In my view, Allen v. Allen, Record No. 1702-15-4 (VA Ct. App., August 30, 2016), misses a major public policy issue and then misconstrues the parties’ separation agreement.
Husband breaches an agreement to stay married for 20 years. He obtains a much earlier divorce from the trial court.
I. The Court of Appeals erroneously fails to declare that the parties’ mutual prohibition against divorcing for two decades violates the public policy of the Commonwealth.
The U.S. Supreme Court has recognizes that states’ statutory authority over divorce is a reflection of public policy:
“The State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people.
“Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.” Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed.2d 654 (1888). [Emphasis added.]
Zablocki v. Redhail, 434 U.S. 374, 399, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978).
In a case remarkably similar to Allen, also involving a contractual prohibition against obtaining a divorce, the New York Supreme Court in Filstein held that It is morally reprehensible to obligate people by contract to remain in a dead marriage. Filstein v. Bromberg, 36 Misc.3d 404, 944 N.Y.S.2d 692, 2012 N.Y. Slip Op. 22090 (N.Y. Sup. Ct., 2012). (New York is considered a leading source of family law jurisprudence in the United States.)
“The purpose underlying [liberalization of fault grounds] was to “recognize grounds for divorce … as manifestations of dead marriages, marriages that should be terminated for the mutual protection and well being of the parties and, in most instances, of their children.”
944 N.Y.S.2d at 696. Moreover, the court continued:
“Implicit in the statutory scheme is the legislative recognition that it is socially and morally undesirable to compel couples to a dead marriage to retain an illusory and deceptive status and that the best interests not only of the parties but of society itself will be furthered by enabling them “to extricate themselves from a perpetual state of marital limbo.”
The identical reasoning articulated in Filstein applies in Virginia. I believe that the Allen court should have differentiated the public policy rationale articulated by the New York court, even if it was choosing not to adopt it.
The Virginia Court of Appeals in Allen invoked an entirely different public policy — the one favoring reconciliation agreements. But that policy is irrelevant. This is not a case of “kiss and make up”. The Allens are not reconciling!
II. The Wife was the major loser in Allen. Not only does the Court of Appeals fail to set aside the 20-year divorce ban as violative of Virginia public policy — as it should have; it ignores the plain meaning of material terms in the separation agreement by disregarding any value to the wife in staying married and by failing to allow her any damages.
My opinion is that after missing the real public policy issue, the Court of Appeals erred in five (5) additional ways:
1. The Court of Appeals erred in ruling that the Husband owes no damages for divorcing in less than 20 years. The Court erroneously concluded the 20-year provision was inconsequential, even though being married conveys economic benefits far beyond the health insurance that the wife could have received by contract whether she were married or divorced. There is no justifiable reason for the Court of Appeals to find that the stay-married provision is less important than the health insurance.
(The first two pages of “analysis” by the Court of Appeals validate husband’s divorce forbearance as adequate consideration to support the parties’ contract. This is an unnecessary argument. Consideration is not an issue, since the record indicates husband retained an additional portion of his 401K in exchange for extending wife’s health insurance.)
2. The Court lists health-insurance-termination contingencies mentioned in the contract as evidence in support of its argument that the parties contemplated divorce in less than 20 years. This whole argument is illogical; none of the cited contingencies has anything to do with whether or not the parties are married!
3. When the Court of Appeals denigrated the importance of the 20-year-marriage clause based upon a failure to articulate damages, it ignored a fundamental principle of contract construction: All words in a contract are supposed to be attributed meaning. A failure to specify damages does not mean that a divorce-prohibition is without purpose or that damages in case of breach are nonexistent. If the 20-year clause is enforceable as the Court of Appeals claims, then the Court should have remanded this case for a calculation of damages resulting from husband attempting to divorce sooner than agreed.
4. The Court of Appeals considered the parties’ intent even though their agreement was unambiguous. Courts are not supposed to look beyond the plain and ordinary language of a contract when its terms are clear.
“In Virginia[,] property settlement agreements are contracts and subject to the same rules … of interpretation as other contracts.” Smith v. Smith, 3 Va.App. 510, 513, 351 S.E.2d 593, 595 (1986) (citing Tiffany v. Tiffany, 1 Va.App. 11, 15, 332 S.E.2d 796, 799 (1985)). “As such, it is the function of the court to construe the contract made by the parties, not to make a contract for them. The question for the court is what did the parties agree to as evidenced by their contract. The guiding light in the construction of a contract is the intention of the parties as expressed by them in the words they have used, and courts are bound to say that the parties intended what the written instrument plainly declares.”
Irwin v. Irwin, 47 Va.App. 287, 293, 623 S.E.2d 438, 441 (2005) (quoting Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984)).”
Craig v. Craig, 59 Va.App. 527, 721 S.E.2d 24, 28 (Va. App., 2012).
5. Wife received no attorney fees on appeal even though the contract required an award of attorney fees to a prevailing party, and the wife prevailed in salvaging her health insurance. If the divorce ban is immaterial, then the husband’s disregarding the ban should not be the basis for stripping the wife of her entitlement to fees.
III. In conclusion, my respectful view is that the Court of Appeals in Allen improperly condoned a violation of Virginia public policy: Spouses should not be permitted to require each other to remain married for decades after the marriage is over. Further, the Court of Appeals misapplied principles of contract interpretation.
Had I served on the appellate panel, I would have vigorously dissented.