COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata

Argued at Alexandria, Virginia

THOMAS J. SULLIVAN, JR.

OPINION BY

v. Record No. 0027-00-4 JUDGE JAMES W. BENTON, JR.

NOVEMBER 21, 2000

MARY F. SULLIVAN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Henry E. Hudson, Judge

Theresa E. Cummins (William B. Reichhardt;

Margaret B. Craig; William B. Reichhardt &

Associates, on brief), for appellant.

J. Thomas Fromme, II (Sherman & Fromme, P.C.,

on brief), for appellee.

This appeal arises from an order enforcing a property

settlement agreement, which was affirmed, ratified, and

incorporated into an order in a prior divorce proceeding.

Thomas J. Sullivan contends the trial judge committed five

reversible errors in a contempt proceeding initiated by his

former wife, Mary F. Sullivan. For the reasons that follow, we

affirm the decision.

I.

Thomas J. Sullivan and Mary F. Sullivan were divorced by a

decree dated April 26, 1976, that reserved for future

consideration issues of "alimony, support, maintenance,

arrearage, court costs and counsel fees." On July 9, 1976, a

judge approved, ratified, and incorporated into a court order

the parties' property settlement agreement. Under the heading

"Custody, Alimony, Support and Maintenance," the agreement

contained the following provisions relevant to this appeal:

b. The Husband shall make the following

periodic payments to the Wife for the

maintenance and support of the Wife and for

the maintenance and support of the two minor

children of the parties:

The sum of [$1,300] per month, commencing on

the 9th day of July, 1976, and continuing on

the 5th day of each and every month

thereafter. As each child dies, marries,

attains the age of eighteen (18) years or

otherwise becomes emancipated, whichever

event first occurs, the foregoing sum shall

be reduced by [$300] per month. In the

event of the Wife's remarriage, death or the

Husband's death, said sum shall be reduced

in the amount of [$700] per month.

* * * * * * *

e. The Husband shall maintain at least

[$30,000] worth of unencumbered life

insurance insuring his life, naming the Wife

and the children as beneficiaries

thereunder.

In April 1999, the wife filed a motion for rule to show

cause against the husband because he had failed to furnish proof

of life insurance coverage. The husband responded, in part,

that the intent of the agreement was to provide financial

support for the minor children, that the children were then

thirty-four and thirty-five years old, respectively, and that he

could not now purchase life insurance because of his age.

Neither party testified at trial. Other evidence proved the

husband had a life insurance policy until six years after his

retirement. In 1992, he waived further coverage, terminating

the policy.

In pertinent part, the trial judge found as follows:

Paragraph 12(b) of the . . . Property

Settlement Agreement contemplates the

continuation of spousal support after the

[husband's] death. The Property Settlement

Agreement provides for life insurance under

the section entitled Custody, Alimony,

Support and Maintenance. The obvious intent

of the parties in including the policy in

the Property Settlement Agreement was to

enable the [wife] to maintain herself after

the death of her former husband.

Therefore, even under the 1976 language

of Section 20-109.1, the Court can enforce

paragraph 12(e) of the Property Settlement

Agreement requiring the [husband] to

maintain the life insurance policy. . . .

[H]ere, the parties specifically

contemplated extending the [husband's]

support obligation past his death, and

incorporated that contemplation in a valid

final decree of divorce. The court may now

enforce that obligation in a contempt

proceeding, as the court may enforce any

other valid provision of a Final Decree of

Divorce.

The judge ordered the husband, at his option, either to purchase

a life insurance policy consistent with the agreement or post a

bond in the amount of $30,000 to ensure performance of the

obligation. The judge also awarded attorney fees to the wife.

II.

The husband contends the trial judge lacked authority to

enforce the life insurance provision because that provision

conflicted with the law in force in 1976. The agreement

specifically provided that "the law of Virginia as it presently

exists" would govern. He argues that the life insurance

provision does not concern the maintenance of the wife or the

minor children and that, therefore, the trial judge lacked

jurisdiction to incorporate it in 1976 or to enforce it in this

proceeding.

In 1976, Code 20-109.1 provided as follows:

Any court may affirm, ratify and incorporate

in its decree dissolving a marriage or

decree of divorce . . . any valid agreement

between the parties, or provisions thereof,

concerning the conditions of the maintenance

of the parties, or either of them and the

care, custody and maintenance of their minor

children. Where the court affirms, ratifies

and incorporates in its decree such

agreement or provision thereof, it shall be

deemed for all purposes to be a term of the

decree, and enforceable in the same manner

as any provision of such decree.

The husband directs us to no cases in Virginia or elsewhere

that define the term "maintenance." Rather, he cites the

language in the current statute, allowing trial judges to

incorporate by reference into a decree an agreement containing

any "condition or consideration, monetary or nonmonetary," Code

20-109.1, as proof that the legislature intended to enlarge

the scope of the statute to include conditions such as

maintaining life insurance. He asserts that, by implication,

the scope of the statute in 1976 was not so broad.

We find unpersuasive the husband's reasoning. The term

"maintenance" as used in the statute is much broader than the

provision of food, clothing, and shelter; it includes a broad

range of benefits and other conveniences. To rule otherwise is

to give "an unduly narrow construction of Code 20-109.1."

Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 866 (1975).

Indeed, in Morris, the Supreme Court ruled that a husband's

obligation in a property settlement "agree[ment] to maintain a

$10,000 life insurance policy on his life for the benefit of

each child" was a provision "reasonably relate[d] to the care

and maintenance of the children." Id. at 459-60, 219 S.E.2d at

867.

Moreover, as the wife aptly notes, the life insurance

provision is contained in a section of the agreement entitled,

"Custody, Alimony, Support and Maintenance." It required the

husband to name as beneficiaries the wife and the children. The

life insurance policy was one of several benefits which the

husband specifically agreed in this section to provide them.

The parties agreed upon the insurance provision without any time

limitation, requiring only that the proceeds of the insurance

policy were to be paid upon the death of the husband. The

husband's agreement to maintain this life insurance policy was

not inconsistent with the policy and requirements of the statute

as it existed in 1976. It was an obligation "reasonably

relate[d]" to the maintenance of the wife and the children and

not unlike "similar provisions [that] have been held to be

incorporated without question into decrees in other divorce

proceedings." Id. at 460, 219 S.E.2d at 867.

The trial judge noted that provision 12(b) of the agreement

"contemplates the continuation of spousal support after the

[husband's] death." To decide this case, we need not address

the parties' intent in providing in section 12(b) of the

agreement that "[i]n the event of . . . the Husband's death" the

unitary support "shall be reduced in the amount of [$700] per

month." Regardless of the parties' intent in this provision,

the husband expressly and unconditionally agreed to maintain the

life insurance policy for the benefit of the wife and his

children. The proceeds were to be paid on his death. Thus, we

hold that the insurance provision fulfills the "conditions of

the maintenance" standard of Code 20-109.1 and is a valid,

enforceable part of the agreement.

III.

The husband also argues that Code 20-107 as it existed in

1976 precluded the trial judge's finding because it forbade

courts from decreeing the payment of support and maintenance

after the death of the payor. In pertinent part, this statute

provided that "the court shall have no authority to decree

support of children or support and maintenance of the spouse to

continue after the death of the person ordered to pay such

support and maintenance." Id.

The trial judge's order did not require the husband to pay

spousal support after his death. The trial judge merely ordered

the husband to honor his obligation to maintain the life

insurance policy during his life. In this regard, this case is

similar to Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974),

where the trial judge "approved, ratified, and confirmed [in the

final divorce decree] the [parties' property settlement]

agreement and ordered the parties to fully comply with its terms

and conditions." Id. at 652, 203 S.E.2d at 124. The Supreme

Court recognized the validity and enforceability of the

agreement, which, among its provisions, "require[d] the husband

to pay for and maintain certain life insurance policies on his

life until the youngest child becomes 23 and to name a trust for

the benefit of the children as beneficiary of these policies."

Id. at 653-54, 203 S.E.2d at 125.

A payment from an insurance company, a third party, upon

the death of the husband is not a support payment from the

estate of the husband. Furthermore, as earlier noted, this was

a valid court-approved agreement between the parties that was

consistent with the public policy favoring voluntary resolution

of disputes concerning maintenance and support. See Morris, 216

Va. at 459, 219 S.E.2d at 867. See also Cutshaw v. Cutshaw, 220

Va. 638, 641, 261 S.E.2d 52, 54 (1979) (holding that the

jurisdiction of the divorce court with regard to support and

maintenance is statutorily determined "unless otherwise provided

by agreement incorporated into the divorce decree").

Accordingly, we hold that the trial judge properly required

the husband to comply with the terms of the agreement. Nothing

in Code 20-107 as it existed in 1976 precluded the

incorporation of the agreement or the enforcement of its

provisions.

IV.

The husband next contends that the wife's motion to show

cause must fail because it referenced only the April 26, 1976

decree of divorce, which preceded the signing of the agreement

on July 8, 1976. We find no merit in this argument. The

divorce decree reserved for future determination the issues of

support and maintenance. Those issues were settled by the

parties' agreement, which was "approved, ratified, affirmed and

incorporated" as the court's decree by order dated July 9, 1976.

See Rogers v. Damron, 23 Va. App. 708, 713, 479 S.E.2d 540, 542

(1997) (holding that the trial judge had the "power to

incorporate a settlement agreement in a decree following the

entry of a decree of divorce").

Although the husband did not raise this issue in his

initial response to the wife's motion, he did mention it in a

memorandum requesting that the trial judge dismiss the motion.

At trial, both parties proceeded on the basis that the judge was

enforcing the July 9, 1976 order, which incorporated the

property settlement agreement. Moreover, the trial judge

explicitly mentioned both the July 8, 1976 agreement and the

July 9, 1976 order in his final order of December 2, 1999.

These circumstances establish that the parties and the trial

judge clearly were aware throughout the proceedings that the

July 9, 1976 order was the one at issue. Accordingly, we hold

that the trial judge did not err in refusing to dismiss the show

cause motion.

V.

The husband contends the trial judge should not have

adjudicated this case without joining the adult children as

necessary parties. He argues that the wife did not allege she

was acting in the interests of the children and that no argument

was heard concerning the allotment of the $30,000 between the

wife and the children.

Code 8.01-5 provides that no suit shall abate or be

defeated by nonjoinder of parties and that the trial judge by

order may add parties to promote the ends of justice. The

husband makes no convincing argument that the children were

necessary to this suit. The life insurance provision stated

that the wife and the children should be named the beneficiaries

of the policy. The wife was the signatory to the agreement that

she was seeking to enforce. Clearly, as a direct beneficiary of

the agreement and a party to the agreement, the wife had the

power to enforce the provisions of the agreement.

Furthermore, although the children are listed in the

agreement as beneficiaries of the life insurance, no reason

exists why the trial judge could not adjudicate this matter

without the children. The husband raises the possibility that

the children will contest the amount of money they should

receive under the insurance policy. The final order in this

case, however, merely requires the husband to comply with the

agreement which he signed or post a bond to ensure his

compliance with that agreement. It does not require the husband

or the judge to apportion money between the children and the

wife. Accordingly, we hold that the trial judge did not err in

denying the husband's request to join the children as parties.

VI.

The husband further contends the trial judge should not

have ordered him to pay attorney's fees. The husband argues

that the judge took the arguments under advisement several times

and stated that the husband had raised a number of close issues.

Furthermore, the judge acknowledged that, because of the

husband's advanced age, it would be almost impossible for him to

acquire life insurance. The husband also argues the trial judge

did not specifically find him in contempt of court. He,

therefore, contends the award of attorney's fees was erroneous.

Judges presiding over contempt proceedings in divorce suits

have the discretion to award counsel fees. Carswell v.

Masterson, 224 Va. 329, 332, 295 S.E.2d 899, 901 (1982). The

trial judge's failure to use the word "contempt" in his order

does not alter the effect of his ruling. As in Carswell, the

wife had to resort to legal proceedings to secure compliance

with a valid court order. In awarding legal fees, the trial

judge found that the husband failed to perform a legal duty.

Furthermore, simply because the trial judge ordered the husband

to comply with the life insurance provision, the alleged

impossibility of securing such a policy does not provide a basis

for establishing an abuse of discretion by the trial judge in

awarding attorney's fees. The husband's reliance on Wilson v.

Collins, 27 Va. App. 411, 499 S.E.2d 560 (1998), does not aid

his argument because in that case we held that the trial judge

had incorrectly found a party in contempt and therefore could

not order that party to pay attorney's fees.

Here, the trial judge's final ruling on the wife's motion

was appropriate. No evidence proves the judge abused his

discretion in awarding fees. Accordingly, we hold that the

trial judge did not err.

For these reasons, we affirm the trial judge's order.

Affirmed.

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