PRESENT: All the Justices 

RUSSELL A. WHITE 

 OPINION BY 

v. Record No. 980197 JUSTICE LAWRENCE L. KOONTZ, JR. 

January 8, 1999 

DREMA C. WHITE 

FROM THE COURT OF APPEALS OF VIRGINA 

In this appeal, we consider whether an agreement to pay a 

mortgage on the former marital home, which was ratified by the 

trial court and incorporated into a final divorce decree, was 

properly construed by the trial court in a subsequent show cause 

hearing as obligating the former husband to make spousal support 

payments after the mortgage debt had been satisfied. 

BACKGROUND 

Drema C. White and Russell A. White were married March 4, 

1967. The couple separated on May 24, 1988. Mrs. White 

continued to occupy the marital home located on Ash Drive in 

Christiansburg. Mr. White relocated to North Carolina and later 

deeded his interest in this home to his estranged wife. 

In 1991, Mrs. White contacted Mr. White in North Carolina 

and indicated that she intended to obtain a divorce. 

Thereafter, at Mrs. White’s request, Mr. White returned to 

Virginia and executed the following agreement: 

I, RUSSELL A. WHITE DO HEREBY PROMISE TO PAY THE 

$30,000.00 (THIRTY THOUSAND DOLLARS) MORTGAGE FOR THE 

HOUSE AND PROPERTY LOCATED AT 265, ASH DRIVE, 

CHRISTIANSBURG, VIRGINIA 24073. SAID PAYMENTS TO BE 

MADE TO FIRST VIRGINIA BANK ON A REGULAR MONTHLY BASIS 
FOR 120 (ONE HUNDRED TWENTY) MONTHS. I RESERVE THE 

RIGHT TO PAY OFF THE MORTGAGE EARLY WITHOUT PENALTY. 

I PROMISE TO PAY PRINCIPLE [sic] AND ACCRUED INTEREST 

ONLY. I WILL NOT PAY ESCROW FOR TAXES, INSURANCE, NOR 

ANY OTHER PURPOSE. IF ALLOWABLE BY CURRENT TAX CODES, 

I RESERVE THE RIGHT TO CLAIM MORTGAGE INTEREST AS MY 

EXPENSE FOR INCOME TAX PURPOSES. THIS PROMISE TO PAY 

THE MORTGAGE IN NO WAY CONSTITUTES LIABILITY FOR SAID 

PROPERTY. IN THE EVENT OF MY DEATH, THIS PROMISE IS 

NULL AND VOID—IT DOES NOT PASS TO MY HEIRS NOR TO MY 

ESTATE. 

SIGNED: s/RUSSELL A. WHITE 

DATE: 5-1-91 

This agreement was notarized, but was not signed by Mrs. White. 

On May 31, 1991, Mrs. White filed a bill of complaint in 

the Circuit Court of Montgomery County (trial court) seeking a 

divorce and alleged that Mr. White had “agreed, in writing, to 

give [her] the sum of Thirty Thousand Dollars ($30,000.00), 

payable in 120 monthly installments.” The May 1, 1991 agreement 

was appended to the bill of complaint as “Exhibit ‘A.’” The 

bill of complaint was personally served on Mr. White, who did 

not file a response. 

Mr. White was served with notice that the depositions of 

Mrs. White and others would be taken in support of the bill of 

complaint. He did not appear when these depositions were 

subsequently taken or otherwise offer any evidence before the 

case was submitted to the trial court for entry of a final 

decree of divorce. In Mrs. White’s deposition, filed with the 

trial court, she requested that the May 1, 1991 agreement filed 

2
with the bill of complaint and “marked Exhibit ‘A’” be 

“incorporated by reference” in the final decree of divorce. 

On July 15, 1991, after reviewing the depositions and the 

agreement, the trial court entered a final decree of divorce 

which provided that “[Mr. White] entered into an agreement dated 

May 1, 1991, with respect to maintenance and support.” The 

decree, pursuant to Code § 20-109.1, further provided that 

it is further ADJUDGED, ORDERED and DECREED that the 

Court doth ratify, confirm, approve and incorporate 

into this decree by reference thereto the Agreement 

made by the defendant dated May 1, 1991. 

On November 17, 1994, Mrs. White sold the marital home and 

the balance due on the mortgage was paid from the proceeds of 

the sale. Until that time, Mr. White made the monthly payments 

as called for in the agreement to the mortgagee bank, but 

thereafter he made no payments to Mrs. White. On February 2, 

1995, Mrs. White petitioned the trial court for an order to 

require Mr. White to show cause why he should not be held in 

contempt for failure to make the payments to her that she 

asserted were due pursuant to the July 15, 1991 divorce decree. 

A show cause hearing was held on February 23, 1995. During 

that hearing, Mr. White maintained that by the terms of the 

agreement in question he had obligated himself to the bank and 

not to Mrs. White. Accordingly, he further maintained that the 

satisfaction of the mortgage when the home was sold terminated 

3
his obligation under the agreement. Thereafter, the trial court 

entered an order on February 27, 1995 which, in pertinent part, 

provides: 

UPON CONSIDERATION of the facts and issues, the 

Court holds that by Final Decree entered on July 15, 

1991, . . . which Decree stated that [Mr. White] 

entered into an agreement dated May 1, 1991, with 

respect to maintenance and support. 

 By [the decree dated] July 15, 1991, the Court 

construed the agreement as an obligation of Spousal 

Support.[1] 

 The Court on July 15, 1991 having made this 

determination, must now decide in light of the current 

dispute between the parties, the characterization of 

said support obligation. From the evidence presented 

herein, the Court finds as follows: 

 1. The agreement previously ratified and 

confirmed constitutes a lump sum award to [Mrs. White] 

be [sic] a certain sum of $30,000.00 payable in 

installments, and it is hereby, 

. . . . 

 ADJUDGED, ORDERED and DECREED, that this matter 

is taken under advisement for a period of one year 

from June 1, 1995 to allow [Mr. White] to purge 

himself of said Contempt, provided he commence monthly 

payments to [Mrs. White] . . . beginning June 1, 1995. 

Upon Mr. White’s appeal to the Court of Appeals, a divided 

panel affirmed the judgment of the trial court. The majority of 

the panel agreed with the trial court that the reference to the 

agreement in the final decree of divorce as being “an agreement 

 

1

The trial judge who conducted this hearing was not the same 

judge who entered the divorce decree. 

4
. . . with respect to maintenance and support” constituted a 

“finding” that the agreement included an obligation to pay 

spousal support. Accordingly, the majority held that because 

the finding had not been appealed in 1991 it was not subject to 

collateral attack in the 1995 show cause hearing. White v. 

White, 24 Va. App. 297, 302-03, 482 S.E.2d 78, 80 (1997). 

Mr. White filed a petition for rehearing en banc, which the 

Court of Appeals granted. Upon the rehearing en banc, an 

equally divided Court affirmed the judgment of the trial court 

without opinion. The opinion previously rendered by the panel 

was withdrawn, and the mandate entered under that opinion was 

vacated. White v. White, 26 Va. App. 250, 251, 494 S.E.2d 161, 

162 (1997). We awarded Mr. White this appeal. 

DISCUSSION 

Relative to a divorce proceeding, Code § 20-109.1 

authorizes the trial court, in its discretion, to 

affirm, ratify and incorporate by reference in its 

decree dissolving a marriage or decree of divorce 

. . . any valid agreement between the parties . . . 

concerning the conditions of the maintenance of the 

parties, or either of them . . . or establishing or 

imposing any other condition or consideration, 

monetary or nonmonetary. 

When a court exercises the authority given to it under Code 

§ 20-109.1, or thereafter enforces the resulting decree, 

no decree or order directing the payment of support 

and maintenance for the spouse . . . or establishing 

or imposing any other condition or consideration, 

5
monetary or nonmonetary, shall be entered except in 

accordance with that stipulation or contract. 

Code § 20-109. 

This provision of Code § 20-109 inhibits the power of the 

court to award or consider modification of the decree to the 

extent that spousal support and maintenance are provided for in 

the incorporated agreement of the parties. See Wickham v. 

Wickham, 215 Va. 694, 213 S.E.2d 750 (1975); McLoughlin v. 

McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970). In 

such cases, the intent of the parties as expressed in the 

agreement controls, and the agreement is treated as a contract 

and construed in the same manner as all contracts. See Eaton v. 

Eaton, 215 Va. 824, 826, 213 S.E.2d 789, 791 (1975); Paul v. 

Paul, 214 Va. 651, 653, 203 S.E.2d 123, 125 (1974). Thus, the 

issue presented by the present appeal is whether the trial court 

in 1995 properly construed the parties’ May 1, 1991 agreement, 

which was incorporated into the July 15, 1995 final decree of 

divorce, as an obligation of spousal support of a lump sum 

requiring Mr. White to pay that sum in monthly installments with 

interest to Mrs. White.2

 

2

Contrary to the view expressed by the majority in the 

opinion of the panel of the Court of Appeals, this issue is 

properly preserved by Mr. White’s appeal from the trial court’s 

February 27, 1995 order. The 1991 divorce decree simply did not 

construe the agreement as a lump sum spousal award. 

6
The parties do not contend, and neither do we find, that 

the language of the agreement is ambiguous. Therefore, under 

well established principles, we adhere to the plain meaning of 

its stated terms. See Berry v. Klinger, 225 Va. 201, 208, 300 

S.E.2d 792, 796 (1983). The agreement clearly obligates Mr. 

White to pay the $30,000 mortgage on the house located at 265 

Ash Drive in Christiansburg to First Virginia Bank in 120 

monthly installments. It contains no provision for Mr. White to 

make any payments to Mrs. White. Moreover, and of particular 

significance in this case, nothing within the express terms of 

the agreement evinces any intent of the parties that Mr. White’s 

obligation would survive the satisfaction of the mortgage debt, 

regardless of the manner in which that debt was extinguished. 

Accordingly, we hold that the agreement obligated Mr. White 

to make payments on the mortgage on the marital home so long as 

that debt existed, but did not obligate him to pay a fixed sum 

to the wife in installments with interest, as she alleged in her 

bill of complaint and as the trial court subsequently found in 

the show cause hearing. The language of the final decree of 

divorce referencing the agreement as “an agreement . . . with 

respect to maintenance and support” could not, and did not, 

alter the intent of the parties as expressed in the agreement. 

For these reasons, and because there is no dispute that Mr. 

White made the required mortgage payments, we will reverse the 

7
judgment of the Court of Appeals and enter final judgment for 

Mr. White, dismissing the rule to show cause. 

Reversed and final judgment. 

8