                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, McCullough and Senior Judge Annunziata
Argued at Alexandria, Virginia


BRENT C. BOUSMAN
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0932-11-4                                 JUDGE STEPHEN R. McCULLOUGH
                                                                   JANUARY 24, 2012
CAITLIN K. LHOMMEDIEU


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                 Michael F. Devine, Judge

                 David L. Duff (The Duff Law Firm, on brief), for appellant.

                 Stephen G. Cochran (Roeder, Cochran & Haight, PLLC, on brief),
                 for appellee.


       Brent C. Bousman (“father”) appeals from an order of the trial court requiring him,

pursuant to an agreement he reached with Caitlin K. Lhommedieu (“mother”), to pay one-half of

the cost of his son’s college attendance. Father contends that the trial court erred in its

construction of the agreement and further erred when it refused to allow him to present evidence

of mother’s past non-compliance with the terms of their agreement. Finding no error, we affirm

the judgment of the trial court and award mother attorney’s fees. We remand for a determination

of the amount of the attorney’s fees.

                                          BACKGROUND

       Father and mother were divorced in 1996. Mother and father reached a “Stipulation of

Agreement” that governs their responsibilities with respect to their son William’s education.

That agreement provides in part III as follows:


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                        B.      Education

                        1.       Education through the twelfth grade. Day care and
                 extended day program expenses for William shall be shared
                 between Brent and Caitlin equally, share and share alike. Caitlin
                 will make all final decisions on education for William after
                 consulting with Brent. If Brent disagrees with Caitlin’s final
                 decision on education for William, then Brent will not have to pay
                 his one-half of the cost of such education.

                         Caitlin agrees to choose a school for William within an
                 eleven-mile radius (excluding Maryland and D.C.) from the
                 intersection of Route 236 and the Beltway.

                         2.       Undergraduate College Education. Brent and
                 Caitlin agree to divide equally, and each pay one-half, of all costs
                 associated with William’s undergraduate college. Expenses shall
                 be defined to be tuition, room, board, books, and travel expenses
                 for three trips back and forth between school and home each year.

       The final decree of divorce incorporated, but did not merge, mother and father’s property

settlement agreement, which in turn incorporated by reference the Stipulation of Agreement.

The final divorce decree also contained the following paragraph, which essentially republished

the paragraph of the Stipulation of Agreement dealing with William’s education through the

twelfth grade:

                        The mother will make all final decisions on education for
                 the minor child, after consultation with the father. If the father
                 disagrees with the mother’s final decision on education for the
                 minor, then the father will not have to pay his one-half (1/2) cost of
                 such education. The mother agrees to choose a school for the
                 minor child within an eleven-mile radius (excluding Maryland and
                 DC) from the intersection of Route 236 and the beltway.

The divorce decree does not similarly republish the paragraph addressing college education.

       On October 27, 2010, following their son’s enrollment in college, mother filed a petition

for a rule to show cause on the basis that the father refused to pay his one-half share of their

son’s college expenses and, therefore, was in breach of his obligations under the divorce decree.

At a hearing on the rule, the father contended that the agreement, properly construed, required

                                                 -2-
mother to consult with him about their son’s college education, and she had not done so. He

further argued that mother had previously breached the agreement in a number of particulars,

notably by failing to maintain a civil relationship and by hampering the relationship between

father and son. He claimed this material non-compliance constituted a breach of the agreement

that excused any breach on his part.

       The trial court held that father would not be permitted to present evidence of past

breaches by mother. The court reasoned that a show cause proceeding is legally distinct from an

action for a breach of contract. The court further held that under the parties’ agreement, father

was responsible for one-half of his son’s college expenses and that the agreement did not require

mother to consult with father. The trial court ordered father to pay one-half of the son’s college

expenses.

                                            ANALYSIS

   I. THE TRIAL COURT WAS NOT REQUIRED TO CONSIDER ALL PAST BREACHES OF THE PARTIES’
              AGREEMENT WHEN ADJUDICATING A SPECIFIC RULE TO SHOW CAUSE.

       Father first contends that the trial court erred when it precluded him from presenting

evidence of mother’s “prior material breaches of the parties’ ‘Stipulation of Agreement.’” Father

observes that principles of contract law are applicable to agreements between the parties in

divorce cases. Under settled contract principles, he notes, a material breach of the contract by

one party will excuse non-performance by another party. Therefore, he asserts, he should have

been afforded the opportunity to show that mother had not been in compliance with the

agreement. Such a showing would excuse any non-compliance on his part.

       In resolving this claim, we note that “[t]he admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an

abuse of discretion.” Harrison v. Harrison, 58 Va. App. 90, 105, 706 S.E.2d 905, 913 (2011)

(citation omitted).
                                                -3-
        The flaw with father’s argument, as the trial court readily discerned, is that this is not an

action for breach of contract. Where, as here, the trial court has incorporated the agreement of

the parties into the final decree of divorce, the agreement acquired a dual nature as both a

contract and an order of the court. As this Court has noted, when a party invokes a court’s

contempt authority and seeks to bring a party into compliance with the court’s order, “[i]t is not

the contract but rather the decree that is being enforced.” Doherty v. Doherty, 9 Va. App. 97, 99,

383 S.E.2d 759, 760 (1989).

        Consequently, when a court has incorporated an agreement under Code § 20-109.1, a

party may not, as in a pure contractual situation, suspend its performance, even when the

opposing party is in breach. Instead, the non-breaching party must continue “to comply with the

terms of the decree until modified by a further order of the court.” Newton v. Newton, 202 Va.

515, 518, 118 S.E.2d 656, 658 (1961). The logic of Newton applies in the present case.

Assuming that mother had breached the agreement, father is not relieved of his obligation under

the court decree. When vindicating the authority of its own orders, the trial court is vested with

the discretion to determine the scope of the show cause proceeding, and may limit the evidence

at the hearing to a specific issue.

        The cases father relies upon are inapplicable. In each of those cases, the court addressed

the settled principle of contract law that “a plaintiff has no right of action for a breach of contract

where he himself has first broken it.” Neely v. White, 177 Va. 358, 366, 14 S.E.2d 337, 340

(1941). None of those cases dealt with an agreement that was incorporated into an order of the

trial court. See Federal Ins. Co. v. Starr Electric Co., 242 Va. 459, 410 S.E.2d 684 (1991)

(dispute between two insurance carriers concerning a subcontractor’s claim against a general

contractor seeking payment for electrical work performed and materials supplied in a building

renovation project); Neely, 177 Va. at 360, 14 S.E.2d at 338 (dispute over assumption of loan

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payments by third party); Hurly v. Bennett, 163 Va. 241, 176 S.E. 171 (1934) (real estate

contract). As the trial court observed, an ordinary breach of contract action is doctrinally

separate from a situation where a court is asked to enforce its own orders through a contempt

action.

          To be sure, contractual principles come into play, particularly in the construction of the

agreement between the parties. See, e.g., White v. White, 257 Va. 139, 144, 509 S.E.2d 323, 326

(1999). That, however, does not alter the nature of the enforcement action. 1 In this show cause

proceeding designed to enforce a prior order of the court, the trial court did not abuse its

discretion by declining to hear father’s evidence of breaches of other provisions of the agreement

by mother.

 II. THE AGREEMENT REQUIRES FATHER TO PAY ONE-HALF OF THEIR SON’S COLLEGE EDUCATION
                AND DOES NOT REQUIRE MOTHER TO CONSULT WITH FATHER.

          Father next contends that, properly construed, the divorce decree and the “Stipulation of

Agreement” required mother to consult with him regarding their son’s choice of a college and to

obtain his agreement. Because she did not do so, father argues, he is absolved of any obligation

to pay for half of his son’s college education.

          Agreements such as this one are “subject to the same rules of construction that apply to

the interpretation of contracts generally.” Southerland v. Estate of Southerland, 249 Va. 584,

588, 457 S.E.2d 375, 378 (1995). Whether a contract is ambiguous is a question of law which

we review de novo. Langman v. Alumni Ass’n of the Univ. of Va., 247 Va. 491, 498, 442

S.E.2d 669, 674 (1994). If the meaning of the agreement is unambiguous, courts will “adhere to

the plain meaning of its stated terms.” White, 257 Va. at 145, 509 S.E.2d at 326.


          1
         Moreover, opening the door to such evidence would have the effect of turning minor
skirmishes into an Armageddon of recriminations over mutual allegations of non-compliance.
Such an undesirable result further counsels against an across-the-board application of contract
principles to enforcement actions such as this one.
                                               -5-
       The plain language of the agreement, in paragraph III(B), plainly calls for husband to pay

for one-half of the college costs:

                       2.       Undergraduate College Education. Brent and
               Caitlin agree to divide equally, and each pay one-half, of all costs
               associated with William’s undergraduate college. Expenses shall
               be defined to be tuition, room, board, books, and travel expenses
               for three trips back and forth between school and home each year.

Nothing in the specific language of this clause required mother to consult with father. 2 The

absence of a consultation requirement in this paragraph contrasts with the immediately preceding

paragraph. Under the paragraph governing education through the twelfth grade, mother was

expressly required to consult with father and to obtain his assent. These contrasting paragraphs

make the parties’ intent clear.

       Father points to a paragraph of the divorce decree, which provides that

                      The mother will make all final decisions on education for
               the minor child, after consultation with the father. If the father
               disagrees with the mother’s final decision on education for the
               minor, then the father will not have to pay his one-half (1/2) cost of
               such education. The mother agrees to choose a school for the
               minor child within an eleven-mile radius (excluding Maryland and
               DC) from the intersection of Route 236 and the beltway.

He contends that this paragraph required mother to consult with father regarding all aspects of

their son’s education and absolved him of responsibility if he did not agree with the choice of

college. We reject father’s argument for a number of reasons. First, it is apparent that the

paragraph father relies upon essentially republished the provision dealing with the education

through the twelfth grade found in the parties’ Stipulation of Agreement. This paragraph does


       2
          The language of this clause contrasts with the provision at issue in Jones v. Jones, 19
Va. App. 265, 450 S.E.2d 762 (1994). The agreement in Jones provided that “[b]oth parents
shall agree on the college of attendance and the children shall make satisfactory progress in that
college program.” Id. at 266, 450 S.E.2d at 762 (emphasis added). We held in Jones that this
agreement afforded father “the right to ‘veto’ the selection of a particular college and, by
exercising that right, to eliminate any obligation to pay a parental share of the expenses incurred
at a college rejected by him.” Id. at 270, 450 S.E.2d at 764-65.
                                                 -6-
not on its face purport to supplant the more specific provision addressing college education.

Father’s interpretation of the paragraph above effectively would write out of the agreement the

specific provision that governed the parties’ obligation with respect to their son’s college

education. Father’s construction of the divorce decree contravenes the settled rule that “contracts

must be construed to give effect to every part thereof.” Roanoke Marble & Granite Co. v.

Standard Gas Oil & Supply Co., 155 Va. 249, 254, 154 S.E. 518, 520 (1930).

       Moreover, the paragraph father relies upon from the divorce decree addresses the

education of the “minor child.” The parties’ son is no longer a “minor child.” By its plain

language, therefore, this clause does not apply. Anticipating this point, father argues that the

term “minor child” “is used throughout [the divorce decree] as a synonym for William” and that,

“[o]therwise, the trial court’s ruling creates substantial and material inconsistencies within the

final decree of divorce.” We reject father’s strained interpretation of the agreement. In various

clauses, the divorce decree does refer to William as “the minor child” – which, at the time of the

entry of the decree, he was. These descriptions of William as a minor child do not alter the plain

meaning of the paragraph addressing William’s college education. 3

       Finally, Code § 20-109(C) provides that where, as here, the parties have reached a

“stipulation or contract,” “no decree or order . . . imposing any other condition or consideration,

monetary or nonmonetary, shall be entered except in accordance with that stipulation or

contract.” By incorporating this agreement into the final divorce decree, the trial court’s purpose

was to give the parties’ agreement full effect, not to rewrite or undermine it. To read the

agreement as father suggests would artificially create tension between the parties’ agreement and

the divorce decree which specifically incorporated that agreement.


       3
         Father’s reading of the agreement would also produce an anomalous restriction on
William’s college education, by limiting his choice of college to “an eleven-mile radius
(excluding Maryland and DC) from the intersection of Route 236 and the beltway.”
                                               -7-
       In short, the agreement of the parties contains no requirement that mother consult with

father about a choice of college, and no requirement that father agree to the choice of college.

The trial court was correct in its interpretation of the divorce decree and the agreement mother

and father negotiated.

                                          CONCLUSION

       We hold that the trial court committed no abuse of discretion when it excluded father’s

proffered evidence of past breaches of the agreement by mother. We further hold that the

agreement between the parties plainly provides, with no obligation of consultation on the part of

mother or agreement by father, that father will pay one-half of his son’s college expenses.

       Finally, under the parties’ property settlement agreement, “any costs, including but not

limited to counsel fees and court costs incurred by a party in the substantially successful

enforcement of any of the agreements, covenants or provisions of this Agreement, whether

through litigation or otherwise shall be borne by the defaulting party.” In light of this provision,

we award attorneys’ fees to mother. We remand to the trial court solely for a determination of

the amount of fees to be awarded for mother’s successful litigation of this appeal.

                                                                           Affirmed and remanded.




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