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Wilcher v. Slayton

Court of Appeals of Virginia
Mar 28, 1995
Record No. 1437-94-3 (Va. Ct. App. Mar. 28, 1995)

Opinion

Record No. 1437-94-3

Decided: March 28, 1995

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY, Duncan M. Byrd, Jr., Judge

(Edward K. Stein; Alderson Stein, on brief), for appellant.

(Christopher Wm. Schinstock; St. Clair Associates, on brief), for appellee.

Present: Judges Benton, Coleman and Willis


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Carl Washington Wilcher appeals the decision of the circuit court ordering him to pay health insurance premiums for his former spouse, Marguerite Carol Slayton. Wilcher raises three issues on appeal: (1) whether his obligation to pay for Slayton's health insurance premium under the parties' Stipulation Agreement was modified by a decree of the juvenile and domestic relations district court; (2) whether his obligation to pay for Slayton's health insurance premium expired upon the entry of the final decree of divorce; and (3) whether Slayton's claim is barred by the statute of limitations. 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. Rule 5A:27.

Juvenile and Domestic Relations District Court Order

The juvenile and domestic relations district court reduced the amount of monthly support paid by Wilcher to Slayton from $300 to $200 prior to the entry of the final decree of divorce. The district court order is silent as to all other issues settled between the parties in their Stipulation Agreement. Slayton testified that the sole purpose of the district court hearing was to adjust spousal support and neither party addressed the issue of health insurance.

The circuit court determined that the district court order modified the Stipulation Agreement only for the purpose of reducing the monthly spousal support payment. "The judgment of a trial court sitting in equity, when based upon an ore tenus hearing, will not be disturbed on appeal unless plainly wrong or without evidence to support it." Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986). The circuit court's finding concerning the issue presented to the district court is supported by credible evidence, including the testimony of Slayton. We find unpersuasive Wilcher's argument that the district court's failure to fill in blanks on a form order dealing with matters not raised during the hearing is a repudiation of the parties' previously negotiated agreement. The district court was not required to memorialize in its order an issue that was not presented for decision. Therefore, we affirm the trial court's ruling that the final decree of divorce incorporating the Stipulation Agreement retained Wilcher's obligation to pay Slayton's health insurance premiums.

Procedural Bar

Slayton argues that Wilcher is barred from raising issues (1) and (2). We disagree. Wilcher raised issues (2) and (3) after the trial court's oral ruling but before entry of its written order. While the court did not specifically address either issue in its order, Wilcher's counsel noted his objection to the entry of the court's order based upon the issues raised in his letter. Therefore, we conclude that these issues were considered and rejected by the trial court and that we are not barred by Rule 5A:18 from reviewing those issues on appeal.

One-Time Election

"[O]n appeal if all the evidence which is necessary to construe a contract was presented to the trial court and is before the reviewing court, the meaning and effect of the contract is a question of law which can readily be ascertained by this court." Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987). Wilcher contends that, under the parties' Stipulation Agreement, Slayton had to elect to have Wilcher pay her health insurance premiums at the time the final decree of divorce was entered. In pertinent part, the Stipulation Agreement read as follows:

ITEM XII: Husband will carry wife on medical and dental insurance till a divorce becomes final. After the divorce becomes final, husband shall pay premiums on wife's new medical policy if wife cannot get coverage through her employment.

We agree with Wilcher that, under the agreement, Wilcher had different responsibilities prior to and after the entry of a final decree of divorce. However, nothing in the language of the Stipulation Agreement imposed upon Slayton a one-time only election requirement, or placed any time limitations upon Wilcher's obligation to pay for Slayton's health insurance if she was unable to obtain insurance through her employment. " 'However inartfully it may have been drawn, the court cannot make a new contract for the parties, but must construe its language as written.' " Tiffany v. Tiffany, 1 Va. App. 11, 16, 332 S.E.2d 796, 799 (1985) (citations omitted). Therefore, we reject Wilcher's interpretation that his obligation expired upon entry of the final decree.

Statute of Limitations

The final decree of divorce incorporated the parties' Stipulation Agreement. "Where the court affirms, ratifies and incorporates by reference in its decree such agreement or provision thereof, it shall be deemed for all purposes to be a term of the decree, and enforceable in the same manner as any provision of such decree." Code Sec. 20-109.1. See, e.g., Rodriguez v. Rodriguez, 1 Va. App. 87, 90, 334 S.E.2d 595, 597 (1985) (incorporated agreement "is enforceable as part of the decree"). Therefore, the statute of limitations for actions arising in contract was inapplicable to Slayton's motion to enforce the terms of the final decree. See Code Sec. 8.01-246(2).

Accordingly, the decision of the circuit court is summarily affirmed.

Affirmed.


Summaries of

Wilcher v. Slayton

Court of Appeals of Virginia
Mar 28, 1995
Record No. 1437-94-3 (Va. Ct. App. Mar. 28, 1995)
Case details for

Wilcher v. Slayton

Case Details

Full title:CARL WASHINGTON WILCHER v. MARGUERITE CAROL SLAYTON

Court:Court of Appeals of Virginia

Date published: Mar 28, 1995

Citations

Record No. 1437-94-3 (Va. Ct. App. Mar. 28, 1995)