Does wife’s alleged prior infidelity invalidate a separation agreement incorporated into a final decree of divorce?

Does wife’s alleged prior infidelity invalidate a separation agreement incorporated into a final decree of divorce?

Not in the case of Kahn V. McNicholas, 67 Va. App. 215, 795 S.E.2d 485 (2017), where the Virginia Court of Appeals upheld the Circuit Court ruling the attorney ex-husband was in contempt of court for failing to abide by the terms of the final decree.  While the primary issue involved in Kahn is the court’s ability to hold a spouse in contempt for failing to pay a monetary obligation, the ex-husband also raised wife’s prior adultery as a defense to enforcement of the separation agreement.

In Kahn, the parties voluntarily separated after more than ten years of marriage.  The husband, a licensed practicing attorney in Virginia, drew up the written separation agreement and the final decree of divorce.  In the written separation agreement, he agreed to pay his wife $40,000 in sixteen monthly installments of $2,500 and the parties waived each’s right to spousal support.  In the final decree of divorce, husband’s monetary obligation to wife was described as spousal support in that portion of the form decree he used incorporating the language required by Virginia Code Section 20-60.3 (which is only required in orders directing the payment of spousal or child support, including one created by the incorporation of a written separation agreement).  Husband also agreed to cover wife’s insurance for the remainder of the year of divorce.

After making ten monthly payments, husband stopping making the monthly payments, claiming the agreement was invalidated by wife’s prior adultery.  Wife filed a petition for a rule to show cause, and the court summoned the husband to appear and show cause why he should not be held in contempt of court for violating the terms of the final decree.  In addition to his argument about wife’s prior infidelity, the husband argued the court could not hold him in contempt for violating a monetary obligation, citing Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364 (1987).  Further, husband alleged wife and her attorney should be sanctioned for describing the monetary obligations as support.  The court disagreed with all of husband’s arguments and gave him a month to purge his contempt by curing the default in payments.  Husband’s appeal of this order was dismissed as the order was interlocutory and not final.  After husband failed to purge his contempt, the Circuit Court judge held husband in contempt for violating both the interlocutory order and the final decree of divorce.

On appeal, the Virginia Court of Appeals recognized that the applicable standard for reviewing a trial court’s ruling that a party was in contempt of court was the abuse of discretion standard, citing Epps v. Commonwealth, 47 Va. App. 687, 626 S.E.2d 912 (2006).  In addition, the evidence would be viewed in the light most favorable to the appellee wife, who was the prevailing party, and reasonable inferences would be drawn in her favor.  Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833 (2003).

The Virginia Court of Appeals disagreed with husband’s arguments and upheld the trial court’s ruling of contempt of court.  The written separation agreement was properly made a part of the final decree by virtue of Virginia Code Section 20-109.1, and was enforceable as any court order, even though spousal support is different from other monetary obligations.  Alternatively, the monetary obligation could be seen as part of the final decree pursuant to the court’s authority to enter a lump sum money judgment under Virginia Code Section 20-197.3.  The appellate court held that the ruling in Brown v. Brown was superceded by amendments to Virginia’s equitable distribution statute in 1991.  Specifically, Virginia Code Section 20-107.3(K) now provides that the court has the authority to “..[p]unish as contempt of court any willful failure of a party to comply with the provisions of any order made by the court [under the equitable distribution statute]”.  The Virginia Court of Appeals disagreed with husband’s argument for sanctions, as he drafted the final decree which described the payments as support, and the characterization of the payments as support was, at worst, an inadvertent error which did not deprive husband of his ability to defend the show cause.

You should discuss any alleged violations of a separation agreement or final decree with your Virginia divorce lawyer, or Richmond Divorce Lawyer James H. Wilson, Jr.

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