriage.
And I will note [wife‘s] exception but will hold that spousal support will terminate upon the remarriage of [wife].
The trial court incorporated its finding in this regard into the final decree of divorce, entered February 4, 2002, stating:
[T]he Court treats the demurrer as a dispositive motion and enters the following declaratory judgment:
[I]f the plaintiff remarries the defendant is relieved from any further obligation to pay spousal support to the Plaintiff. The [PSA] does not contain “express language either citing the statute [
Va.Code § 20-109 ] or expressly stating that remarriage does not terminate the obligation” as required by Virginia law. MacNelly v. MacNelly, 17 Va.App. 427, 430, 437 S.E.2d 582, 584 (1993) and Langley v. Johnson, 27 Va.App. 365, 499 S.E.2d 15 (1998). Accordingly, declaratory judgment in favor of the defendant is entered as set forth herein.
Wife appeals only this portion of the trial court‘s ruling.
II. Analysis
We have further held that “in order to accomplish the stated objective of the statute to resolve ambiguity and thereby reduce litigation, any attempt to abrogate the effect of the statute requires express languаge either citing the statute or expressly stating that remarriage does not terminate the
In Gayler v. Gayler, 20 Va.App. 83, 85, 455 S.E.2d 278, 279 (1995), the agreement provided that “the payments [of spousal support] ... shall terminate upon the Wife‘s remarriage or death.” However, the agreement was later modified by an addendum stating that “the payments ... shall terminate only upon the Wife‘s death.” 20 Va.App. at 85, 455 S.E.2d at 279. There, we held “that the addendum‘s excision of the reference to remarriage and the addition of the word ‘only’ evince[d] the parties’ intent that spousal support would survivе wife‘s remarriage.” Id. at 86, 455 S.E.2d at 280. Nevertheless, in a footnote to that holding, we made an important distinction, stating:
The use of the term “only” by the parties is alone not determinative of the issue. Absent the reference to the effect of remarriage in the original agreement, the language of the addendum standing alone would not be sufficient to evince an intent of the parties to avoid the operation of
Code §§ 20-109 and20-109.1 .
Id. at 86 n. 2, 455 S.E.2d at 280 n. 2; see also Langley, 27 Va.App. at 373-74, 499 S.E.2d at 19.1
In the agreement that we review in this appeal, the terms provide that spousal support “cannot be terminated for any reason.” However, no language in any part of the PSA explicitly evinces the parties’ intent to avoid operation of the statute as to remarriage. Indeed, the language of the pаrties’ agreement is very similar to “the language of the [Gayler] addendum [which] standing alone[,] would not be sufficient to evince an intent of the parties to avoid the operation of
Moreover, we find it significant that since our decisions in Radford and Gayler, and before the proceedings in the instant case, the legislature has met several times, amending
Thus, although on its face the language of the PSA seems to clearly reflect the intent of the parties, we reiterate our stated rationale in Radford, that the statutory “language contemplates an expressed, not implied, provision that support shall not terminate upon death or remarriage” and that “[t]o permit its mandate to be overcome by implication would introduce
Affirmed.
ANNUNZIATA, J., with whom CLEMENTS, and FELTON, JJ., join, dissenting.
I respectfully dissent from the majority‘s decision. I would find the parties’ PSA expressly states that spousal support does not terminate upon wife‘s remarriagе and that the statutory requirements of
The majority relies on the holdings in Radford v. Radford, 16 Va.App. 812, 433 S.E.2d 35 (1993), MacNelly v. MacNelly, 17 Va.App. 427, 437 S.E.2d 582 (1993), Gayler v. Gayler, 20 Va.App. 83, 455 S.E.2d 278 (1995), and Langley v. Johnson, 27 Va.App. 365, 499 S.E.2d 15 (1998), to affirm the trial court‘s ruling that husband‘s support obligation to wife terminated upon her remarriage. In these decisions, we construed
In Radford, the parties agreed in writing that “the husband shall pay unto the wife the sum of $200.00 per month for a period of 5 years.” Wife remarried before the expiration of the 5-year period referenced in the agreement, and the trial court terminated husband‘s obligation to pay support, relying on
Because ... the agreement contained no express provision for continuation upon the death or remarriage of the spouse receiving support, the spousal support terminated upon the wife‘s remarriage.
Radford, 16 Va.App. at 813-14, 433 S.E.2d at 36.
Shortly thereafter, we applied the Radford holding in MacNelly, where the parties agreed husband would pay wife $7,000 per month in support, but “[i]n the event that the husband or wife dies before February 1, 1996, then the obligation for support ... shall cease.” The agreement did not address the effect of wife‘s remarriage on husband‘s obligation. When wife remarried, husband ceased paying support. Wife argued that the inclusion of a provision concerning termination of the obligation upon the death of either party, coupled with the absence of any reference to the effect
In Gayler, the parties’ original agreement provided that support would terminate upon the death of either party or the remarriage of the wife. The parties later executed an addendum stating that support would terminate “only upon the wife‘s death.” Gayler, 20 Va.App. at 85, 455 S.E.2d at 279. We held that “the addendum‘s excision of the reference to remarriage and the addition of the word ‘only,’ to the phrase, ‘upon [her] death,’ evinces the parties’ intent that spousal support would survive remarriage.” Id. at 86, 455 S.E.2d at 280.
In Langley, the parties executed a settlement agreement that provided for the husband to pay wife weekly spousal support “until her death.” When wife remаrried, husband sought to have his support obligation terminated pursuant to
I acknowledge that the holdings in Radford, MacNelly, Gayler and Langley support the principle that, where an agreement does not expressly address the duration of spousal support in the event of remarriage, we will not read such language into the agreement by implication. Indeed, the language employed by the parties in each of these cases was ambiguous and susceptible to more than one interpretation and amply supports the result.3 I also acknowledge that the
A review of the authorities on which this Court relied in Miller v. Hawkins, 14 Va.App. 192, 415 S.E.2d 861 (1992), the progenitor of the MacNelly line of cases, is instructive. In Miller, we first construed
In only one of the foregoing cases, Williams, did the appellate court specifically hold that the word, “remarriage,” must be used to overcome the statute and that, absent the inclusion of the word “remarriage,” an agreement clearly and unmistakably addressing the effect of remarriage on spousal support, can never pass muster. Williams, 796 P.2d at 425.
Given the absence of such a requirement in all but one of the cases whose holdings we adopted in Miller, the absence of such a requirement in the Miller opinion is significant. Miller formulated the principle as one requiring clear and express language and did not specify particular language that it deemed sufficient. Even more instructive is this Court‘s continuing silence on the issue. None of the decisions that follow Miller holds that a specific reference to “remarriage” is the sole drafting technique that will be deemed sufficient to clearly express the parties’ intent with respect to the effect of remarriage on spousal support. All that is required under these precedents is that the parties’ agreement be “express” and free from “ambiguity.” MacNelly, 17 Va.App. at 430, 437 S.E.2d at 584.
Black‘s Law Dictionary defines “express” as “clear,” “definite,” “plain,” “explicit,” “direct,” “unmistakable.” Black‘s Law Dictionary 580 (6th ed.1990). “Express” is defined in Webster‘s Dictionary as “definite,” “directly and distinctly stated ... not dubious or ambiguous.” Webster‘s 3d New International Dictionary 2321 (3d ed.1993). None of the definitional synonyms leads ineluctably to the conclusion that only certain terms or words can be deеmed “express” expressions of intent. See also Sussex Comty. Servs. Ass‘n v. Va. Soc‘y for Mentally Retarded Children, 251 Va. 240, 243, 467 S.E.2d 468, 469 (1996); Rubin v. Gochrach, 186 Va. 786, 797, 44 S.E.2d 1, 5-6 (1947); Cox v. Cox, 16 Va.App. 146, 148, 428 S.E.2d 515, 516 (1993). Indeed, such a restricted reading of the statutory requirements of
“Property settlement agreements are contracts; therefore, we ... apply the same rules of interpretation applicable to contracts generally.” Tiffany v. Tiffany, 1 Va.App. 11, 15, 332 S.E.2d 796, 799 (1985). Where parties contract lawfully and their contract is free from ambiguity or doubt, their agreement furnishes the law which governs them and “equity will refuse to give it another by interpretation.” Elam v. Ford, 145 Va. 536, 544, 134 S.E. 670, 672 (1926). Where an agreеment is plain and unambiguous in its terms, the court is duty bound to give it full force and effect. See generally Bridgestone/Firestone, Inc. v. Prince William Sq. Assocs., 250 Va. 402, 407, 463 S.E.2d 661, 664 (1995) (citing Foods First, Inc. v. Gables Assocs., 244 Va. 180, 182, 418 S.E.2d 888, 889 (1992)); Burns v. Eby & Walker, Inc., 226 Va. 218, 221, 308 S.E.2d 114, 116 (1983).
Furthermore, the General Assembly has not evinced an intent to require divorcing parties to use particular language to meet the definition of “express” and to avoid the application of
The legislature has furthermore evinced no intent to foreclose the judicial application of contract principles to determine the intent of the parties with respect to the duration of
I believe the majority opinion contravenes the duty placed upon the court to interpret contracts so that the intentions of the parties are given full effect. See Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984) (finding that the polеstar for the construction of a contract is the intent of the contracting parties as expressed by them in the words they have used). The majority reaches its decision on the ground that our prior decisions do not permit any other interpretation when the property settlement agreement fails to “expressly” use the word, “remarriage,” in the provisions addressing the duration of support under such circumstances. In adopting this approach, the majority improperly “read[s] into contracts language which ... add[s] to or take[s] away from the meaning of the words already contain[ed] therein.” Great Falls Hdwe. Co. v. South Lakes Village Center Assocs., 238 Va. 123, 126, 380 S.E.2d 642, 644 (1989) (quoting Wilson, 227 Va. at 187, 313 S.E.2d at 398). The majority relies, in part, on a footnote in our decision in Gayler to support its conclusion. In Gayler, as noted еarlier, we found the parties intended that spousal support continue in the event of remarriage based on
The use of the term “only” [as in the phrase “only upon the death of the wife“] by the parties is alone not determinative of the issue. Absent the reference to the effect of remarriage in the original agreement, the language of the addendum standing alone would not be sufficient to evince an intent of the parties to avoid the operation of
Code §§ 20-109 and20-109.1 .
Id. at 86 n. 2, 455 S.E.2d at 280 n. 2.
The majority reasons that the terms of the Hardesty agreement, stating spousal support “cannot be terminated for any reason,” are “very similar” to the language in Gayler and that, consistent with Gayler, the decision of the trial court must be affirmed. It is apparent that the meaning of the term “only” in the Gayler footnote differs in no material respect from the meaning of the terms used in the property settlement agreement before us, which states that support would not terminate for “any reason.” While it is arguable that the word “only” and the phrase “for any reason” produce a semantically indistinguishable result, the semantic analysis is not determinative. The Gayler footnote does not construe or adopt a definition of the term, “only,” in the abstract; rather, it construes the term in the context of the contract provision hypothesized in the footnote, viz., spousal support is to terminate “only upon death.” The Gayler observation that such a formulation is sufficient to overcome the effect of
Furthermore, to the extent the treatment of the word, “only,” in Gayler footnote two was intended to address its use in other contexts, or to extend to the treatment of any synonymous terms such as those in the present matter, those
Applying contract principles to the case at bar, I would find the parties intended that spousal support not terminate upon the wife‘s remarriage. Section 15(d) of the Hardestys’ PSA states, “This support cannot be terminated for any reason.”
Accordingly, I would reverse the decision of the trial court.
KELSEY, J., with whom AGEE, J., joins, dissenting.
In my opinion, the majority correctly reads our prior panel decisions, including MacNelly v. MacNelly, 17 Va.App. 427, 430, 437 S.E.2d 582, 584 (1993), and Gayler v. Gayler, 20 Va.App. 83, 86 n. 2, 455 S.E.2d 278, 280 n. 2 (1995), to have extrapolated the phrase “unless otherwise provided” in
Hardesty v. Hardesty, 39 Va.App. 102, 107, 570 S.E.2d 878, 880 (Agee, J., concurring), en banc granted, 39 Va.App. 253, 572 S.E.2d 493 (2002).
Under a fair reading of the MacNelly-Gayler extrapolation, it can be said that “[b]y inference, our decisions forbid any other language, no matter how clear or express, from rebutting the statutory presumption unless the specific words ‘remarriage’ or ‘death’ appear in the operative contract provision.” Id. And that is true “regardless of how clear and unmistakable” the meaning of a contractual provision “may appear to a reader of the English language.” Id.
The extrapolation of MacNelly and Gayler evolved into the ratio decidendi of Langley v. Johnson, 27 Va.App. 365, 376, 499 S.E.2d 15, 20 (1998). Relying on Gayler footnote 2,
The dissent‘s effort to distinguish these cases away does not persuade me. For that reason, if I were sitting on a three-judge panel deciding this case, I too would take the majority‘s view—being bound by prior panel precedent under the inter-panel accord component of the stare decisis doctrine. See Hardesty, 39 Va.App. at 108, 570 S.E.2d at 881 (Agee, J., concurring) (“Accordingly, bound by the doctrine of stare decisis, I concur in the result.“). “This principle applies not merely to the literal holding of the case, but also to its ratio decidendi—the essential rationale in the case that determines the judgment.” Clinchfield Coal Co. v. Reed, 40 Va.App. 69, 73-74, 577 S.E.2d 538, 540 (2003).
In view of this principle, the issue now is whether the en banc court should overrule the intended (per the majority) or unintended (per the dissent) consequences of these prior panel decisions. We certainly have the authority to do so. See Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 143 (2002) (recognizing that prior panel decisions remain “subject to review by the Court of Appeals sitting en banc“);
A.
First, the extrapolation introduced into the law by MacNelly and Gayler, when carried to its logical extreme, as this case illustrates as well as any, produces a truly anomalous result. The majority holding boils down to a simple proposition: An agreement stating that spousal support “cannot be terminated for any reason” does not include termination for the reason of remarriage. Under the majority‘s reasoning, the agreement should have said something along these lines: “Support cannot be terminated for any reason, and, by saying ‘for any reason,’ we mean to include for the reason of remarriage.”
The majority argues that even though “on its face the language of the PSA seems to clearly reflect the intent of the parties,” the agreement‘s failure to use talismanic words creates ambiguity—the kind that could lead to further litigation and thereby “undermine the statute‘s purpose.” Ante, at 670, 581 S.E.2d at 217; see also Hardesty, 39 Va.App. at 107, 570 S.E.2d at 880 (also noting that “on its face the language of the
Had this case been decided by the application of the plain-meaning rule (which governs most other contracts in Virginia and, except for this one topic, still governs sеparation agreements), the trial court, the majority, and the dissent would be in full accord. Each would agree that the phrase “for any reason” means what it says and thus includes remarriage. No inductive inference is required here. The meaning comes directly from the words themselves.
In no other context have Virginia courts struggled over whether the term “any” means any. See, e.g., Sussex Cmty. Servs. Ass‘n v. Va. Soc‘y for Mentally Retarded Children, 251 Va. 240, 243, 467 S.E.2d 468, 469 (1996) (“The word ‘any,’ like other unrestrictive modifiers such as ‘an’ and ‘all,’ is generally considered to apply without limitation.“); Rubin v. Gochrach, 186 Va. 786, 797, 44 S.E.2d 1, 5-6 (1947) (“The words ‘any renewal’ are comprehensive, and logically include more than one renewal. The meaning of the word ‘any’ in the connection in which it was used seems to be clear and deliberate.“); Cox v. Cox, 16 Va.App. 146, 148, 428 S.E.2d 515, 516 (1993) (“The plain and unambiguous meaning of the word ‘any’ is ‘one or more indiscriminately from all those of a kind.‘” (quoting Webster‘s Third New International Dictionary 97 (1981))). In this case, therefore, the quest for greater clarity and less litigation has produced neither.
B.
Second, when the legislature requires that a verbatim contractual term be used, its enactments usually say exactly that.
The majority‘s suggestion that today‘s decision represents a cautious, and thus commendable, deference to the legislature is unconvincing. See Ante, at 669, 581 S.E.2d at 216-17. We are asked to believe that the General Assembly has implicitly endorsed the majority‘s holding because the legislature has not amended the statute to repeal our prior panel decisions. From that inaction, the majority reasons, we should infer the General Assembly has by silence put its legislative imprimatur on the majority‘s interpretation of
I concede the value of the general principle underlying this view. See, e.g., Burns v. Bd. of Supervisors, 227 Va. 354, 360, 315 S.E.2d 856, 860 (1984). But I would not apply it to cases where, as here, the interpretation that the legislature has allegedly endorsed by inaction is both unsettled and a product of piling dicta upon dicta. See Metro. Stevedore Co., 515 U.S. at 299-300, 115 S.Ct. at 2149-50. Legislative inaction “lacks persuasive significance,” Brown v. Gardner, 513 U.S. 115, 121, 115 S.Ct. 552, 557, 130 L.Ed.2d 462 (1994) (citation omitted),
Notes
Moreover, [this] “respect for precedent helps promote public confidence in the law.” [Note, Constitutional Stare Decisis, 103 Harv. L.Rev. 1344, 1349 (1990).] If an appellate сourt does not respect its own precedent, then the public, the bench, and the bar are less likely to have confidence in the decisions that are made. Furthermore, employing the doctrine of stare decisis assures the public that an appellate court‘s judgments are not arbitrary and that the court is controlled by precedent that is binding without regard to the personal views of its members. Newman v. Erie Insurance Exchange, 256 Va. 501, 510, 507 S.E.2d 348, 353 (1998) (Compton, J., joined by Carrico, C.J., dissenting). In keeping with the principles articulated immediately above, we recognize that our existing precedent on this issue has provided a longstanding “bright line rule” for the bar and the public, which ought not lightly be cast aside.