ANALYSIS OF AUGUST 30, 2016 CAV OPINION
[Posted August 30, 2016] I’ve never been an appellate jurist, but I know enough of them to realize that their lot in life is mixed. They have a lot of advantages. For example, they get a generous supply of law clerks. They have the ability to make decisions after due reflection instead of on an instantaneous basis. Perhaps most important, they don’t have to listen to lawyers squabbling over discovery objections on motion days.
But there are disadvantages. The one I hear about most is the loneliness, since they don’t share chambers with the other judges, who are widely dispersed across the state. On most days, you interact with those law clerks, a secretary, and nobody else. One appellate jurist told me years ago, “You get to the point where you look forward to the mailman’s arrival.”
Here’s one on the dark side of the ledger: the necessity to make sense of confusing draftsmanship. A couple of lawyers put their heads together and draft a document that’s supposed to be clear but is anything but, and it falls to the courts to make sense of it. That’s what happens today in Allen v. Allen, a domestic-relations appeal from Alexandria.
Husband and Wife married in 1980 and lived in what must have been gradually deteriorating bliss for 32 years before Wife filed for divorce in late 2012. During the pendency of that case, they evidently kissed and made up, resulting in a nonsuit of the divorce proceeding. They even signed a postnuptial agreement in April 2014, and one paragraph in particular of that document promised a happy, extended denouement to the marriage:
CONTINUATION OF MARRIAGE. Husband shall not pursue a dissolution of the marriage for a period of 20 years or obtain any judicial order or decree that results in wife’s disqualification of health insurance coverage by Caterpillar [Inc.] or any of its subsidiaries, prior to the 20 year period from the date of this agreement. If the husband takes any actions that result in the wife being disqualified from said health insurance coverage, he shall indemnify and hold the wife harmless for any expenses from medical treatment that would have otherwise been covered by said health insurance, provided however, husband’s obligation shall cease in the event the health insurance coverage is no longer available through Caterpillar or any of its subsidiaries through no fault of husband or 20 years from the date of this agreement; whichever first occurs.
This was presumably intended to cement the “until death do us part” clause in their marriage vows; the 20-year guarantee would expire 54½ years after they first got married.
Alas; no dice. Husband filed for divorce just seven months after the ink dried on the postnup. Wife filed a plea in bar in which she specifically raised the paragraph quoted above: Husband had expressly agreed not to seek a divorce for twenty years, and this was more like thirty weeks. Husband replied that the language wasn’t an absolute bar to a divorce action; it merely provided Wife with a remedy, in the form of indemnification for medical expenses, in the event he did try to get unhitched. He added that an agreement to bar divorce proceedings was against Virginia public policy.
The trial court agreed with Husband, overruling the plea without comment or explanation. Wife appealed, and today a panel of the Court of Appeals affirms.
That ruling might puzzle you, considering how the quoted paragraph begins: “Husband shall not pursue a dissolution of the marriage for a period of 20 years …” But courts are supposed to interpret the whole document, not just a part of it. That’s the route that Judge Alston, writing for today’s panel, takes to conclude that the paragraph constitutes not an absolute bar to divorce but a provision to protect Wife’s medical coverage. That’s consistent with other provisions in the agreement that specify what happens in the event of a divorce. Accordingly, Husband can indeed get a divorce, but he’s now fully liable for Wife’s medical expenses.
The court does reject Husband’s public-policy argument, finding that Virginia’s public policy favors marriage, and concomitantly favors the continuation of marriage. There’s no public-policy interest in furthering divorce.
As I see it, this issue arose because someone violated a writing rule that I learned some time ago. Jim McElhaney, one of the greatest teachers of lawyers of this age, advised, “Short sentences are better. One of the easiest ways to write short sentences is to give each sentence just one job.” The first sentence of the quoted paragraph contains 50 words and tries to do two jobs.