Katherine C. Campbell v Michael C. Campbell

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia
KATHERINE C. CAMPBELL
OPINION BY
v. 	Record No. 2123-99-1 	JUDGE RICHARD S. BRAY
MAY 2, 2000
MICHAEL C. CAMPBELL
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Samuel R. Brown, II (Samuel R. Brown, II,
P.C., on briefs), for appellant.
Joseph L. Lyle, Jr. (Kaufman & Canoles, P.C.,
on brief), for appellee.
Michael C. Campbell (husband) and Katherine C. Campbell
(wife) were divorced by final decree of the trial court, entered
April 23, 1998, which, inter alia, "affirmed and ratified, and
. . . incorporated" a post-separation "Stipulation Agreement"
(agreement). 	On July 14, 1999, wife petitioned the court to
"appoint a Special Commissioner," pursuant to Code
§ 20-107.3(K)(3),1 "to conduct a sale" of property specified in
1 The court shall have the continuing
authority and jurisdiction to make any
additional orders necessary to effectuate
and enforce any order entered pursuant to
this section, including the authority to:
* 	* 	* 	* 	* 	* 	*
3. 	Appoint a special commissioner to
transfer any property under subsection C

the agreement, "so . . . [husband] can satisfy" certain related
terms with the resulting proceeds. 	Husband responded with a
"Demurrer and Motion to Dismiss the . . . Petition," arguing that
the parties waived any claim to relief afforded by Code
§ 20-107.3, including the appointment of a special commissioner in
accordance with Code § 20-107.3(K)(3), by express terms of the
agreement.
The trial court conducted an ore tenus hearing, considered
the argument of counsel, and sustained husband's motion, denying
wife an opportunity to present evidence. 	Wife appeals, contending
that the trial court misinterpreted the agreement and erroneously
refused to appoint the special commissioner. 	Finding that wife
had previously agreed to waive the requested relief, we affirm the
disputed order.
I.
In accordance with express terms of the agreement, wife
waived "all right, title and interest in . . . Aerosolv," the
property in issue, "or any other products . . . in which husband
has a direct or indirect interest." 	The agreement, however,
further provided that "[t]he parties contemplate the sale of
Aerosolv . . . on or before March 1, 1997," and required husband
where a party refuses to comply with the
order of the court to transfer such
property[.]
Code § 20-107.3(K)(3).
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to apply a portion of the resulting proceeds to several specified
purposes. 	Elsewhere in the agreement, the parties covenanted
that, "[i]f Aerosolv doesn't sell, Wife shall have the right to
terminate the lease" with Katec, Inc., an asset transferred to
husband, to certain office premises deeded to wife, and "sell the
[office] property, . . . retain[ing] the proceeds . . . as her
sole separate property."
With respect to their respective rights and remedies, the
parties agreed that:
each . . . voluntarily, knowingly,
intelligently and intentionally waives the
right to have the court decree as to the
property of the parties, including by way of
illustration and not by way of limitation,
the right to have the court execute the
remedy provided by Code of Virginia, Section
20-107.3 (Virginia's Equitable Distribution
law) . . . .2
Both, however, reserved the right to pursue enforcement of the
agreement "in any court of competent jurisdiction by petition
. . . or other procedure compatible with the rules of such
tribunal." 	Once incorporated "into any decree which may be
entered in any action between the parties," the terms of the
agreement were "to be enforceable in the same manner as any
provision of such decree pursuant to Code § 20-109.1 . . .,
2 The preamble to the agreement recited, "before arriving at
their bargain, the parties . . . considered Virginia's laws
relative to property, equitable distribution . . . and those
remedies available to them in the absence of the specific
provisions hereof to the contrary."
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including, without limitation . . . the use of the contempt
powers of the court, [and] . . . confinement in jail or the
imposition of a fine . . ., notwithstanding the remedies
available under the general law . . . in the absence of
contract." 	(Emphasis added.)
II.
It is well established that "marital property settlements
entered into by competent parties upon valid consideration for
lawful purposes are favored in the law." 	Cooley v. Cooley, 220
Va. 749, 752, 263 S.E.2d 49, 52 (1980). 	Such "agreements are
contracts subject to the same rules of formation, validity, and
interpretation as other contracts." 	Bergman v. Bergman, 25 Va.
App. 204, 211, 487 S.E.2d 264, 267 (1997) (citing Smith v.
Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986)).
When the terms of a disputed provision are
clear and definite, it is axiomatic that
they are to be applied according to their
ordinary meaning. 	Where there is no
ambiguity in the terms of a contract, we
must construe it as written, and . . . not
. . . search for the meaning . . . beyond
the pertinent instrument itself.
Smith, 3 Va. App. at 514, 351 S.E.2d at 595-96 (citations
omitted).
As acknowledged by the parties in the subject agreement,
Code § 20-109.1 authorizes the court to "affirm, ratify and
incorporate by reference in its decree dissolving a marriage
. . . any valid agreement between the parties, or provisions
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thereof," which "agreement or provision . . . 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." 	Code
§ 20-109(C), formerly Code § 20-109, provides that, within
limitations not pertinent to the instant appeal, a court may not
depart from the terms and conditions of a "stipulation or
contract" addressing "support and maintenance for the spouse,
suit money, or counsel fee or establishing or imposing any other
condition or consideration, monetary or nonmonetary."
Code §§ 20-109 and –109.1 are specifically referenced and
sanctioned by Code § 20-107.3(I). 	Thus,
it is apparent that the legislature intended
to impose the same restrictions on a court
in making an equitable distribution award as
. . . in making awards of support and
maintenance. 	Specifically, to the extent
that the parties have already stipulated to
a particular disposition of their property,
the court may not decree
inconsistent relief in equitable distribution pursuant to Code
§ 20-107.3. 	Parra v. Parra, 1 Va. App. 118, 128, 336 S.E.2d
157, 162 (1985). 	A contrary rule would invite divorce litigants
to abandon agreements, favored by "public policy," in pursuit of
a "better result from the court." 	Id. at 129, 336 S.E.2d at
163.
Here, husband and wife clearly and unequivocally elected to
rely upon the agreement to identify and establish their
respective interests relative to the separate and marital
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estates, child custody, support, and a myriad of like issues
incident to the marriage. 	To the exclusion of relief otherwise
available, both expressly looked to the agreement, either in
contract or as a provision of the decree, to safeguard their
respective rights. 	As a result, the provisions of Code
§ 20-107.3 are not available to remedy wife's claims arising from
the agreement.
Contrary to wife's argument on appeal, adherence to the
clear language of the agreement does not "depriv[e] [her] and
the . . . child of their rights under the agreement." 	Once
affirmed, ratified and incorporated into the decree of divorce
pursuant to Code § 20-109.1, the agreement became, "for all
purposes . . . a term of the decree, . . . enforceable in the
same manner as any provision of such decree." 	Code § 20-109.1.
Hence, both parties are free to access the equitable powers of
the court to enforce the decree, including the terms of the
agreement. 	See, e.g., McLoughlin v. McLoughlin, 211 Va. 365,
368, 177 S.E.2d 781, 783 (1970) (court may enforce agreement
incorporated into decree through "contempt power"); Mayers v.
Mayers, 15 Va. App. 587, 589-90, 425 S.E.2d 808, 809 (1993)
(court may order sale of property to enforce divorce decree
incorporating agreement); Owney v. Owney, 8 Va. App. 255, 259,
379 S.E.2d 745, 748 (1989) (incorporated agreement enforceable
through "contempt power" or otherwise as "binding . . . the
parties"); Fry v. Schwarting, 4 Va. App. 173, 178, 355 S.E.2d
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342, 345 (1987) (incorporated agreement enjoys "full force and
effect of a court's decree"); Parra, 1 Va. App. at 129, 336
S.E.2d at 163 (incorporated agreement does not diminish
"contractual dignity").
Accordingly, we affirm the order of the trial court,
expressly preserving the right of both parties to access the
trial court for enforcement of the agreement through the decree,
with such relief, if any, as the court may deem appropriate, or
to pursue any contractual remedies otherwise available.3
Affirmed.
3 We do not construe the disputed order, dismissing the
instant petition "with prejudice," as either barring wife from
hereafter seeking enforcement of the decree in the trial court
or limiting such relief, if any, as the court may then find
appropriate after consideration of the issue on the merits.
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