                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia


LOUIS E. METCALF, JR.
                                            MEMORANDUM OPINION * BY
v.      Record No. 1208-01-4                JUDGE NELSON T. OVERTON
                                                 APRIL 2, 2002
CLAIRE K. METCALF


                FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                        Jane Marum Roush, Judge

             Peter M. Fitzner (Matthews, Snider, Norton &
             Fitzner, on brief), for appellant.

             Stephen R. Pickard (Law Offices of Stephen R.
             Pickard, on brief), for appellee.


        Louis E. Metcalf, Jr. (husband) appeals a decision of the

trial court finding him in contempt of court and requiring him to

maintain Claire K. Metcalf (wife) as the primary beneficiary of

"at least" $100,000 of his life insurance benefits.     We conclude

that the trial court abused its discretion in finding husband in

contempt and dismiss the case.

                               BACKGROUND

        Husband and wife were divorced by decree entered on July 27,

1981.    The final decree affirmed, ratified and incorporated the

parties' Property Settlement Agreement (PSA).     Paragraph 4(b) of

the PSA provides:

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
             Life Insurance. Husband shall continue to
             maintain Wife as the primary beneficiary of
             $100,000.00 of his existing life insurance
             for such time as husband is responsible to
             pay Wife the alimony or spousal support
             pursuant to the terms of paragraph "1,"
             above.

(Emphasis added.)

     Paragraph 1 of the PSA provides that husband shall pay wife

spousal support until the death of either party or until wife

remarries.    Husband continues to pay wife spousal support

pursuant to Paragraph 1 of the PSA.

     At the time the parties entered into the PSA, husband had

three life insurance policies.    These included individual life

insurance policies, respectively, of $10,000 and $20,000 in

original death benefits and a group term policy through his

employer with a death benefit of $75,000.    This later policy

increased in value to over $100,000 as husband's compensation

increased.    When husband retired in 1990, the employer-provided

policy ceased; however, he received another life insurance

policy with a death benefit of $7,500 from his employer as part

of his retirement benefits.    Husband designated his present

spouse as the beneficiary of that policy.

     In April 2001, the trial court issued a Rule to Show Cause,

ordering husband to show cause why he was not in violation of

Paragraph 4(b) of the PSA.    At the time of the April 5, 2001

hearing, husband had maintained wife as the primary beneficiary

of only the $20,000 life insurance policy that he owned at the

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time the parties signed the PSA which now carried a death

benefit of about $34,800.   Husband had allowed the $10,000

policy to lapse while he was still employed since the employer

group term policy death benefit had increased to over $100,000.

       The trial court initially ruled that "the use of the word

existing" in Paragraph 4(b) is ambiguous.   Husband argued the

meaning of "existing" was clear and limited to the policies

existing when the PSA was signed.   As there was no ambiguity,

husband argued the court had no basis to take parol evidence to

define the meaning of § 4(b) of the PSA.    The trial court

disagreed and heard parol evidence from the parties concerning

their intent at the time they entered into the PSA.

       After hearing the parol evidence, the trial court stated

that the term "existing maybe is ambiguous for me," but not for

the parties.   The trial court concluded, based on the parol

evidence, that the intent of the parties in 1980 when they

entered into the PSA was that husband did not have to obtain

additional life insurance at that time, but "he had a continuing

obligation to maintain at least $100,000" worth of insurance

benefits for wife for as long as the spousal support remains

due.   However, the court found that husband had failed to

fulfill this obligation.    Therefore, the trial court found

husband in contempt of court and ordered that husband name wife

as the beneficiary of "at least" $100,000 worth of life

insurance.   The trial court also awarded wife attorney's fees.

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                                ANALYSIS

     Husband's initial argument in the trial court was that the

agreement was not ambiguous and that "existing life insurance"

were those policies "existing" when the agreement was signed.    If

husband is correct, the trial court's finding of contempt would be

plainly wrong as no contempt would lie at this time under that

reading.   However, it is unnecessary for us to determine whether

or not the agreement is ambiguous as found by the trial court for

the disposition of this appeal.

     Assuming, but specifically not deciding, the agreement is

ambiguous, the subsequent finding of contempt and award of

attorney's fees was erroneous.

     "As a general rule, 'before a person may be held in contempt

for violating a court order, the order must be in definite terms

as to the duties thereby imposed upon him and the command must be

expressed rather than implied.'"     Winn v. Winn, 218 Va. 8, 10, 235

S.E.2d 307, 309 (1977) (citation omitted).    "This is also the rule

followed in Virginia."    Id.   "'The process for contempt lies for

disobedience of what is decreed, not for what may be decreed.'"

Id. (citation omitted).

     While it may be that, when the parties entered into the PSA,

they intended that husband would maintain wife as the beneficiary

of $100,000 worth of his life insurance policies for the

duration of his spousal support obligation, even if that

required husband to acquire additional policies after the

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parties signed the PSA, this was not expressed in definite terms

in the agreement as incorporated into the divorce decree.     "If the

duty existed at all, it arose only by implication."     Id.   Because

husband "did not violate a clearly defined duty imposed upon him

by the [PSA] and the decree, his actions did not constitute

contempt."   Id. at 10-11, 235 S.E.2d at 309.    Accordingly, we

reverse the trial court's finding of contempt and its award of

attorney's fees to wife.   We remand this case to the trial court

for the entry of such order or orders as may appear appropriate to

the trial court to ensure that any counsel fees paid by husband

under the order appealed from are returned to him.     We dismiss

this case from our docket.

                                                Reversed and remanded.




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