                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia


ROSS KINNISON HALL
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2021-04-4                                   JUDGE JAMES W. BENTON, JR.
                                                                  OCTOBER 11, 2005
MARLENE SUE HALL


                 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                                Richard B. Potter, Judge

                 David L. Ginsberg (Cooper Ginsberg Gray, PLLC, on briefs), for
                 appellant.

                 Donna M. McIntosh (Smith, Hudson & Carluzzo, P.C., on brief), for
                 appellee.


       In this divorce proceeding, the trial judge sustained the wife’s objections to the husband’s

interrogatories about adultery and later struck the husband’s amended answer, which alleged that

their prenuptial agreement barred spousal support for adultery and that the wife had committed

adultery. For the reasons that follow, we reverse those rulings and remand for a new trial.

                                                  I.

       Marlene Sue Hall filed a bill of complaint for divorce, alleging that her husband, Ross

Kinnison Hall, deserted the marriage. She requested spousal support, attached to the pleading a

postnuptial agreement that addressed spousal support, and requested the judge to incorporate the

agreement into an order. In pertinent part, the agreement provides that the husband shall pay the

wife spousal support in the amount of $2,500 per month for a specified number of months if the

husband deserts the marriage and for another period if he and wife mutually agree to separate.

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The agreement also provides that the wife relinquishes her right to spousal support if the husband

presents proof of her adultery. The agreement defines “proof of adultery” as “unaltered

photographic or video representation of adultery; or a finding of guilty of adultery in a court of

law.”

        The husband filed an answer, which referenced the agreement but did not assert a specific

defense to the wife’s claim of spousal support. Later, the husband served interrogatories seeking

information about the wife’s adulterous conduct. The wife objected to the interrogatories,

contending they were irrelevant and, therefore, exceeded the scope of permissible discovery

under Rule 4:1(b)(1). The trial judge sustained the objection to the interrogatories and granted

the husband leave to file an amended answer.

        The husband filed an amended answer, alleging that the agreement provides that if he

“present[s] proof [the wife] has committed adultery, she agrees to relinquish her rights under this

agreement.” He also alleged the details of a specific instance of the wife’s adultery. His answer

further alleged that “[u]pon information and belief, [wife] has committed adultery at other times

and places.”

        On the wife’s motion, the trial judge held a hearing, considered the argument of both

attorneys, and struck the husband’s amended answer. The trial judge ruled that the husband’s

answer did not constitute “sufficient pleadings for a grounds of divorce on adultery to address

the issue even for support.” The trial judge reasoned as follows:

               [T]he way that [Code § 20-107.1] is framed, in order to establish
               adultery you have to establish adultery as a grounds of divorce. . . .
               The court can give a divorce on one-year separation, but . . . in
               order to negate the argument for spousal support, you must prove
               that they are guilty not of a simple act of adultery, but of adultery
               as a grounds of divorce, and that is a legal term.

                   And in order to prove adultery as a grounds of divorce, this
               court would have to make a finding that there is sufficient evidence
               to find adultery as a grounds of divorce, and without a pleading
                                                -2-
               requesting a . . . divorce based on adultery, the parties are never
               brought to issue.

The trial judge granted the husband leave to file a cross-bill of complaint, but the husband did

not do so.

       At the conclusion of the trial, the judge awarded a divorce on the ground the parties had

lived apart for one year and ordered the husband to pay the wife spousal support in the amount

specified in the parties’ agreement. This appeal followed.

                                                 II.

       We agree with the husband’s contention that the trial judge erred in sustaining the wife’s

objection to his interrogatories.

       Rule 4:8(e) provides that any party may serve upon another party interrogatories that

“relate to any matters which can be inquired into under Rule 4:1(b).” In turn, Rule 4:1(b)(1)

defines the general scope of discovery as follows:

               Parties may obtain discovery regarding any matter, not privileged,
               which is relevant to the subject matter involved in the pending
               action, whether it relates to the claim or defense of the party
               seeking discovery or to the claim or defense of any other party. . . .
               It is not ground for objection that the information sought will be
               inadmissible at the trial if the information sought appears
               reasonably calculated to lead to the discovery of admissible
               evidence.

       As the plain language of Rule 4:1(b)(1) indicates, a party’s request for discovery will not

be denied so long as it is “relevant to the subject matter involved in the pending action.” Id.; see

Lyle, Siegel, Croshaw & Beale, P.C. v. Tidewater Capital Corp., 249 Va. 426, 438-39, 457

S.E.2d 28, 36 (1995). The rule thus establishes a “broad scope” for discovery requests, defining

the relevancy of such requests by relation to the subject matter of the action, “regardless of

whether [they] relate[] to the claim or defense of the party seeking discovery or to the claim or




                                                -3-
defense of any other party.” 1 Friend’s Virginia Pleading and Practice § 11-5 (2004) (emphasis

added).

          Prior to the year 2000, Federal Rule of Civil Procedure 26(b)(1) provided the same

“broad scope” of discovery allowed by Virginia’s Rule 4:1(b)(1). Indeed, the pertinent language

of Virginia’s rule exactly mirrored the federal rule.1 The Supreme Court of Virginia has not yet

followed the federal example by amending this discovery rule. Rule 4:1(b)(1) thus retains the

broader scope of discovery present under the older, pre-2000 federal rule. Therefore, federal

cases interpreting the rule as it existed before 2000 provide guidance in interpreting Virginia’s

current rule. See Rakes v. Fulcher, 210 Va. 542, 545-46, 172 S.E.2d 751, 755 (1970) (reviewing

federal decisions interpreting another rule “substantially the same” as the Virginia counterpart).

          The United States Supreme Court case of Oppenheimer Fund, Inc. v. Sanders, 437 U.S.

340 (1978), addressed the scope of the rule prior to the amendment, the issue raised in the instant

appeal. In discussing the concept of relevancy under Fed. R. Civ. Pro. 26(b)(1), the Supreme

Court held:

                    The key phrase in [the] definition [of the scope of discovery]—
                 “relevant to the subject matter involved in the pending action”—

          1
         On December 1, 2000, Federal Rule of Civil Procedure 26(b)(1) was amended. The
amendment to the rule narrowed the permissible scope of “party-controlled discovery to matters
‘relevant to the claim or defense of any party.’” 6 Moore’s Federal Practice-Civil § 26.41(2)(a)
(2005). As amended, the current Federal Rule of Civil Procedure 26(b)(1) provides, in part:

                 Parties may obtain discovery regarding any matter, not privileged,
                 that is relevant to the claim or defense of any party, including the
                 existence, description, nature, custody, condition, and location of
                 any books, documents, or other tangible things and the identity and
                 location of persons having knowledge of any discoverable matter.
                 For good cause, the court may order discovery of any matter
                 relevant to the subject matter involved in the action.

(Emphasis added). Thus, under the current federal rule, a party seeking discovery of a matter not
contained in the pleadings but generally germane to the subject matter of the suit must first
obtain approval from the court by showing good cause. See 6 Moore, supra, § 26.41(2)(a).

                                                 -4-
               has been construed broadly to encompass any matter that bears on,
               or that reasonably could lead to other matter that could bear on,
               any issue that is or may be in the case. See Hickman v. Taylor,
               329 U.S. 495, 501 (1947). Consistently with the notice-pleading
               system established by the Rules, discovery is not limited to issues
               raised by the pleadings, for discovery itself is designed to help
               define and clarify the issues. Id., at 500-501. Nor is discovery
               limited to the merits of a case, for a variety of fact-oriented issues
               may arise during litigation that are not related to the merits.

Oppenheimer Fund, 437 U.S. at 351 (emphasis added) (footnotes omitted); see also 23 Am. Jur.

2d Depositions and Discovery § 23 (2004).

       Although the wife’s bill of complaint did not raise the issue of adultery in this case, the

agreement she attached to the bill of complaint contains a provision barring spousal support for

adultery. Thus, the wife’s adultery, if true, would be “relevant to the subject matter of the suit”

because the wife requested “spousal support . . . in accordance with the Agreement.” Under Rule

4:1(b)(1), the husband was therefore entitled to propound the interrogatories in an effort to define

and clarify the issues and investigate the viability of the agreement’s adultery defense to his

spousal support obligation. See 6 Moore’s Federal Practice-Civil § 6(b) (2005) (“A request for

discovery [before the 2000 amendment to Fed. R. Civ. Pro. 26(b)(1)] was considered relevant if

there was any possibility that the information sought may be relevant to the subject matter of the

action.” (emphasis added)). In other words, if the “material . . . requested . . . is not specifically

encompassed by issues raised in the pleadings, but . . . is relevant to the subject matter of the

action, such matter is discoverable and may later be included in the pleadings, if later required

for admissibility at trial, by amendments thereto.” Carlson Cos. v. Sperry & Hutchinson Co.,

374 F. Supp. 1080, 1103 (D. Minn. 1973).

       In light of the foregoing, we hold that the trial judge erred as a matter of law in

concluding that the husband’s interrogatories were irrelevant because they did not relate to any

claim or defense. As such, the judge abused the discretion normally afforded trial judges in

                                                 -5-
manners involving the granting or denying of discovery. See O’Brian v. Langley Sch., 256 Va.

547, 552, 507 S.E.2d 363, 366 (1998); see also Shooltz v. Shooltz, 27 Va. App. 264, 271, 498

S.E.2d 437, 441 (1998) (holding that “‘a trial court by definition abuses its discretion when it

makes an error of law’”).

                                                III.

       In the same order sustaining the wife’s objections to the interrogatories, the trial judge

granted leave to the husband to file an amended answer. We agree with the husband that the trial

judge later erred in striking the amended answer.2

       The record establishes that wife’s bill of complaint for divorce requested “spousal

support for herself, in accordance with the [agreement].” She attached to the bill of complaint a

copy of the agreement, which provided in pertinent part the following:

               5. DISSOLUTION OF MARRIAGE . . . If [the wife] and [the
               husband] should mutually agree to separate and dissolve their
               marriage, then [the husband] agrees to pay support of no less than
               $2,500 per month for a period of 36 months commencing upon the
               date of separation, and for an additional 12 months upon each five
               year wedding anniversary. [The wife] and [the husband] agree that
               certain events, such as adultery or desertion, will result in special
               provisions, as follows:

                   (1) Upon [the wife] presenting proof that [the husband] has
               committed adultery, then [the husband] agrees to provide to [the
               wife] support of no less than $2,500 per month, for a period equal
               to the number of months of their marriage. For the purposes of this
               agreement, proof of adultery is defined as; unaltered photographic
               or video representation of adultery; or, a finding of guilty of
               adultery in a court of law.




       2
          We reject the wife’s contention that the husband failed to preserve this issue for appeal.
The husband noted his objections at the hearing, and he filed detailed objections on the final
decree of divorce. This is sufficient to satisfy Rule 5A:18. See Lee v. Lee, 12 Va. App. 512,
516, 404 S.E.2d 736, 738 (1991) (“[C]ounsel may, if he or she has previously failed to do so,
include an objection and reasons therefor in the final order or at least tender such an order to the
trial judge.”).
                                                 -6-
                  (2) Upon [the husband] presenting proof that [the wife] has
               committed adultery, she agrees to relinquish her rights under this
               agreement. For the purposes of this agreement, proof of adultery is
               defined as; unaltered photographic or video representation of
               adultery; or, a finding of guilty of adultery in a court of law.

       By leave of court, the husband filed an amended answer. He alleged the following

circumstances in this amended answer:

               3. [The husband] admits that [the wife] has correctly recited a
               portion of the parties’ agreement . . . and does not dispute that the
               copy of the Agreement that was attached to the Bill of Complaint
               is an accurate copy. [The wife] fails to mention the portion of the
               Agreement that states, “[u]pon [the husband] presenting proof that
               [the wife] has committed adultery, she agrees to relinquish her
               rights under this agreement.”

               4. [The husband] maintains that [the wife] has committed adultery,
               and as a result, he should not be obligated to pay spousal support to
               [the wife]. During the parties’ marriage, [the husband] walked into
               the former marital residence and found [a man -- identified by
               name] coming down the stairs from the bedroom level of the
               residence. After [the man’s] departure, [the wife] and her daughter
               vacated the residence for several days. Shortly after [the
               husband’s] encounter with [the man, the husband] and his son
               discovered provocative clothing belonging to [the wife] that
               contained evidence of sexual activity.

               5. Upon information and belief, [the wife] has committed adultery
               at other times and places.

As relief, the husband requested the judge to find that the wife committed adultery and to deny

the wife’s request for spousal support “in compliance with the parties’ agreement.”

       Striking the amended answer, the trial judge ruled that the husband “can[not] defeat the

payment of spousal support by showing adultery without filing a cross-bill for adultery.” He

explained “that the way [Code § 20-107.1] is framed, in order to establish adultery you have to

establish adultery as a grounds of divorce . . . and without a pleading requesting a grounds of

divorce based on adultery, the parties are never brought to issue.”




                                               -7-
        Nothing in Code § 20-107.1 or any other statute required the husband to file a pleading

requesting a divorce for adultery when he merely sought to plead the parties’ agreement as a bar

to spousal support. The wife’s pleading sought to have the parties’ agreement “affirmed,

ratified, and incorporated” into the final decree as permitted by Code § 20-109.1, and the wife

sought an award of spousal support “in accordance with the [agreement].” In plain language, the

husband’s amended answer pled the agreement as a bar to spousal support. Thus, both wife and

husband invoked the authority of the trial judge to render their agreement “a term of the decree”

as permitted by Code § 20-109.1. Indeed, the final decree granted a divorce on the ground that

the parties have lived apart, and it provides “that the Order . . . incorporating the parties’

agreement shall remain in full force and effect.”

        The decision in White v. White, 257 Va. 139, 509 S.E.2d 323 (1999), addresses in

substantial part this issue.

                  When a court exercises the authority given to it under Code
                § 20-109.1, or thereafter enforces the resulting 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 § 20-109.

                  This provision of Code § 20-109 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. See Wickham v. Wickham,
                215 Va. 694, 213 S.E.2d 750 (1975); McLoughlin v. McLoughlin,
                211 Va. 365, 368, 177 S.E.2d 781, 783 (1970). In such cases, the
                intent of the parties as expressed in the agreement controls, and the
                agreement is treated as a contract and construed in the same
                manner as all contracts. See Eaton v. Eaton, 215 Va. 824, 826, 213
                S.E.2d 789, 791 (1975); Paul v. Paul, 214 Va. 651, 653, 203 S.E.2d
                123, 125 (1974).

White, 257 Va. at 144, 509 S.E.2d at 325.
                                                 -8-
       “The office of pleadings is to give notice to the opposing party of the nature and character

of the claim.” Boyd v. Boyd, 2 Va. App. 16, 18-19, 340 S.E.2d 578, 580 (1986). The husband’s

allegations and prayer for relief in the amended answer informed the wife (and the judge) in

plain and unmistakable language that the agreement barred her from receiving spousal support if

she had committed adultery. Although the amended answer alleged that the wife had committed

adultery and named the person involved, it is a defensive pleading that does not seek to establish

independent grounds for a divorce. Simply put, the husband’s amended answer gave sufficient

notice of his intent to pursue the issue of adultery as a bar to spousal support under the

agreement.

       For these reasons, we hold that the trial judge abused his discretion in striking the

husband’s interrogatories and erred in striking the amended pleading, which sought to invoke the

authority of Code § 20-109 to limit spousal support in accordance with the parties’ agreement.

Accordingly, we reverse the decree and remand for further proceedings consistent with this

opinion.

                                                                           Reversed and remanded.




                                                -9-
