Opinion
Record No. 2192-93-1
Decided: June 28, 1994
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Frederick B. Lowe, Judge
Affirmed.
(James A. Leftwich, Jr.; Basnight, Jones, Wright, Kinser Telfeyan, on briefs), for appellant.
(Steven K. Whitaker; Whitaker and McCormack, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Carolyn Diane Hope Penley appeals the order of the circuit court terminating spousal support payments from her former husband, Robert E. Penley, Jr. The wife raises a single issue on appeal: whether language in the parties' Stipulation Agreement was sufficient to demonstrate the parties' intent to have spousal support payments from husband survive her remarriage. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
Code Sec. 20-109 requires "an expressed, not implied, provision that [spousal] support shall not terminate upon death or remarriage." Radford v. Radford, 16 Va. App. 812, 813, 433 S.E.2d 35, 36 (1993). "[A]ny attempt to abrogate the effect of the statute requires express language either citing the statute or expressly stating that remarriage does not terminate the obligation." MacNelly v. MacNelly, 17 Va. App. ___, ___, 437 S.E.2d 582, 584 (1993).
The Stipulation Agreement contains the following language:
Husband and Wife agree that Wife shall be entitled to and Husband shall pay to Wife as spousal support an amount equal to Three Hundred Dollars ($300.00) on the first day of each month, beginning on the first day of the month next succeeding the execution of this Agreement and continuing until the death of Wife or Husband, whichever occurs first.
The trial judge ruled that the agreement did not contain "clear and express language" that spousal support was intended to survive the wife's remarriage. In addition, the trial judge found insufficient evidence "reflecting a clear and express intent on the part of the Parties for [the husband's] spousal support obligation to survive [the wife's] remarriage."
Upon our review of the agreement we conclude that the trial judge correctly interpreted its provisions. Moreover, the trial judge's finding that the evidence was insufficient to support the wife's position is not plainly wrong. See Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988). Accordingly, we affirm the decision of the trial court.
Affirmed.