Deborah MacDOUGALL v. Richard S. LEVICK. Richard S. Levick v. Deborah MacDougall.
Nos. 1981-14-4, 1982-14-4.
Court of Appeals of Virginia.
Feb. 23, 2016.
782 S.E.2d 182
Edna Ruth Vincent (Richard J. Colten; Fairfax, James A. Watson, II; Colleen M. Haddow; Mary C. Huff; Fairfax, Colten Cummins Watson & Vincent, P.C., on briefs), for Richard S. Levick.
Present: BEALES, McCULLOUGH and O‘BRIEN, JJ.
McCULLOUGH, Judge.
We consider a number of issues in these consolidated appeals.1 Deborah MacDougall challenges the trial court‘s rulings with regard to whether she contracted a valid marriage with Richard S. Levick and the enforceability of the parties’ marital agreement. Levick challenges the court‘s refusal to compel reimbursement of pendente lite support and attorneys’
BACKGROUND
I. THE PARTIES HOLD A MARRIAGE CEREMONY WITHOUT A MARRIAGE LICENSE
Levick and MacDougall decided to get married at “an extraordinarily busy time.” They had just purchased a home, and the wedding planning occurred while they were busy packing their belongings in anticipation of the move. At the same time, they were still caring for two young children, and Levick was busy running his business. The couple set their wedding date for December 21, 2002. The wedding ceremony was to take place at their new home in McLean, Virginia. Neither Levick nor MacDougall thought about obtaining a marriage license because neither realized that they needed one.
Rabbi Binyamin Raviv Biber had never performed a wedding in Virginia. He registered with a Virginia circuit court so he could officiate on this occasion. On the wedding date, Rabbi Biber checked final preparations and noticed that there was no marriage license. This “was a surprise” to him because he had never performed a wedding “where the marriage license wasn‘t actually there.” The rabbi and the parties decided to “deal with that later because” everyone was “ready to do the wedding.” Rabbi Biber instructed the parties to deliver a marriage license for his signature, as soon as possible, once they obtained one. The ceremony went on as scheduled.
Approximately two weeks later, on January 6, 2003, the couple went to the Fairfax County courthouse and obtained a marriage license. That same day, Levick mailed it, via FedEx, to Rabbi Biber at his Maryland address. Rabbi Biber was traveling at the time but signed the marriage license upon his return on January 21, 2003. He listed the marriage date as January 21, 2003, the date he signed it. He listed McLean,
II. THE PARTIES LITIGATE DIVORCE AND ANNULMENT
MacDougall filed for divorce on March 21, 2011. She attached to her divorce complaint a marital agreement dated July 20, 2009. This marital agreement stated that it “shall form the foundation of a divorce or separation agreement, should either come to pass” and, among other clauses, stipulated that Levick would pay MacDougall annual spousal support of $150,000. MacDougall sought an award of pendente lite support in accord with this agreement. On September 16 and November 2, 2011, the court ordered pendente lite support for MacDougall in the amount of $8,000 per month.
Following protracted litigation over the validity of the marital agreement, the court ruled, on August 27, 2012, that Levick had made a knowing, explicit, voluntary, and valid waiver of his right to contest the marital agreement. The trial court relied on counsel‘s statements at a hearing on February 17, 2012, that Levick was withdrawing his challenges to the agreement and that he would “live with the agreement, as must Ms. MacDougall.” The court vacated the prior pendente lite support orders and entered a new order incorporating the marital agreement. This order required Levick to pay monthly support of $12,500 ($150,000 annually).
On February 27, 2013, the litigation took a sharp turn when Levick filed a petition for declaration of marriage status. He contended that the parties’ failure to follow statutory prerequisites meant that they never lawfully married. He argued that there was no marriage license when the rabbi performed the ceremony, and after the parties obtained a license, they did not solemnize a marriage. He argued that the invalidity of the marriage required the court to set aside the marital agreement. He moved for leave to amend his pleadings to
On August 23, 2013, the court granted MаcDougall‘s motion for pendente lite attorneys’ fees in the amount of $191,288.
On October 10, 2013, following an evidentiary hearing, the court entered an order holding that the marriage was void ab initio because the parties had not complied with the statutory requirements for contracting a lawful marriage in Virginia. The court declined to resolve at that time the other relief Levick sought.
In the wake of this ruling, on October 3, 2014, the court held that the marital agreement was invalid, predicated as it was on the parties’ mistaken belief that they were married. The court held that Levick‘s earlier waiver did not foreclose his new challenge, explaining that, because Levick was not aware of the potential invalidity of the marriage on February 17, 2012, any waiver of the right to challenge the marital agreement on the absence of a marriage would not have been knowing and voluntary. The court suspended, effective November 21, 2013, any pendente lite support orders. The court declined to order MacDougall to reimburse Levick for past support payments, although it observed that it had the discretion to do so. Finally, on August 15, 2014, the court ordered Levick to pay additional attorneys’ fees in the amount of $100,000—rejecting MacDougall‘s request for $513,252. MacDougall recеived a total of $291,288 in attorneys’ fees and $304,500 in support during the course of the litigation.
These consolidated appeals followed.
I. THE TRIAL COURT WAS WELL WITHIN ITS DISCRETION WHEN IT ALLOWED LEVICK TO AMEND HIS PLEADINGS TO CHALLENGE THE VALIDITY OF THE MARRIAGE.
MacDougall argues that Levick should not have been granted leave to amend to challenge the validity of the marriage. She notes that the amendment followed extensive and costly litigation. She also points out that, from the litigation‘s inception, Levick had full knowledge of the facts that gave rise to the claim on which his amendment was based. She argues that allowing Levick to amend, under those circumstances, did not serve the “ends of justice.”
We find no abuse of discretion. At the time Levick moved to amend, the litigation, while extensive, had not reached anything close to finality. There was no prejudice to MacDougall‘s ability to investigate and litigate the facts alleged in Levick‘s amended pleading. Moreover, “public policy forbids that a [party] should be barred from bringing a suit to declare null a marriage contract which never had any valid existence.” Heflinger v. Heflinger, 136 Va. 289, 301, 118 S.E. 316, 320 (1923). With that threshold question resolved, we proceed to the merits of MacDougall‘s appeal.
A. Historical background of our marriage statutes
“Marriage is very properly regarded as the foundation of human society.” Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425, 430, 4 S.E.2d 364, 366 (1939). Aside from narrow constitutional constraints, the legislature “has the power to determine who shall assume or occupy the matrimonial relationship within its borders.” Id.
The status of marriage ... differs from other contracts in this, that the rights, obligations or duties arising from it are not left entirely to be regulated by the agreement of the parties, but are to a certain extent matters of municipal regulation over which the parties have no control by any declaration of their will.
Herring v. Wickham, 70 Va. (29 Gratt.) 628, 635 (1878) (quoting Duntze v. Levett (Dec. 21, 1816), in James Fergusson, Reports of Some Recent Decisions by the Consistorial Court of Scotland App. at 397 (1817)).
Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subjеct to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.
Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed. 654 (1888).
The importance of marriage prompted legislative attention early in Virginia‘s history. Indeed, “the formal validity of marriage took a substantial share of the legislation” promulgated before independence. Dominik Lasok, Virginia Bastar-
For nearly its entire history, from the earliest colonial times down to the present day, the legislaturе has spelled out what formalities are required to contract a lawful marriage in Virginia. It has long stated what sorts of formal defects will not affect a marriage‘s validity. See
B. Lawful marriage is presumed.
“The public policy of Virginia ... has been to uphold the validity of the marriage status as for the best interest of society, except where marriage is prohibited between certain persons.” Needam v. Needam, 183 Va. 681, 686, 33 S.E.2d 288, 290 (1945). “The presumption of marriage from cohabitation apparently matrimonial is one of the strongest presumptions known to the law.” Eldred v. Eldred, 97 Va. 606, 625, 34 S.E. 477, 484 (1899). Further, a properly recorded, returned, and certified marriage certificate “shall be prima facie evidence of the facts therein set forth in all courts of this Commonwealth.”
C. Virginia law requires a license, followed by solemnization, to contract a lawful marriage.
To the extent there might be any doubt on the subject, however, other statutes dispel it. Most significantly,
Every marriage license issued under
§ 20-14 shall constitute authority for a period of only sixty days from the date of issuance for the solemnization of a marriage of the licensees. Whenever such sixty-day period shall have elapsed without the solemnization of a marriage of the licensees, the license shall expire.The provisions of this section shall not be construed to prevent licensees from applying for or receiving an additional license, either before or after expiration of any license, but no new license shall be issued except in compliance with all provisions of law applicable to the issuance of a license in the first instance.
Finally, “[t]he clerk issuing any marriage license shall require the parties contemplating marriage to state, under oath, the information required to complete the application for marriage license,”
D. The parties never solemnized a marriage “under a license.”
MacDougall contends that the parties did, in fact, solemnize their marriage after they obtained a license. She argues that “the fact of mailing the license to the Rabbi coupled with the prior understanding that it would be an act communicating their assent to mаrriage also was sufficient to constitute a solemnization after the issuance of the license.” She further argues that no Virginia authority defines “solemnization” and maintains that submitting the license to the rabbi, having already exchanged vows before him, was solemnization as the parties chose to define it.
In analyzing a statute, we give each word “its ordinary meaning, given the context in which it is used.” Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Dep‘t of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)). To “solemnize” means “[t]o enter into (a marriage, contract, etc.) by a formal act, usu[ally] before witnesses.” Solemnize, Black‘s Law Dictionary, supra; see also Webster‘s Third New International Dictionary 2168 (unabr. 2002) (defining “solemnize” as “to perform with pomp or ceremony or according to legal forms; esp: to unite a couple in (marriage) with religious ceremony: celebrate (a marriage) with religious rites“).
Mailing a license via exрress mail for a signature when the parties are not even present does not constitute “solemnization” under any reasonable definition of the term.4
E. Virginia‘s statutory formalities for contracting a lawful marriage are mandatory, not directory.
In Offield, 100 Va. at 251, 40 S.E. at 910, our Supreme Court considered
whether or not a contract, if proved, entered into between a man and a woman ... by which they mutually agreed to become husband and wife, without any celebration and without license, constitutes a valid marriage in this State.... In other words, is a common law marriage entered into in this State valid?
The Court answered that question in the negative, observing that Virginians, “from the passage of our earliest statutes on the subject of marriage,” had regarded the statutory formalities as mandatory rather than directory. Id. at 260, 40 S.E. at 913. The Court acknowledged that this holding “may result in hardship in some cases” but took the view that “the lesser injury will come from an adherence to the statutory requisites than otherwise.” Id. at 261, 40 S.E. at 914 (quoting In re
F. The parties never married under Virginia law.
MacDougall counters that the trial court erred in breaking down the process they employed into “unrelated, discrete events,” rather than viewing it as a continuum. But a simple sequence of events is precisely what
“Marital status, of course, arises not from the simple declarations of persons nor from the undisputed claims of litigants. It is rather created and dissolved only according to law.” Hames v. Hames, 163 Conn. 588, 316 A.2d 379, 382 (1972) (citation omitted). And we “can but construe the law as it is written,” Eldred, 97 Va. at 629, 34 S.E. at 486, and “[t]here is no authority for the parties by their actions outside of the law to invest the courts with power to treat a relationship as a lawful marriage,” Shoustari v. Zamani, 39 Va.App. 517, 520, 574 S.E.2d 314, 315 (2002) (quoting Kleinfield v. Veruki, 7 Va.App. 183, 190, 372 S.E.2d 407, 411 (1988)).
“It is not for this court to devise means of making marriage difficult. It is our duty, however, to recognize the law as it exists.” Hames, 316 A.2d at 385. Applicable statutes and cases all point to the inеscapable conclusion: the parties’ failure to follow the formal requirements to contract a
III. NEITHER THE CURATIVE STATUTE NOR EQUITABLE DOCTRINES COMPEL A DIFFERENT OUTCOME
A. Code § 20-31, the curative statute, does not apply.
The General Assembly has enacted the following curative statute, titled “Belief of parties in lawful marriage validates certain defects“:
No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfectiоn in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.
B. The marriage was voidable rather than void ab initio.
MacDougall, contending that her marriage is voidable rather than void, offers a final line of defense by invoking equitable doctrines. Specifically, she argues that laches and estoppel preclude Levick from challenging the marriage‘s validity. Levick, in contrast, argues that a purported marriage like this one is void ab initio.
Initially, we agree with MacDougall‘s contention that the defect here rendered the marriage voidable. In determining whether the marriage is void ab initio or voidable,
The common law drew a distinction between “canonical” impediments, that is, impediments to marriage drawn from church or canon law, such as consanguinity, affinity, and impotence, which rendered a marriage voidable, and “civil” impediments, such as bigamy and lack of mental capacity, which rendered a marriage void ab initio. Toler, 173 Va. at 432, 4 S.E.2d at 367. Levick argues that the impediment here is not canonical and, therefore, it must be a civil one that renders the marriage void ab initio. The General Assembly, howеver, has comprehensively regulated marriage by statute, including regulations directed at what previously constituted canonical impairments. See
In Virginia there is no statutory provision declaring that marriages involving persons under the age of consent are either void or voidable, and there are no Virginia cases so holding. Under the circumstances here, the marriage of the parties was voidable only and not void. . . . The parties are husband and wife unless and until the marriage is annulled.
According to Bishop‘s influential treatise,7
A marriage is termed void when it is good for no legal purpose, and its invalidity may be maintained in any
proceeding, in any court, between any parties, whether in the lifetime or after the death of the supposed husband and wife, and whether the question arises directly or collaterally.
In contrast,
[a] marriage is voidable when in its constitution there is an imperfection which can be inquired into only, during the lives of both of the parties, in a proceeding to obtain a sentence declaring it null. Until set aside, it is practically valid; when set aside, it is rendered void from the beginning.
Id. at § 259, at 107-08.
Bishop‘s summary is consistent with Virginia law. In Toler, the Supreme Court embraced the passage we cite above, noting that
[a] void marriage confers no legal rights, and, when it is determined that the marriage is void, it is as if no marriage had ever been performed .... A voidable marriage differs from a void marriage in that it may be afterwards ratified by the parties ... and usually is treated as a valid marriage until it is decreed void.
173 Va. at 432, 4 S.E.2d at 367 (emphasis added) (quoting Frank H. Keezer, The Law of Marriage and Divorce, § 24, at 16 (1906)); see also Alexander, 192 Va. at 13, 63 S.E.2d at 748-49.8
Whether void or voidable, either way, a declaration that an attempted marriage like this one is void results in a judicial declaration that the marriage is a nullity.9 The difference lies in who can challenge the marriage and when such a challenge can be raised. The General Assembly has not
The consequences of a contrary holding do not escape our notice. If such marriages are deemed void ab initio, anyone could challenge the validity of the marriage, at any time. Thus, for example, disgruntled heirs could preclude a mother
Levick argues that finding marriages like this one voidable rather than void ab initio would be tantamount to recognizing common law marriages, in contravention of longstanding Virginia public policy. We disagree. First, the parties here in fact held a ceremony and obtained a marriage license, and, except for performing the ceremony under license, otherwise fulfilled the obligations imposed on them by law such as filing the marriage certificate in the clerk‘s office. Therefore, unlike common law marriages, where no celebration was necessary and where there was no necessity of record evidence attesting to the parties’ marriage, the parties here attempted (but failed) to follow the strictures of the law. Second, a marriage like this one can in fact be declared void once the parties move to set it aside. We certainly do not ignore the strictures of
C. Equitable doctrines do not apply.
We generally reject the application of equitable doctrines in modern divorce suits because this body of law is now chiefly statutory in character. See Bajgain v. Bajgain, 64 Va. App. 439, 457-58, 769 S.E.2d 267, 276 (2015).13 Assuming, however, without deciding, that these equitable doctrines can be brought to bear in the context of annulment litigation, we
“Laches is the neglect or failure to assert a known right or claim for an unexplained period of time under circumstances prejudicial to the adverse party.” Princess Anne Hills Civic League, Inc. v. Susan Constant Real Estate Trust, 243 Va. 53, 58, 413 S.E.2d 599, 602 (1992). “The burden of proving laches is upon the party who asserts it.” Id. The “[e]lements necessary to establish equitable estoppel, absent a showing of fraud and deception, are a representation, reliance, a change of position, and detriment.” Lataif v. Commercial Indus. Constr., Inc., 223 Va. 59, 63, 286 S.E.2d 159, 161 (1982) (quoting T. v. T., 216 Va. 867, 873, 224 S.E.2d 148, 152 (1976)). “Because the doctrine of estoppel prevents the showing of the truth, it is applied rarely and only from necessity.” Princess Anne Hills Civic League, Inc., 243 Va. at 59, 413 S.E.2d at 603. “[T]he party who relies upon estoppel must prove each element by clear, precise, and unequivocal evidence.” Id.
The Supreme Court applied the principles of unclean hands, equitable estoppel, and “estoppel by laches” in McNeir v. McNeir, 178 Va. 285, 290-91, 16 S.E.2d 632, 633-34 (1941). In that case, the former wife had challenged the validity of a divorce decree, not a marriage. Id. at 289, 16 S.E.2d at 633. With respect to “estoppel by laches,” the Court held that the doctrine barred the former wife from challenging the validity of the divorce because she did not challenge it until four years аfter obtaining the decree. The Court concluded that “she must have known” that her former husband had remarried and yet she took no prompt action to set aside the divorce decree. Id. at 291, 16 S.E.2d at 633-34. The Court explained the rationale for barring the challenge to the divorce decree:
The safety of society imperatively demands that one who seeks to overthrow an apparently valid decree of divorce should proceed with the utmost promptness upon discovery of the facts claimed to show its invalidity. It must be apprehended that a man who has secured a decree of divorce, valid on its face, may endeavor to marry again, thus
entangling some innocent woman in most intolerable difficulties, should the divorce be afterwards annulled. In such a case, one who seeks the aid of equity should, in limine, make it appear that she has proceeded in good faith and with reasonable diligence.
Id. at 292, 16 S.E.2d at 634 (quoting Dry v. Rice, 147 Va. 331, 340, 137 S.E. 473, 475-76 (1927)). Those principles, which govern challenges to the validity of a divorce, are inapplicable in a suit seeking a declaration that a marriage was never lawfully contracted. In addition, unlike the wife in McNeir who failed to act with “utmost promptness” in learning of the problems associated with the divorce, Levick acted promptly upon discovering that the marriage might have been, or was, invalid.
Furthermore, both Levick and MacDougall were aware of the fact that the marriage had taken place without a license.
It is essential to the application of the principles of equitable estoppel, or estoppel in pais, that the party claiming to have been influenced by the conduct or declarations of another to his injury, was not only ignorant of the true state of facts, but had no convenient and available means of acquiring such information, and where the facts are known to both parties, and both had the same means of ascertaining the truth, there can be no estoppel.
Fitzgerald v. Fitzgerald, 194 Va. 925, 930, 76 S.E.2d 204, 207 (1953) (quoting Lindsay v. James, 188 Va. 646, 659, 51 S.E.2d 326, 332 (1949)). Here, the parties were equally knowledgeable about the operative facts.
MacDougall, citing decisions from other states, also urges us to adopt the concept of marriage by estoppel. We must decline the invitation. The legislature is the rightful branch of government to set Virginia‘s public policy with regard to an institution so foundational, and of such paramount importance to society, as marriage. This area of Virginia law has been comprehensively regulated since 1628, if not еarlier, and it is
IV. THE TRIAL COURT DID NOT ERR IN SETTING ASIDE THE PARTIES’ MARITAL AGREEMENT.
On July 20, 2009, the parties entered into a marital agreement that spelled out Levick‘s obligations to MacDougall in the event of a separation or divorce. Following Levick‘s successful challenge to the validity of the marriage, he persuaded the trial court to set aside this agreement on the ground that it was the product of mutual mistake of fact. MacDougall challenges the trial court‘s ruling setting aside the agreement.
A. The record supports the trial court‘s determination that Levick‘s waiver did not encompass a claim of mutual mistake of fact.
Following extensive litigation on the subject, the trial court found that Levick had made a “knowing, explicit, voluntary, valid bona fide waiver” of his right to challenge the validity of the marital agreement. MacDougall argues that the trial court erred in allowing Levick to challenge the validity of the marital agreement, despite this waiver.
Before making this waiver, Levick had challenged the agreement on various grounds but, notably, he had not raised any argument concerning a mutual mistake of fact with regard
A “waiver is an intentional relinquishment of a known right,” Stanley‘s Cafeteria, Inc. v. Abramson, 226 Va. 68, 74, 306 S.E.2d 870, 873 (1983),16 and it is “usually a question for the trier of fact,” Link Assocs. v. Jefferson Standard Life Ins. Co., 223 Va. 479, 485, 291 S.E.2d 212, 216 (1982). See also Heinrich Schepers GmbH & Co. v. Whitaker, 280 Va. 507, 515-16, 702 S.E.2d 573, 577 (2010) (“Usually, proof of waiver is a question for the trier of fact.” (quoting Mgmt. Enters. v. The Thorncroft Co., 243 Va. 469, 474, 416 S.E.2d 229, 232 (1992))).
The essential elements of waiver are knowledge of the facts basic to the exercise of the right and intent to relinquish that right. Waiver of a legal right will be implied only upon clear and unmistakable proof of the intention to waive such right for the essence of waiver is voluntary choice. Cashion v. Smith, 286 Va. 327, 334, 749 S.E.2d 526, 530 (2013) (quoting Chawla v. BurgerBusters, Inc., 255 Va. 616, 622-23, 499 S.E.2d 829, 833 (1998)). A waiver “must be distinctly
The record supports the trial court‘s conclusion that Levick waived the right to challenge a marital agreement in a divorce suit, i.e. his waiver presupposed the existence of a valid marriage. There is no dispute that, when Levick made this waiver, he was unaware of any claim that he was not legally married. Because waiver is usually a question for the trial court, and because thе record supports the trial court‘s finding that Levick‘s waiver did not extend to a claim based on the lack of a valid marriage, we affirm the finding of the trial court that Levick did not waive his right to seek rescission of the marital agreement on the basis of mutual mistake of fact.
B. The trial court properly ordered rescission of the marital agreement on the basis of mutual mistake of fact.
MacDougall next argues that the trial court erred in rescinding the marital agreement because the mutual mistake was one of law, not fact. The law does not support this contention.
“Property settlement agreements are contracts ... subject to the same rules of formation, validity, and interpretation as other contracts.” Boedeker v. Larson, 44 Va. App. 508, 518, 605 S.E.2d 764, 769 (2004) (alteration in original) (quoting Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986)). A litigant must “prove by clear and convincing evidence the grounds alleged to void or rescind the agreement.” Webb v. Webb, 16 Va. App. 486, 491, 431 S.E.2d 55, 59 (1993) (quoting Drewry v. Drewry, 8 Va. App. 460, 463, 383 S.E.2d 12, 12 (1989)).
“If certain facts are assumed by both parties as the basis of the contract, and it subsequently appears that
[w]henever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities, or other relation, either of property or contract or personal status, and enters into some transaction, the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests, or relations, or of carrying out such assumed duties or liabilities, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact.
Burton v. Haden, 108 Va. 51, 58, 60 S.E. 736, 738 (1908) (quoting 2 John Norton Pomeroy, A Treatise on Equity Jurisprudence § 849, at 1498 (3d ed. 1905)).
That is the situation with respect to the marital agreement. When Levick and MacDougall entered into the marital agreement, both were “ignorant or mistaken” about their “antecedent and existing private legal rights” regarding their marriage. Their mutual mistake differs from those in the authority cited by MacDougall. The mistakes at issue in those cases involved mistakes about the aрplication of general principles of law rather than mistakes about an antecedent private right or status that lay at the foundation of an agreement. See Pillow v. Pillow, 13 Va. App. 271, 275, 410 S.E.2d 407, 410 (1991) (mistake as to tax deductibility of spousal support payments); Piedmont Trust Bank v. Aetna Cas. & Sur. Co., 210 Va. 396, 400-02, 171 S.E.2d 264, 267-68 (1969) (mistake as to scope of coverage of insurance policy).
C. The marital agreement was not a “family settlement” of a controversy concerning the validity of the marriage or the rescission of the parties’ marital agreement.
In an effort to uphold the marital agreement, MacDougall invokes equitable principles that govern the settlement of family disputes. We find those principles inapplicable.
Virginia law favors the “repose of family relationships.” Weade v. Weade, 153 Va. 540, 546, 150 S.E. 238, 239 (1929).
Compromises having for their object the settlement of family difficulties or controversies are favored at law and in equity if at all reasonable. The termination of such controversies is considered a valid and sufficient consideration for the agreement, and the court will go further to sustain it than it would under ordinary circumstances. Accordingly, it has been laid down as a general rule that a family agreement entered into on the supposition of a right, or of a doubtful right, although it afterwards turns out that the right was on the other side, is binding, and the right cannot prevail against the agreement of the parties.
Id. at 548, 150 S.E. at 240 (quoting 12 Corpus Juris, Compromise and Settlement § 16, аt 322-23 (1917)). Courts will uphold an agreement the parties have “intentionally entered into ... to compromise and settle those doubts.” Pigg, 224 Va. at 125, 294 S.E.2d at 859.
Whatever anticipated controversy the parties compromised or settled by their marital agreement, it was neither the marriage‘s validity nor the agreement‘s rescission. At most, potential property and support controversies, resulting from a divorce or separation, were settled by the agreement. The question of the agreement‘s rescission for mutual mistake of marital status, however, was not. Such a question was not even anticipated at the time of the agreement‘s execution.
V. THE JUDICIAL DECLARATION THAT THE PARTIES NEVER LAWFULLY MARRIED DOES NOT REQUIRE THE COURT TO ORDER MACDOUGALL TO DISGORGE HER PENDENTE LITE AGREED SUPPORT.
In his appeal, Levick contends that the trial court erred when it refused to order MacDougall to refund the pendente lite and agreed support that he paid before the court declared the marriage void. Levick argues that, once the trial court declared the marriage void ab initio, the trial court lacked the authority to impose a pendente lite support obligation and should have required MacDougall to return all of the pendente lite support she received. He also argues that the support paid under the incorporated marital agreement should have been returned.
A. The trial court had jurisdiction to award pendente lite support.
Levick first contends that the trial court lacked jurisdiction when it awarded MacDougall pendente lite support. He points us to the language of
Relying on Iron City Savings Bank v. Isaacsen, 158 Va. 609, 164 S.E. 520 (1932), Levick contends that the court did not have “actual jurisdiction” to grant pendente lite support. His reliance, however, is misplaced. Iron City Savings Bank had sued to recover a debt from Isaacsen. Id. at 616, 164 S.E. at 522. After the bank obtained a judgment, Isaacsen sought to set it aside for the bank‘s failure to serve indispensable parties. Id. at 620-22, 164 S.E. at 523-24. The trial court did so and allowed Isaacsen to further participate in the suit, which he successfully defended on the statute of limitations. See id. at 622-23, 164 S.E. at 524. The bank appealed. Id. at 623, 164 S.E. at 524. In rejecting the bank‘s argument, the Supreme Court addressed the failure to serve indispensable parties, noting that, “[f]or the court to have actual jurisdiction to exercise its potential jurisdiction, it must acquire jurisdiction of the person of all the parties necessary or of the res necessary to sustain a decree granting the equitable relief prayed.” Id. at 624, 164 S.E. at 524-25. Here, the trial court unquestionably had jurisdiction over the parties аnd, in Iron City‘s phrasing, both potential and actual jurisdiction.
We previously held, in Kleinfield, 7 Va. App. at 190, 372 S.E.2d at 411, that a trial court has the discretion to order pendente lite support in an annulment suit “even if the marriage was void.” See also Henderson v. Henderson, 187 Va. 121, 127-28, 46 S.E.2d 10, 13 (1948). This conclusion accords with the majority rule,17 and Levick does not point to any development, since Kleinfield, to undermine the strength of its holding. Annulment and pendente lite support are longstand-
Levick‘s textual argument—that
In short, although a marriage may ultimately be declared void, that does not alter a trial court‘s power, expressly conferred by statute, to enter certain orders during the pendency of the litigation. Those orders are not rendered retroactively void, even if the marriage ultimately proves to be.
B. The facts and circumstances support the trial court‘s exercise of discretion in declining to order MacDougall to repay the pendente lite support.
Levick next argues that, even if the trial court had the authority to order pendente lite support, it should have exercised its discretion to order repayment.18 This is so, he
“[T]he abuse of discretion standard requires a reviewing court to show enough deference to [the trial court‘s] judgment that [it] does not reverse merely because it would have come to a different result in the first instance.” Lawlor v. Commonwealth, 285 Va. 187, 212, 738 S.E.2d 847, 861 (2013) (quoting Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008)). “Accordingly, ‘when a decision is discretionary . . . . the court has a range of choice, and . . . its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.‘” Id. at 212-13, 738 S.E.2d at 861 (alterations in original) (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)).
The evidence established a mutually beneficial relationship. Levick was, indeed, a very good provider. His success in business ensured the couple a very high standard of living. On the other hand, Levick benefitted personally and professionally from MacDougall‘s efforts. She helped him with entertaining and networking. She not only worked without pay for Levick‘s company but also loaned it money at a crucial juncture. She testified that she contributed her own financial resources for the family‘s well-being. Furthermore, as MacDougall points out, when the court entered the pendente lite orders, there was no claim that the marriage was void. On these facts, we detect no abuse of discretion.
C. The court had jurisdiction to incorporate the parties’ agreement on support.
Levick reiterates his jurisdictional arguments to challenge the trial court‘s authority to incorporate the parties’ marital agreement into an order. He also contends that the
Initially, the trial court set monthly pendente lite support at $8,000. On August 27, 2012, the trial court entered an order compelling Levick to pay support in accord with the marital agreement. That order superseded the earlier pendente lite support orders. In the wake of its ruling that the marriage was void ab initio, the court suspended pendente lite and agreed support payments, effective November 21, 2013.
The trial court‘s initial decision to incorporate the parties’ marital agreement into its order was not void for lack of jurisdiction.
D. Levick did not request appropriate restitution from the trial court.
Levick contends that the trial court was required to order MacDougall to repay any support expended under the marital agreement, which the court later rescinded for mutual mistake of fact. He cites Hilliard v. Fox, 735 F. Supp. 674 (W.D. Va. 1990), for the general proposition that one who pays money under a mistake of fact is entitled to restitution, and Hall v. Graham, 112 Va. 560, 72 S.E. 105 (1911), to argue that he is entitled to interest on the funds he paid under mutual mistake of fact.
VI. THE COURT COMMITTED NO REVERSIBLE ERROR IN DECLINING TO ORDER MACDOUGALL TO RETURN PREVIOUS PAYMENTS FOR ATTORNEYS’ FEES.
A. The trial court had jurisdiction to order Levick to pay attorneys’ fees.
Levick again contends that the trial court lacked jurisdiction to award attorneys’ fees once the court determined that the marriage was void.
For the same reasons noted in connection with Levick‘s challenge to the award of pendente lite support, we conclude that the trial court had actual and potential jurisdiction to order Levick to pay attorneys’ fees. The trial court had jurisdiction over the divorce and annulment suits and had jurisdiction over the parties. By statute, it could enter various interlocutory orders. The later annulment decree did not render void ab initio the interlocutory orders entered in connection with the litigation.
As with his challenge to the pendente lite support order, Levick argues that awarding attorneys’ fees constituted an abuse of discretion both for the initial award of $191,288 and the later award of $100,000. He argues that MacDougall was fully aware of the facts that led the trial court to conclude that the marriage was void but, instead of conceding, chose to litigate. He complains of her “obstructionist” conduct and makes much of the trial court‘s ultimate rejection of her arguments. He argues that, because he ultimately prevailed, MacDougall should not have received additional fees. He also contends that MacDougall demonstrated an ability to pay attorneys’ fees.
“The key to a proper award of counsel fees is reasonableness under all the circumstances.” Lightburn v. Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281, 285 (1996) (citing McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985)). In making such an award, a trial court is directed to consider “the circumstance of the parties,” Barnes v. Barnes, 16 Va. App. 98, 106, 428 S.E.2d 294, 300 (1993), and the “equities of the entire case,” Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 (1989).
Levick chose to extensively litigate the validity of the marital agreement, only to concede that he was bound by it, followed by an attempt to retract that concession. Only after this extensive (and unsuccessful) challenge to the marital agreement‘s validity did Levick switch to the legal theories that ultimately prevailed. The trial court, while noting that it did not charge Levick with bad faith, stated from the bench that Levick could have raised the validity of the marriage “at the beginning of this litigation and Mrs. MacDougall would not have had to spend several hundred thousand dollars in litigating marital related issues before we get to the validity of the marriage.” The trial court also heard evidence concerning the significant disparity in resources available to Levick and to MacDougall. The court rejected Levick‘s argument that Mac-
VII. APPELLATE ATTORNEYS’ FEES
Finally, both parties request attorneys’ fees for their efforts on appeal. Regarding MacDougall‘s appeal, the parties have “addressed appropriate and substantial issues” and have not “generated unnecessary delay or expense in pursuit of [their] interests.” Estate of Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004). We conclude that an award of fees is not justified as to that appeal. Our review of the grounds raised in Levick‘s appeal, however, leads us to conclude that appellаte attorneys’ fees are justified. Accordingly, we remand the case to the circuit court for an assessment of the fees that MacDougall incurred in defending Levick‘s appeal.
CONCLUSION
We affirm the judgment of the trial court.19
Affirmed and remanded.