Flanary v. Milton

Present: 	All the Justices
LINDA FLANARY
v. 	Record No. 010220 	OPINION BY JUSTICE ELIZABETH B. LACY
January 11, 2002
DOSS JACKSON MILTON, JR.
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Donald A. McGlothlin, Jr., Judge
In this appeal, we determine whether an oral property
settlement agreement between spouses made during a deposition
taken in furtherance of an action for divorce is valid.
Linda and Ross E. Flanary married on February 5, 1982 and
separated on July 7, 1995. 	Mrs. Flanary filed for divorce on
the grounds of desertion and/or cruelty and Mr. Flanary filed a
cross-bill seeking a divorce based upon desertion. 	On April 17,
1997, during Mrs. Flanary's deposition taken in conjunction with
the divorce proceedings, an oral agreement between the parties
was recited into the record by the parties' attorneys. 	The
agreement provided that Mrs. Flanary, in exchange for a lump sum
payment of $45,000, would release "any interest in any assets []
in [Mr. Flanary's] possession and/or name and in further release
of any interest or any rights she has to any additional or
future spousal support." 	Mrs. Flanary agreed to this
arrangement and agreed that it would serve as "a full and final
settlement of all rights accrued by virtue of this marriage."

Mr. Flanary died the day after the deposition. 	The divorce
proceeding was subsequently dismissed.
Mrs. Flanary filed a petition of surviving spouse, pursuant
to Code § 64.1-151.1, for determination of the appropriate
family allowance, exempt property, and an elective share of the
augmented estate. 	Mr. Doss Jackson Milton, Jr., as executor of
Mr. Flanary's estate (the Executor), filed a responsive pleading
asserting that Mrs. Flanary was estopped from pursuing these
claims because she contracted away all her marital interests in
Mr. Flanary's estate in the oral agreement made during her
deposition. 	Following briefing and oral argument of counsel,
the trial court concluded that the oral agreement was valid and
effectively released "not only any marital rights [Mrs. Flanary]
may have had as to equitable distribution, spousal support or
property, but also any inchoate right to inherit from or
otherwise participate in the distribution of the estate of Mr.
Flanary." 	The trial court entered a final decree dismissing
Mrs. Flanary's petition. 	We awarded Mrs. Flanary an appeal.
The dispositive issue in this appeal is whether the oral
agreement made in conjunction with the divorce proceeding is
valid. 	The General Assembly has identified agreements between
spouses involving rights and obligations arising from the
marital relationship as a unique category of agreements subject
to specific requirements. 	Code § 20-155 provides that:
2

Married persons may enter into agreements with each
other for the purpose of settling the rights and
obligations of either or both of them, to the same
extent, with the same effect, and subject to the same
conditions, as provided in §§ 20-147 through 20-154
for agreements between prospective spouses, except
that such marital agreements shall become effective
immediately upon their execution. 	However, a
reconciliation of the parties after the signing of a
separation or property settlement agreement shall
abrogate such agreement unless otherwise expressly set
forth in the agreement.
Code § 20-150 identifies the various subjects that such
agreements may properly address, including the parties' rights
regarding spousal support and disposition of property upon
separation or divorce. 	The agreement at issue purported to
settle, among other things, spousal support and property rights.
However, the agreement was not in writing, nor was it signed by
the parties as required by Code § 20-149.
The Executor, relying on Richardson v. Richardson, 10 Va.
App. 391, 392 S.E.2d 688 (1990), asserts that Code § 20-155 does
not apply to the agreement at issue. 	The Court of Appeals in
Richardson held that "compromises and settlement agreements to
pending litigation which incidentally include issues of property
and spousal support" are not within the purview of Code § 20-155
and, thus, do not need to comply with the requirement that such
agreements be in writing. 	Id. at 398, 392 S.E.2d at 691. 	We
disagree.
3

Statutes must be read according to their plain meaning,
giving effect to the language that the legislature chose to use.
Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985);
Bott v. Hampton Roads San. Dist. Com., 190 Va. 775, 783, 58
S.E.2d 306, 309 (1950). 	Code § 20-155 by its terms applies to
agreements between spouses affecting the "rights and
obligations" arising from the marital relationship. 	While
agreements made in contemplation of settling litigation can be
enforced even though not reduced to writing, see, e.g., Snyder-
Falkinham v. Stockburger, 249 Va. 376, 457 S.E.2d 36 (1995),
nothing in the language of Code § 20-155 exempts from its
application a property or spousal support agreement made in
contemplation of resolving a pending divorce action. 	Nor can
such an exemption be read into the statute. 	Courts are not
allowed to write new words into a statute plain on its face.
Porter v. Virginia Electric & Power Co., 183 Va. 108, 113, 31
S.E.2d 337, 339 (1944).
Additionally, collateral statutes within the Premarital
Agreement Act clearly contemplate marital agreements entered
into for the purpose of resolving a pending divorce action. 	The
language of Code § 20-150(3) specifically includes agreements
made regarding the disposition of property upon "marital
dissolution" within its provisions. 	Furthermore, the 1998
amendment to Code § 20-155 anticipates agreements made during
4

proceedings for dissolution of a marriage, by providing that a
signed separation or property settlement agreement is abrogated
if the parties reconcile unless otherwise specifically provided
in the agreement. 	For these reasons, we reject the Executor's
arguments and the rationale and holding of Richardson upon which
he relies.
We hold that Mrs. Flanary's oral agreement made in
conjunction with the divorce proceedings was subject to the
provisions of Code § 20-155. 	The agreement was not in writing
and not signed by the parties, as required by statute.
Therefore, the trial court erred in finding the agreement to be
valid and in dismissing Mrs. Flanary's petition as surviving
spouse for determination of family allowance, exempt property,
and an elective share of Mr. Flanary's augmented estate.
Accordingly, we will reverse the judgment of the trial court and
remand the case for further proceedings.
Reversed and remanded.
5