                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Clements, Agee∗ and Felton
Argued at Richmond, Virginia


AUSTIN E. BRUMSKILL
                                                                 MEMORANDUM OPINION∗∗ BY
v.       Record No. 1759-02-2                                  JUDGE JEAN HARRISON CLEMENTS
                                                                       OCTOBER 21, 2003
MARY BRUMSKILL


                     FROM THE CIRCUIT COURT OF CUMBERLAND COUNTY
                                  Richard S. Blanton, Judge

                   Michael J. Brickhill (Michael J. Brickhill, P.C., on brief), for
                   appellant.

                   George H. Edwards (George H. Edwards, J.D., P.C., on brief), for
                   appellee.


         Austin E. Brumskill (husband) appeals the decisions of the trial court finding him in

contempt of court for failing to pay spousal support to Mary Brumskill (wife) and denying his

motion to modify the trial court's support order. On appeal, husband contends both decisions

constitute error by the trial court because they reflect a construction of the parties' incorporated

property settlement agreement that does not comport with the plain language of the agreement

waiving the parties' respective rights to spousal support. Finding no error in the trial court's

construction of the subject property settlement agreement, we affirm the judgment of the trial

court.




         ∗
          Justice Agee participated in the hearing and decision of this case prior to his investiture
as a Justice of the Supreme Court of Virginia.
         ∗∗
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
          As the parties are fully conversant with the record in this case and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties' understanding of the disposition of this

appeal.

                                         I. BACKGROUND

          On January 10, 1997, the trial court entered a final decree of divorce reserving the issues

of spousal support, attorney's fees, and credit for mortgage payments made by husband during

the separation. On February 11, 1998, the trial court heard evidence regarding wife's request for

spousal support and attorney's fees and ruled from the bench that husband was required to pay

wife $350 per month for permanent spousal support beginning March 1, 1998, and $5,000 for her

attorney's fees in the divorce case.

          The parties did not present an order to the trial court memorializing the court's February

11, 1998 ruling until August 20, 1998.          In the interim, the parties negotiated a property

settlement agreement dated April 26, 1998.             The parties executed the property settlement

agreement in May 1998.

          The preamble of the property settlement agreement executed by the parties provides, in

pertinent part, as follows:

                 WHEREAS, the court has entered various orders in connection
                 with the parties' divorce but the parties wish to resolve some of
                 those matters by agreement; and,

                 WHEREAS, the parties hereto intend that all terms of all court
                 orders presently in effect that are not specifically changed or
                 resolved herein shall continue in full force and effect, and

                  *           *         *          *           *         *         *

                 WHEREAS, the parties hereto are desirous of settling all of their
                 rights, interests, and obligations between them, and effecting a
                 settlement between them of those matters now existing by reason

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               of their marriage heretofore solemnized and the orders of the court
               in their divorce proceeding . . . .

       The first eight numbered paragraphs of the agreement then address the specific

substantive issues of the settlement.     Paragraph 1, entitled "Rental Property and Credits,"

describes how the proceeds of the sale of rental property are to be divided between the parties

and concludes, "This will settle all sums due under the court orders for the sale of the rental real

estate and for the items set forth therein as credits and charges." Paragraph 2, entitled "Marital

Residence," addresses husband's purchase of wife's interest in the marital residence. Paragraph

3, entitled, "Credits relating to Marital Residence," describes how husband is to be credited for

the mortgage payments and property taxes he paid following the parties' separation and

concludes, "This will resolve all court orders related to these matters." Paragraph 4, entitled

"Timeshare," addresses husband's retention of the timeshare property and concludes, "This will

resolve all court orders relating to the Timeshare." Paragraph 5, entitled "Tangible personal

property," explains how the parties' personal property is to be distributed and concludes, "This

will resolve all court orders relating to the tangible personal property." Paragraph 5b, entitled

"Intangible property," describes how certain shares of stock owned by the parties are to be

distributed. Paragraph 6, entitled "Support Arrearages," provides, in pertinent part:

               Husband will pay wife the arrearage in spousal support of $350 per
               month for the months of March, April and May 1998 at the time of
               closing on the purchase of wife's interest in the marital residence
               . . . . This will resolve all matters relating to arrearages in spousal
               support through May 1998.

Paragraph 7, entitled "Attorney Fees," addresses husband's payment of the court-ordered

attorney's fees of $5,000, provides that "neither party owes the other party's counsel any further

attorney fees," and concludes, "This will resolve all matters relating to attorney fees due from

one party to the other."



                                              -3-
       The succeeding eleven paragraphs of the property settlement agreement set forth certain

acknowledgments by the parties and address fundamental contract issues—e.g., the severability

of the provisions of the agreement, the revocation and modification of the agreement, the law

governing the agreement, and the allowance for counterparts of the agreement. In paragraph 16,

entitled "Advice of Counsel; Waiver," the parties acknowledge, inter alia, "that each has read

and fully understands everything set forth in" the agreement. In paragraph 14, entitled "Release

Clause," the parties acknowledge as follows:

                       Except as otherwise provided by this Agreement, each
               party waives all rights he or she has in the property, income, and
               estate of the other, and each releases and forever discharges the
               other, his or her heirs, legal representatives, assigns, property and
               estate from all rights, claims, causes of action, demands, and
               obligations of any kind whatsoever, whether known or unknown,
               now or in the future, in law or in equity, which either of the parties
               ever had, may now have, or may have in the future against the
               other arising out of their marriage relationship, including, but not
               limited to, rights of support, alimony, maintenance, equitable
               distribution, homestead, family allowance, dower, curtesy, claims
               under the augmented estate provisions of the Virginia Code
               including any ELECTIVE SHARE in the augmented estate of the
               other party, any election regarding the estate of the other or to take
               against the Will of the other, widow's or widower's share,
               inheritance or distribution in the event of intestacy, right to act as
               personal representative of the other's estate, and all other similar
               and related rights under the laws of any state or territory of the
               United States and of any foreign country, as such laws exist or may
               hereafter be enacted or amended.

       On August 20, 1998, the parties filed with the trial court a joint motion requesting that the

parties' property settlement agreement "resolving the remaining issues of property" be

incorporated by reference into the final decree of divorce. The parties also presented to the court

a single composite order requiring husband to pay wife $350 per month in spousal support

effective March 1, 1998, and $5,000 for her attorney's fees and incorporating by reference the

parties' property settlement agreement into the final decree of divorce. The order, which was



                                               -4-
endorsed without exception by counsel for both parties, further set forth the requisite notices

under Code § 20-60.3. The trial court entered the order on August 27, 1998.

        On August 11, 1999, acting on wife's motions, the trial court reinstated the matter on the

docket and issued a rule to show cause against husband for his failure to pay spousal support in

compliance with the court's order of August 27, 1998. Upon being served with the rule to show

cause, husband filed a motion to modify the trial court's support order of August 27, 1998, to

reflect wife's waiver of spousal support in the incorporated property settlement agreement.

        At the show cause hearing on March 23, 2001, husband argued that paragraphs 6 and 14

of the property settlement agreement constituted a waiver by wife of all claims for spousal

support. Rejecting husband's argument, the trial court found husband in contempt of court for

failing to pay wife spousal support in compliance with the court's order of August 27, 1998. The

trial court also established husband's arrearage at $5,600 and denied husband's motion to modify

the support order. The court entered an order memorializing its findings and rulings on June 10,

2002.

        This appeal from that order followed.

                                         II. ANALYSIS

        The sole issue on appeal is whether the trial court was correct in finding the relevant

language of the parties' incorporated property settlement agreement did not constitute a waiver

by wife of the permanent spousal support mandated by the court's order of August 27, 1998. If

so, the court did not err in finding husband in contempt of court for failing to pay the

court-ordered spousal support and in denying his request for modification of the August 27, 1998

order. See White v. White, 257 Va. 139, 144, 509 S.E.2d 323, 325 (1999) ("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.").

                                             -5-
        Husband contends that, because paragraph 14 of the property settlement agreement

contains a clear and unambiguous waiver by the parties of all rights to spousal support, the

agreement should be construed as extinguishing his obligation to pay the court-ordered spousal

support. We disagree.

        In cases such as this, "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." Id. To

ascertain the parties' intent,

                [t]he court must give effect to all of the language of a contract if its
                parts can be read together without conflict. Where possible,
                meaning must be given to every clause. The contract must be read
                as a single document. Its meaning is to be gathered from all its
                associated parts assembled as the unitary expression of the
                agreement of the parties.

Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983).

        "Where the agreement is plain and unambiguous in its terms, the rights of the parties are

to be determined from the terms of the agreement and the court may not impose an obligation not

found in the agreement itself." Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764

(1994). "[C]ourts will generally not infer covenants and promises which are not contained in the

written provisions." Pellegrin v. Pellegrin, 31 Va. App. 753, 759, 525 S.E.2d 611, 614 (2000).

However,

                "what is necessarily implied is as much a part of the instrument as
                if plainly expressed, and will be enforced as such. If the language
                of the instrument leaves the meaning of the parties in doubt, the
                court will take into consideration the occasion which gave rise to
                it, the obvious design of the parties, and the object to be attained,
                as well as the language of the instrument itself, and give effect to
                that construction which will effectuate the real intent and meaning
                of the parties."

Id. (quoting Va. Ry. & Power Co. v. City of Richmond, 129 Va. 592, 611, 106 S.E. 529, 536

(1921) (citing Southern Ry. Co. v. Franklin Co., 96 Va. 693, 32 S.E. 485 (1899))). Indeed,

                                               -6-
               "courts are never shut out from the same light which the parties
               enjoyed when the contract was executed, and in that view they are
               entitled to place themselves in the same situation which the parties
               who made the contract occupied, so as to view the circumstances
               as they viewed them and so to judge of the meaning of the words
               and of the correct application of the language to the things
               described."

Id. at 760, 525 S.E.2d at 614 (quoting Talbott v. Richmond & Danville R.R. Co., 72 Va. (31

Gratt.) 685, 698 (1879)).

       Here, the parties acknowledged in the preamble of their property settlement agreement

that the trial court had "entered various orders in connection with the parties' divorce." The

parties further indicated in the preamble that they intended that "all terms of all court orders" in

effect when the agreement was executed that were "not specifically changed or resolved" in the

agreement were to "continue in full force and effect." (Emphasis added.)

       The record establishes that the trial court's February 11, 1998 ruling requiring husband to

pay wife $350 per month for permanent spousal support beginning March 1, 1998, was in effect

when the property settlement agreement was executed in May 1998. The order memorializing

that ruling had not yet been entered, but as expressly indicated in the order of August 27, 1998,

husband's obligation to pay the court-ordered spousal support became effective on March 1,

1998, and remained in effect "until the death of either party, the remarriage of [wife], or by

Order of a Court of competent jurisdiction based on a substantial change in circumstances of the

parties subsequent to the date of the entry of [the court's] Order," none of which had occurred

when the property settlement agreement was executed.

       Moreover, the parties acknowledged in the property settlement agreement itself that the

court's rulings on February 11, 1998, were in effect when the agreement was executed.

Paragraph 6 of the agreement requires husband to "pay wife the arrearage in spousal support of

$350 per month for the months of March, April, and May." That arrearage existed only because

                                              -7-
husband had failed to comply with the trial court's February 11, 1998 spousal support ruling.

Paragraph 7 of the agreement addresses how the "court-ordered" attorney's fees of $5,000 were

to be paid. Those fees were awarded by the court in its rulings of February 11, 1998. Hence, it

is clear from the terms of the order of August 27, 1998, and the property settlement agreement

that the parties intended that the trial court's spousal support ruling of February 11, 1998, would

continue "in full force and effect" after the execution and incorporation of the agreement unless

that ruling was "specifically changed or resolved" in the agreement.

       Our review of the property settlement agreement convinces us that it does not

"specifically change[] or resolve[]" the trial court's spousal support ruling. Unlike the issues

involving the parties' rental property, marital residence, timeshare property, tangible and

intangible personal property, support arrearages, and attorney's fees, the issue of continuing

spousal support is not specifically addressed in the property settlement agreement.

       Spousal support is referred to in paragraph 14 of the property settlement agreement.

However, that paragraph, which constitutes a general mutual release clause under which each of

the parties releases and discharges the other from all rights and claims, including spousal

support, "[e]xcept as otherwise provided" in the agreement, clearly does not specifically address

the trial court's spousal support order in effect when the agreement was executed.

       Thus, in light of (1) the general nature of the release clause and its express admonition

that it does not apply where "otherwise provided" by the agreement, (2) the specific language in

the preamble that the parties "intend that all terms of all court orders presently in effect that are

not specifically changed or resolved [in the agreement] shall continue in full force and effect,"

and (3) the fact that the agreement does not "specifically change[] or resolve[]" the court's

spousal support ruling of February 11, 1998, which was in effect when the agreement was

executed, we hold as a matter of law that it was not the intention of the parties to release husband

                                              -8-
from his continuing obligation to pay wife spousal support as required by the trial court's

February 11, 1998 ruling. Cf. Bott v. N. Snellenburg & Co., 177 Va. 331, 339, 14 S.E.2d 372,

375 (1941) (applying the fundamental rule of contract construction that, where a general

provision in a contract conflicts with a specific provision in the contract, the general provision

must "give way" to the specific provision).

       We conclude, therefore, that the trial court properly construed the property settlement

agreement and, thus, did not err in finding husband in contempt of court and denying his motion

to modify the support order. Accordingly, we affirm the judgment of the trial court.

                                                                                        Affirmed.




                                              -9-
