An opinion reiterating a simple rule that everyone knows, against a stubborn and wrongheaded appellant, is generally the kind of opinion that should be unpublished. But in Kahn v. McNicholas (1/31/17), the Court of Appeals publishes such a case to remind us WHY anything in a divorce decree can be enforced via contempt-of-court, and not just by the methods used to enforce money judgments in non-family cases. It cites the universally used language of Virginia divorce decrees in cases with agreements, and several statutes we take so much for granted that we have mostly forgotten where they are.
Mr. Kahn, a lawyer, drafted a property settlement agreement with a lump-sum property-division monetary award divided into monthly payments of $2,500 a month, but then when he drafted his divorce decree he referred to these as spousal support. When he failed to pay these payments and the health insurance and car insurance premiums he had also agreed to pay, his ex asked the court to hold him in contempt. Her pleading referred to the unmade payments as spousal support, mostly because the divorce decree being enforced, originally drafted by Mr. Kahn, did so. Mr. Kahn in his appeal made much of this, arguing that contempt of court could only be used to enforce support, and a property-division money judgment could only be enforced like money judgments in other kinds of civil cases. But that entire distinction and terminology problem is a total red herring, the Court of Appeals points out, because of two different divorce statutes:
§ 20-109.1. Affirmation, ratification and incorporation by reference in decree of agreement between parties. ... 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.
§ 20-107.3. Court may decree as to property and debts of the parties. ...
K. The court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including the authority to:
1. Order a date certain for transfer or division of any jointly owned property under subsection C or payment of any monetary award under subsection D;
2. Punish as contempt of court any willful failure of a party to comply with the provisions of any order made by the court under this section; ...
The ex-husband cited case law suggesting that the only way to enforce a monetary award was under Code § 20-107.3(D):
"... the court has the power to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party. ... An award entered pursuant to this subsection shall constitute a judgment within the meaning of § 8.01-426 and shall not be docketed by the clerk unless the decree so directs. An award entered pursuant to this subsection may be enforceable in the same manner as any other money judgment. ..."
The case law Kahn relied on was from before subsection K(2) was enacted, and the Court was not persuaded by it. It pointed out that people in Kahn's position are rightly subject not only to enforcement of a money judgment, but to additional punishment for the separate, serious offense of willfully disobeying a court order.