Opinion
Record No. 2009-93-4
Decided: November 15, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Thomas S. Kenny, Judge
Affirmed.
Dorothy M. Isaacs (Beverly L. Kiefer, on briefs), for appellant.
Jeffrey A. Vogelman (Thomas, Ballenger, Vogelman Turner, P.C., on brief), for appellee.
Present: Chief Judge Moon, Judge Baker and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Max Lanier Jarrell (husband) appeals the decision of the circuit court holding he was not entitled to reduce his monthly support payments to Lois Jean Jarrell (wife) under the terms of their property settlement agreement.
Husband contends (1) the trial court erred when it failed to apportion the single support payment into amounts attributable to child and spousal support; (2) erred when it refused to reduce the amount of support; and (3) erred by declining to hear additional testimony concerning the parties' property settlement agreement.
"Property settlement and support agreements are subject to the same rules of construction and interpretation applicable to contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987). "[O]n appeal if all the evidence which is necessary to construe a contract was presented to the trial court and is before the reviewing court, the meaning and effect of the contract is a question of law which can readily be ascertained by this court." Id.
In pertinent part, the original property settlement agreement stated the following:
3.0 SUPPORT OF THE WIFE AND CHILDREN
3.1 The Husband shall pay to the Wife for the support and maintenance of herself and the minor children the sum of $876.00 monthly, one-half payable in the first of the month, the remainder on the 15th of the month. The periodic payments shall be subject to the following:
a. The payments shall terminate with the first payment due after the Wife's remarriage.
b. The payments shall terminate with the first payment due after the Wife's death.
c. The payments shall be considered alimony for the Wife and shall be reported as income by her and deducted from the Husband's income and will not cease upon majority of the children.
Paragraph 3.2 provided that, upon termination of the payments under 3.1(a):
the Husband shall continue to make periodic payments to the Wife as support for the children in the amount of Six Hundred Dollars monthly, subject to the following:
* * * * * * *
b. The payments shall be reduced by fifty percent upon the emancipation of Max Jarrell, II and cease upon the emancipation of Christopher Jarrell.
Paragraph 11.3 reemphasized that "the periodic payments to the Wife under paragraph 3.1 are taxable to her and deductible by the Husband for federal income tax purposes."
The parties twice amended this agreement. A 1988 amendment modified the visitation schedule for Christopher. A 1989 amendment changed the custody of Christopher from wife to husband. The original paragraph 3.2 was deleted and replaced with a provision requiring wife to pay husband "for the support and maintenance of the remaining unemancipated child . . . the sum of $265.00 per month . . . ." While paragraph 11.4 was also modified to allow husband to claim Christopher as a dependent for purposes of a federal income tax exemption, no change was made to paragraph 11.3.
Failure to Apportion and Reduce Support
In Wickham v. Wickham, 215 Va. 694, 213 S.E.2d 750 (1975), the Supreme Court of Virginia noted that an agreement to pay $930 per month " 'for the support and maintenance of the wife and the. . . minor children of the parties' " was a unitary support award fully deductible by the father pursuant to federal tax law applicable at the time. Id. at 694, 213 S.E.2d at 750. See Commissioner v. Lester, 366 U.S. 299 (1961). Under appropriate circumstances, a unitary award was apportionable into amounts attributable to spousal and child support. See Carter v. Carter, 215 Va. 475, 481, 211 S.E.2d 253, 258 (1975). However, the Supreme Court in Wickham refused to apportion a unitary support award and rejected the proposition that "a court, without any necessity therefor, may apportion a unitary award made pursuant to an approved settlement agreement." Wickham, 215 Va. at 696, 213 S.E.2d at 751.
In refusing to apportion the unitary award before it, the Supreme Court noted that apportionment and modification of the unitary award raised the possibility of violating Code Sec. 20-109. Id. at 697, 213 S.E.2d at 752. That provision states, in pertinent part, as follows:
[I]f a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse . . . or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract.
Code Sec. 20-109.
In the case at bar, husband asserted that the emancipation of the parties' two children necessitated apportionment of the support award. However, "courts cannot read into contracts language which will add to or take away from the meaning of the words already contained therein." Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984). The agreement signed by the parties expressly provided for the circumstances under which the support payment could have terminated and provided for continued payment, clearly designated as child support, in the event the $876 monthly payment was terminated.
However, the agreement also clearly provided that the support award would not cease upon the majority of the children. Even upon the change in custody of the younger son and the execution of the second amendment to the settlement agreement, the parties continued to treat the support payment solely as alimony to wife. Rather than reducing the single payment, the parties agreed to have wife make monthly support payments to husband.
"Generally, the interpretation placed upon an agreement by the parties themselves is entitled to the greatest weight." Smith v. Smith, 3 Va. App. 510, 518, 351 S.E.2d 593, 598 (1986). The parties agreed to specific circumstances under which the support award could be reduced or stopped. They have complied with that agreement in their dealings to date.
Accordingly, we find no error by the trial court in refusing to apportion or to reduce the support payment.
Failure to Conduct Evidentiary Hearing
The trial court denied husband's motion without conducting an evidentiary hearing and interpreted the contract as a matter of law based upon the pleadings, the property settlement agreement and its amendments, and previous court orders.
"Where the agreement is unambiguous, its meaning and effect are questions of law to be determined by the court and the same rules of interpretation applicable to contracts generally apply to these agreements." Henderlite v. Henderlite, 3 Va. App. 539, 541, 351 S.E.2d 913, 913 (1987). Moreover, the decision to hold an ore tenus hearing is a matter within the sound discretion of the trial court. Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648 (1986).
We find the Agreement unambiguous on its face and, therefore, affirm the trial court's decision to deny husband's motion.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.