Present: Judges Willis, Frank and Clements
BEVIN R. ALEXANDER, JR.
MEMORANDUM OPINION*
v. Record No. 1299-01-3 PER CURIAM
NOVEMBER 20, 2001
PAMELA CRAIG ALEXANDER
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
A. Dow Owens, Judge Designate
(H. David Natkin; H. David Natkin, P.C., on
brief), for appellant.
(David W. Shreve, on brief), for appellee.
Bevin Alexander (appellant) contends the trial court erred
in: (1) failing to reduce his child support payments; (2)
awarding child support without considering the child support
guidelines; (3) awarding child support, medical reimbursement and
college expenses without considering his ability to pay; (4)
requiring him to pay out-of-state college expenses; (5) entering a
judgment against him for medical expenses; (6) refusing to modify
the original separation agreement to reflect his change in
circumstances; and (7) awarding appellee attorney's fees. Upon
reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the trial court. See Rule 5A:27.
BACKGROUND
The parties married on August 6, 1977. Two children were
born during their marriage: a daughter, born on May 30, 1982
and a son, born on December 16, 1984. The parties separated on
April 15, 1994, and "voluntarily entered into a separation
agreement, dated February 6, 1995." On May 23, 1995, the
parties executed an addendum amending, in part, the February 6
separation agreement. On June 27, 1995, the trial court entered
a divorce decree in which it "affirmed, ratified, approved, and
incorporated" the separation agreement and the addendum.
The addendum provides, in pertinent part:
The Husband agrees to pay support for
the minor children and the Wife in the
amount of $1,750.00 per month, said amount
being due in two equal monthly installments
on the 1st and 15th of each and every month.
The parties agree that, at the Wife's
option, the entire amount of support shall
be treated for tax purposes as child
support, the Wife reserving the right to
reallocate the amount as to spousal support
and child support as the children become
adults. The parties agree that this amount
is modifiable upon a showing of change of
circumstances by either party, but the
amount of support under any circumstances
shall not ever be lower than $1,200.00 a
month even after both children reach the age
of eighteen (18) years. The parties agree
that the maximum amount the Husband will pay
as support to the Wife or combined support
to the Wife and children will be $2,700.00
unless his gross income exceeds $100,000.00.
The parties agree that in calculating the
support amount, they will not use any
percentage of support as the basis for any
future calculation and that, every year on
the anniversary date of the original
agreement, they will review the amount of
support to be paid by the Husband to the
Wife, exchanging tax returns two (2) weeks
prior to this reassessment.
* * * * * * *
Support, as to the Wife, will continue
until her death or remarriage. In the event
of her remarriage, child support will be
recalculated, but in no event will it be
lower than $1,200.00 per month or higher
than $2,700.00, unless the Husband's gross
income exceeds $100,000.00 a year.
On October 2, 2000, wife petitioned the trial court to
reinstate the case on the docket and issue a rule to show cause
why husband should not be held in contempt for violating the
terms of the decree. On October 4, 2000, the trial court
reinstated the case on the docket and ordered husband to appear
on October 16, 2000, to show cause why he should not be held in
contempt for violating the decree.
On October 11, 2000, the trial court requested "a
designation pursuant to an order of disqualification of all of
the Judges" in the circuit.
On October 27, 2000, husband filed motions requesting the
trial court to determine his spousal support obligation and to
reduce his child support obligation.
On November 7, 2000, the Supreme Court designated Judge
Owens to preside over the case.
On December 5, 2000, the trial court conducted a hearing at
which the parties presented evidence. At the conclusion of the
hearing, the trial court ruled as follows:
I can see no evidence of any fraud or
misleading or threats. It's obvious that
[husband's] income has dropped considerably,
but when his income was close to what it is
now he had agreed to pay twenty-seven
hundred dollars. I think it's quite
reasonable to continue to require the twelve
hundred-dollar a month payment and he owes
an additional four hundred dollars to bring
it current.
The trial court also ruled that wife's $702.02 dental bill
"is due" and payable by husband within six months. It took the
medical bills under advisement. Regarding college tuition, the
trial court explained,
[t]here's nothing in the separation
agreement that says she can't go outside the
state and that he will only pay a portion of
her costs if she does go to an in-state
college. There's nothing unreasonable about
her selecting the college of her choice that
she wanted. I will require him to pay his
pro rata share. One-third of the bonds that
they hold now will be used for each of the
succeeding years after this year.
The trial court found wife's attorney's fees reasonable and
payable by husband, and allowed husband six months to pay them.
The trial court also ordered wife to "provide, through the
school, a letter from the principal" regarding the parties'
son's performance in school. The trial court directed wife's
attorney to draft an order reflecting the court's ruling.
On January 5, 2001, husband filed objections to the
proposed draft decree and a motion for reconsideration.
On April 9, 2001, the trial court conducted a hearing on
father's objections and motion for reconsideration.
On May 4, 2001, the trial court and parties signed a
decree. On May 17, 2001, the trial court entered a final order.
ISSUE I: CHANGED CIRCUMSTANCES
Husband contends the trial court erred in refusing to
reduce his spousal support based on changed circumstances.
Pursuant to Code 20-109, a trial court may modify the
existing terms of spousal support and maintenance upon the
petition of either party. However,
where the parties contract or stipulate to
the amount of spousal support and that
agreement is filed without objection prior
to the entry of the final divorce decree,
"no decree or order directing the payment of
support and maintenance for the spouse . . .
shall be entered except in accordance with
that stipulation or contract."
Pendleton v. Pendleton, 22 Va. App. 503, 506, 471 S.E.2d 783,
784 (1996) (citations omitted); see Code 20-109(C). Code
20-109(C) "inhibits the power of the court to award or
consider modification of the decree to the extent that spousal
support and maintenance are provided for in the incorporated
agreement of the parties." White v. White, 257 Va. 139, 144,
509 S.E.2d 323, 325 (1999) (citations omitted). But cf.
Blackburn v. Michael, 30 Va. App. 95, 99, 515 S.E.2d 780, 782
(1999) (although parties entered into agreement that was
incorporated into decree, the agreement setting forth amount of
spousal support expressly provided modification "by Court of
competent jurisdiction").
Despite husband's attempt to attack it, the addendum to the
property settlement agreement was clear, unambiguous and
reflected the parties' intention that although modifiable, "the
amount of support under any circumstances shall not ever be
lower than $1,200.00 a month." (Emphasis added.)
In 1995, the year the parties executed the addendum,
husband's 1995 W-2 form reflected income of $62,500. His 1996
W-2 form reflected income of $49,713. At the December 2000
hearing, husband estimated his income for the year would be
between $50,000 and $55,000. That figure is close to the amount
appellant earned when he executed the addendum. Moreover, in
1996, he made less than what he anticipated his 2000 income
would be, yet managed to comply with the terms of the agreement.
Although the trial court acknowledged husband's income had
diminished, "'"[c]ourts cannot relieve one of the consequences
of a contract merely because it was unwise . . . [or] rewrite a
contract simply because the contract may appear to reach an
unfair result."'" Pelfrey v. Pelfrey, 25 Va. App. 239, 245, 487
S.E.2d 281, 284 (1997) (citations omitted); see also Kaufman v.
Kaufman, 7 Va. App. 488, 501, 375 S.E.2d 374, 381 (1988) ("A
court is not at liberty to rewrite a contract simply because the
contract may appear to reach an unfair result.").
Based on these circumstances, the trial court did not err
in upholding the contractual support obligation.
ISSUE II: CHILD SUPPORT
Husband contends the trial court made no findings pursuant
to Code 20-108.2 to justify its award of child support.
The parties agreed to a unitary amount of support to cover
child and spousal support. The trial court awarded the minimum
amount of combined support agreed upon, $1,200 per month. That
amount was above the statutory guidelines figure, and it created
a contractual obligation when the parties executed the addendum.
Accordingly, the trial court did not err in refusing to apply
the child support guidelines.
ISSUE III: CHILD SUPPORT, MEDICAL REIMBURSEMENT
AND COLLEGE EXPENSES
Husband contends the trial court failed to consider his
financial ability to pay. He argues that the trial court failed
to make the required guidelines analysis and it made no
calculations to determine husband's ability to pay.
As explained above, the unitary support amount was a
contractual obligation that did not contemplate using the
guidelines. Therefore, the trial court did not err in refusing
to apply the statutory guidelines analysis.
Husband correctly points out "that the record is devoid of
any calculation by the trial court, in writing or otherwise,
regarding [his] financial situation or his ability to pay
support of any kind." However, the record fails to show that
husband prepared and presented a financial income and expense
statement for the trial court to review in light of his argument
that he was unable to pay. See Ferguson v. Commonwealth, 10 Va.
App. 189, 194, 390 S.E.2d 782, 785, aff'd in part, rev'd in
part, 240 Va. ix, 396 S.E.2d 675 (1990) (holding that appellant
has primary responsibility of ensuring that complete record is
furnished to an appellate court so that errors assigned may be
properly decided).
ISSUE IV: COLLEGE EXPENSES
Husband contends the trial court erred in requiring him to
pay a pro rata share of his daughter's college tuition at an
out-of-state school.
Paragraph 6 of the initial February 6, 1995 Property
Settlement Agreement, provided, in pertinent part:
The parties shall contribute, on a pro rata
basis, according to their financial ability,
toward the tuition, room and board,
clothing, books and required fees for up to
a four (4) year program of undergraduate
college education or vocational training at
an institution subject to the parties'
reasonable right of approval, for both
children, until either child reaches the age
of twenty-four (24).
At the December 5, 2000 hearing, husband argued that he
"actively and vigorously disapproved" of his daughter's choice
to attend an out-of-state school. Husband contended she was
accepted to Radford, a state-supported school, but she chose not
to attend; moreover, she refused to apply to other
state-supported schools, "particularly Virginia Commonwealth."
He asserted that both of those schools were appropriate for her
to attend and would have been financially more feasible.
Wife testified that her daughter is currently attending
Appalachian State University, but she "particularly wanted to go
to Guilford College." The cost for Guilford was $22,386,
whereas the cost for Appalachian State was $12,937.50. Wife
explained that she agreed to an installment contract with and
made payments to Appalachian State without any contributions
from husband.
Finding nothing in the "separation agreement that says [the
daughter] can't go outside the state and that he will only pay a
portion of her costs if she does," and finding "nothing
unreasonable about her selecting the college of her choice," the
trial court required husband to pay his pro rata share.
Based on the terms of the agreement and the facts adduced
at the hearing, the trial court did not err in so holding.
Moreover, we find no reversible error in the trial court
directing the parties to calculate their pro rata shares
according to the most recent incomes reported on their
respective W-2 forms.
ISSUE V: PAYMENTS FOR MEDICAL EXPENSES
Wife presented evidence that, from October 1995 until
September 30, 2000, she paid dental premiums totaling $1,702.20
for the children. From 1995 until 2000, wife paid an additional
$4,534 for various medical bills. Wife was never reimbursed by
husband for those expenses.
Paragraph 8 of the February 1995 agreement provides that
husband would "maintain health insurance" for the children.
That paragraph further provided, "Any medical, dental or
orthodontic expenses not covered by such insurance in excess of
a yearly amount of $300.00 shall be paid by the Husband."
Under the contract incorporated into the decree, husband
was obligated to pay the medical expenses as a unitary support
payment to wife. The fact that wife waited several years to ask
for the money did not lessen husband's obligation to pay it.
"Husband may not invoke the principles of estoppel or
laches to bar rights granted to wife by the lawful decree
. . . ." Martin v. Bales, 7 Va. App. 141, 147, 371 S.E.2d 823,
826 (1988). See also Johnson v. Johnson, 1 Va. App. 330, 332,
338 S.E.2d 353, 354 (1986) (stating same).
Husband also contends the trial court improperly admitted
and relied on inadmissible hearsay regarding husband's
obligation to pay for his son's continued prescriptions for
Ritalin. At the December 5, 2000 hearing, husband argued that
he never had any input into whether his son should continue to
take Ritalin. He explained, "I understand why there is an
argument for using Ritalin to control him in school," however,
husband contended he always objected to use of the drug.
Wife testified that the parties' son had been diagnosed as
having an "attention deficit hyperactivity disorder" for which
Dr. Milanovich has been prescribing Ritalin since fourth grade.
At the time of the hearing, the son was in tenth grade.
According to wife, "h]e has not had behavior problems since he
has been" taking Ritalin, and it has "helped him tremendously."
According to wife, Ritalin has enabled the son to better "focus
his attention" and "complete tasks. . . . without being
distracted." Wife averred that the son only takes Ritalin
"during school hours" and that she has discontinued providing
Ritalin to her son at night and during the weekends. Although
she is able to deal with the son's louder and busier behavior on
the weekends when he doesn't take Ritalin, the school is unable
to deal effectively with the son if he does not take it.
According to wife, each time the son forgot to take his Ritalin,
the school contacted her regarding poor behavior.
Before ruling, the trial court indicated it would take the
past medical bills for Ritalin under advisement. It directed
wife "to provide, through the school, a letter from the
principal saying anything that he has observed about [the son]."
On January 25, 2001, wife filed with the clerk's office a letter
from the son's principal, Susan Morrison. Morrison advised that
the son's "academic progress indicates that he appears to be
very successful while on the medication." "As a professional,"
Morrison was "concerned about taking him off medication." On
March 9, 2001, wife filed a letter from Dr. Milanovich detailing
the son's history in school before and after taking Ritalin for
ADHD symptoms. Dr. Milanovich noted that the son "continues to
be successful academically" taking a single dose of Ritalin in
the morning before school.
At the April 9, 2001 hearing, husband sought to strike
Dr. Milanovich's letter because he received it too late and
because it was inadmissible hearsay. The trial court refused to
strike the letter but allowed husband's attorney's request for
an "opportunity to address the issues raised in those letters."
Husband declined the trial court's invitation to call and
cross-examine Dr. Milanovich. As to the Ritalin, the May 4,
2001 decree included the following:
The additional sum of $299.00, which
represents the cost of Ritalin for the
parties' minor child, Craig Alexander, is
taken under advisement for a period of
thirty (30) days from April 9, 2001 for the
Defendant to submit such further evidence
thereon as he may be advised. . . . If the
defendant submits additional evidence and
requests a hearing before May 9, 2001
judgment will not be entered on the amount
of $299.00 representing the cost of Ritalin.
However, if no motion is made or further
evidence submitted judgment in the amount of
$299.00 will be entered as of May 10, 2001.
By order dated May 17, 2001, the trial court noted that the
parties no longer "wished to pursue the motions, which they have
previously filed." It then ruled that the May 4, 2001 decree
was final.
Appellant had an opportunity to call and cross-examine
Dr. Milanovich, and he had the opportunity to submit evidence to
rebut the letters. He chose not to do so. Accordingly, the
trial court did not err in admitting and considering the letters
from the principal and the doctor.
ISSUE VI: REFUSAL TO MODIFY THE ORIGINAL
SEPARATION AGREEMENT
Husband contends the trial court erred in refusing to allow
him to present evidence attacking the contract on the basis that
the terms were ambiguous and the alleged lack of intent to pay
spousal support until wife remarried or dies.
The trial court found no evidence of fraud, duress or
coercion in the execution of the agreement. Moreover, as
explained in I., supra, the agreement between the parties that
was incorporated into the decree was unambiguous and clearly
articulated the parties' intentions. "The general rule in
Virginia is that parol evidence of prior stipulations or oral
agreements is inadmissible to vary, contradict, or explain the
terms of a complete, unambiguous, unconditional written
contract." Price v. Taylor, 251 Va. 82, 86-87, 466 S.E.2d 87,
89 (1996). Accordingly, the trial court did not err in refusing
to hear parol evidence intended to modify the agreement.
ISSUE VII: ATTORNEY'S FEES
During the December 5, 2000 hearing, wife introduced,
without objection, an itemized statement detailing her
attorney's fees. The trial court found attorney's fees of
$2,981.50 "reasonable" and awarded that amount to wife.
The trial court has broad discretion so long as the
attorney's fees award is reasonable under the circumstances.
Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558
(1987); McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d
159, 162 (1985). Based on the circumstances and equities of
this case, we cannot say the trial court abused its discretion
in making this award. Accordingly, the trial court did not err.
For the foregoing reasons, the decision of the trial court
is summarily affirmed.
Affirmed.
* Pursuant to Code 17.1-413, this opinion is not
designated for publication.
This language was taken verbatim from the June 27, 1995
divorce decree, signed by the parties without objection.