COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata 

Argued at Alexandria, Virginia 

THOMAS J. SULLIVAN, JR. 

 OPINION BY

v. Record No. 0027-00-4 JUDGE JAMES W. BENTON, JR. 

 NOVEMBER 21, 2000 

MARY F. SULLIVAN 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Henry E. Hudson, Judge 

 Theresa E. Cummins (William B. Reichhardt; 

Margaret B. Craig; William B. Reichhardt & 

Associates, on brief), for appellant. 

 J. Thomas Fromme, II (Sherman & Fromme, P.C., 

on brief), for appellee. 

 This appeal arises from an order enforcing a property 

settlement agreement, which was affirmed, ratified, and 

incorporated into an order in a prior divorce proceeding. 

Thomas J. Sullivan contends the trial judge committed five 

reversible errors in a contempt proceeding initiated by his 

former wife, Mary F. Sullivan. For the reasons that follow, we 

affirm the decision. 

I. 

 Thomas J. Sullivan and Mary F. Sullivan were divorced by a 

decree dated April 26, 1976, that reserved for future 

consideration issues of "alimony, support, maintenance, 

arrearage, court costs and counsel fees." On July 9, 1976, a 
judge approved, ratified, and incorporated into a court order 

the parties' property settlement agreement. Under the heading 

"Custody, Alimony, Support and Maintenance," the agreement 

contained the following provisions relevant to this appeal: 

b. The Husband shall make the following 

periodic payments to the Wife for the 

maintenance and support of the Wife and for 

the maintenance and support of the two minor 

children of the parties: 

The sum of [$1,300] per month, commencing on 

the 9th day of July, 1976, and continuing on 

the 5th day of each and every month 

thereafter. As each child dies, marries, 

attains the age of eighteen (18) years or 

otherwise becomes emancipated, whichever 

event first occurs, the foregoing sum shall 

be reduced by [$300] per month. In the 

event of the Wife's remarriage, death or the 

Husband's death, said sum shall be reduced 

in the amount of [$700] per month. 

 * * * * * * * 

e. The Husband shall maintain at least 

[$30,000] worth of unencumbered life 

insurance insuring his life, naming the Wife 

and the children as beneficiaries 

thereunder. 

 In April 1999, the wife filed a motion for rule to show 

cause against the husband because he had failed to furnish proof 

of life insurance coverage. The husband responded, in part, 

that the intent of the agreement was to provide financial 

support for the minor children, that the children were then 

thirty-four and thirty-five years old, respectively, and that he 

could not now purchase life insurance because of his age. 

Neither party testified at trial. Other evidence proved the 

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husband had a life insurance policy until six years after his 

retirement. In 1992, he waived further coverage, terminating 

the policy. 

 In pertinent part, the trial judge found as follows: 

Paragraph 12(b) of the . . . Property 

Settlement Agreement contemplates the 

continuation of spousal support after the 

[husband's] death. The Property Settlement 

Agreement provides for life insurance under 

the section entitled Custody, Alimony, 

Support and Maintenance. The obvious intent 

of the parties in including the policy in 

the Property Settlement Agreement was to 

enable the [wife] to maintain herself after 

the death of her former husband. 

 Therefore, even under the 1976 language 

of Section 20-109.1, the Court can enforce 

paragraph 12(e) of the Property Settlement 

Agreement requiring the [husband] to 

maintain the life insurance policy. . . . 

[H]ere, the parties specifically 

contemplated extending the [husband's] 

support obligation past his death, and 

incorporated that contemplation in a valid 

final decree of divorce. The court may now 

enforce that obligation in a contempt 

proceeding, as the court may enforce any 

other valid provision of a Final Decree of 

Divorce. 

The judge ordered the husband, at his option, either to purchase 

a life insurance policy consistent with the agreement or post a 

bond in the amount of $30,000 to ensure performance of the 

obligation. The judge also awarded attorney fees to the wife. 

II. 

 The husband contends the trial judge lacked authority to 

enforce the life insurance provision because that provision 

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conflicted with the law in force in 1976. The agreement 

specifically provided that "the law of Virginia as it presently 

exists" would govern. He argues that the life insurance 

provision does not concern the maintenance of the wife or the 

minor children and that, therefore, the trial judge lacked 

jurisdiction to incorporate it in 1976 or to enforce it in this 

proceeding. 

 In 1976, Code § 20-109.1 provided as follows: 

Any court may affirm, ratify and incorporate 

in its decree dissolving a marriage or 

decree of divorce . . . any valid agreement 

between the parties, or provisions thereof, 

concerning the conditions of the maintenance 

of the parties, or either of them and the 

care, custody and maintenance of their minor 

children. Where the court affirms, ratifies 

and incorporates 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. 

 The husband directs us to no cases in Virginia or elsewhere 

that define the term "maintenance." Rather, he cites the 

language in the current statute, allowing trial judges to 

incorporate by reference into a decree an agreement containing 

any "condition or consideration, monetary or nonmonetary," Code 

§ 20-109.1, as proof that the legislature intended to enlarge 

the scope of the statute to include conditions such as 

maintaining life insurance. He asserts that, by implication, 

the scope of the statute in 1976 was not so broad. 

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 We find unpersuasive the husband's reasoning. The term 

"maintenance" as used in the statute is much broader than the 

provision of food, clothing, and shelter; it includes a broad 

range of benefits and other conveniences. To rule otherwise is 

to give "an unduly narrow construction of Code § 20-109.1." 

Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 866 (1975). 

Indeed, in Morris, the Supreme Court ruled that a husband's 

obligation in a property settlement "agree[ment] to maintain a 

$10,000 life insurance policy on his life for the benefit of 

each child" was a provision "reasonably relate[d] to the care 

and maintenance of the children." Id. at 459-60, 219 S.E.2d at 

867. 

 Moreover, as the wife aptly notes, the life insurance 

provision is contained in a section of the agreement entitled, 

"Custody, Alimony, Support and Maintenance." It required the 

husband to name as beneficiaries the wife and the children. The 

life insurance policy was one of several benefits which the 

husband specifically agreed in this section to provide them. 

The parties agreed upon the insurance provision without any time 

limitation, requiring only that the proceeds of the insurance 

policy were to be paid upon the death of the husband. The 

husband's agreement to maintain this life insurance policy was 

not inconsistent with the policy and requirements of the statute 

as it existed in 1976. It was an obligation "reasonably 

relate[d]" to the maintenance of the wife and the children and 

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not unlike "similar provisions [that] have been held to be 

incorporated without question into decrees in other divorce 

proceedings." Id. at 460, 219 S.E.2d at 867. 

 The trial judge noted that provision 12(b) of the agreement 

"contemplates the continuation of spousal support after the 

[husband's] death." To decide this case, we need not address 

the parties' intent in providing in section 12(b) of the 

agreement that "[i]n the event of . . . the Husband's death" the 

unitary support "shall be reduced in the amount of [$700] per 

month." Regardless of the parties' intent in this provision, 

the husband expressly and unconditionally agreed to maintain the 

life insurance policy for the benefit of the wife and his 

children. The proceeds were to be paid on his death. Thus, we 

hold that the insurance provision fulfills the "conditions of 

the maintenance" standard of Code § 20-109.1 and is a valid, 

enforceable part of the agreement. 

III. 

 The husband also argues that Code § 20-107 as it existed in 

1976 precluded the trial judge's finding because it forbade 

courts from decreeing the payment of support and maintenance 

after the death of the payor. In pertinent part, this statute 

provided that "the court shall have no authority to decree 

support of children or support and maintenance of the spouse to 

continue after the death of the person ordered to pay such 

support and maintenance." Id.

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 The trial judge's order did not require the husband to pay 

spousal support after his death. The trial judge merely ordered 

the husband to honor his obligation to maintain the life 

insurance policy during his life. In this regard, this case is 

similar to Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974), 

where the trial judge "approved, ratified, and confirmed [in the 

final divorce decree] the [parties' property settlement] 

agreement and ordered the parties to fully comply with its terms 

and conditions." Id. at 652, 203 S.E.2d at 124. The Supreme 

Court recognized the validity and enforceability of the 

agreement, which, among its provisions, "require[d] the husband 

to pay for and maintain certain life insurance policies on his 

life until the youngest child becomes 23 and to name a trust for 

the benefit of the children as beneficiary of these policies." 

Id. at 653-54, 203 S.E.2d at 125. 

 A payment from an insurance company, a third party, upon 

the death of the husband is not a support payment from the 

estate of the husband. Furthermore, as earlier noted, this was 

a valid court-approved agreement between the parties that was 

consistent with the public policy favoring voluntary resolution 

of disputes concerning maintenance and support. See Morris, 216 

Va. at 459, 219 S.E.2d at 867. See also Cutshaw v. Cutshaw, 220 

Va. 638, 641, 261 S.E.2d 52, 54 (1979) (holding that the 

jurisdiction of the divorce court with regard to support and 

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maintenance is statutorily determined "unless otherwise provided 

by agreement incorporated into the divorce decree"). 

 Accordingly, we hold that the trial judge properly required 

the husband to comply with the terms of the agreement. Nothing 

in Code § 20-107 as it existed in 1976 precluded the 

incorporation of the agreement or the enforcement of its 

provisions. 

IV. 

 The husband next contends that the wife's motion to show 

cause must fail because it referenced only the April 26, 1976 

decree of divorce, which preceded the signing of the agreement 

on July 8, 1976. We find no merit in this argument. The 

divorce decree reserved for future determination the issues of 

support and maintenance. Those issues were settled by the 

parties' agreement, which was "approved, ratified, affirmed and 

incorporated" as the court's decree by order dated July 9, 1976. 

See Rogers v. Damron, 23 Va. App. 708, 713, 479 S.E.2d 540, 542 

(1997) (holding that the trial judge had the "power to 

incorporate a settlement agreement in a decree following the 

entry of a decree of divorce"). 

 Although the husband did not raise this issue in his 

initial response to the wife's motion, he did mention it in a 

memorandum requesting that the trial judge dismiss the motion. 

At trial, both parties proceeded on the basis that the judge was 

enforcing the July 9, 1976 order, which incorporated the 

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property settlement agreement. Moreover, the trial judge 

explicitly mentioned both the July 8, 1976 agreement and the 

July 9, 1976 order in his final order of December 2, 1999. 

These circumstances establish that the parties and the trial 

judge clearly were aware throughout the proceedings that the 

July 9, 1976 order was the one at issue. Accordingly, we hold 

that the trial judge did not err in refusing to dismiss the show 

cause motion. 

V. 

 The husband contends the trial judge should not have 

adjudicated this case without joining the adult children as 

necessary parties. He argues that the wife did not allege she 

was acting in the interests of the children and that no argument 

was heard concerning the allotment of the $30,000 between the 

wife and the children. 

 Code § 8.01-5 provides that no suit shall abate or be 

defeated by nonjoinder of parties and that the trial judge by 

order may add parties to promote the ends of justice. The 

husband makes no convincing argument that the children were 

necessary to this suit. The life insurance provision stated 

that the wife and the children should be named the beneficiaries 

of the policy. The wife was the signatory to the agreement that 

she was seeking to enforce. Clearly, as a direct beneficiary of 

the agreement and a party to the agreement, the wife had the 

power to enforce the provisions of the agreement. 

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 Furthermore, although the children are listed in the 

agreement as beneficiaries of the life insurance, no reason 

exists why the trial judge could not adjudicate this matter 

without the children. The husband raises the possibility that 

the children will contest the amount of money they should 

receive under the insurance policy. The final order in this 

case, however, merely requires the husband to comply with the 

agreement which he signed or post a bond to ensure his 

compliance with that agreement. It does not require the husband 

or the judge to apportion money between the children and the 

wife. Accordingly, we hold that the trial judge did not err in 

denying the husband's request to join the children as parties. 

VI. 

 The husband further contends the trial judge should not 

have ordered him to pay attorney's fees. The husband argues 

that the judge took the arguments under advisement several times 

and stated that the husband had raised a number of close issues. 

Furthermore, the judge acknowledged that, because of the 

husband's advanced age, it would be almost impossible for him to 

acquire life insurance. The husband also argues the trial judge 

did not specifically find him in contempt of court. He, 

therefore, contends the award of attorney's fees was erroneous. 

 Judges presiding over contempt proceedings in divorce suits 

have the discretion to award counsel fees. Carswell v. 

Masterson, 224 Va. 329, 332, 295 S.E.2d 899, 901 (1982). The 

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trial judge's failure to use the word "contempt" in his order 

does not alter the effect of his ruling. As in Carswell, the 

wife had to resort to legal proceedings to secure compliance 

with a valid court order. In awarding legal fees, the trial 

judge found that the husband failed to perform a legal duty. 

Furthermore, simply because the trial judge ordered the husband 

to comply with the life insurance provision, the alleged 

impossibility of securing such a policy does not provide a basis 

for establishing an abuse of discretion by the trial judge in 

awarding attorney's fees. The husband's reliance on Wilson v. 

Collins, 27 Va. App. 411, 499 S.E.2d 560 (1998), does not aid 

his argument because in that case we held that the trial judge 

had incorrectly found a party in contempt and therefore could 

not order that party to pay attorney's fees. 

 Here, the trial judge's final ruling on the wife's motion 

was appropriate. No evidence proves the judge abused his 

discretion in awarding fees. Accordingly, we hold that the 

trial judge did not err. 

 For these reasons, we affirm the trial judge's order. 

 Affirmed.

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