| XXX: IN THE CIRCUIT COURT OF xxx COUNTY |
| XXX, Plaintiff vs. INGE XXXX Defendant | CASE NO. |
MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT THERETO
TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD, Plaintiff ,XXXX represented by XXXXXXXXXX, hereby moves for Summary Judgment against Defendant INGE THEODORA ANDERSON pursuant to Va. R. Sup. Ct. XXX. This Motion is based upon the Complaint, the Memorandum below, and any accompanying declarations and exhibits.
PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Defendant breached the Marital Agreement (hereinafter the “Agreement”) entered between Plaintiff and Defendant. The said Agreement contained terms that waived all causes of action and required all parties to hold each other harmless from liability.
PARTIES
Plaintiff XXX is a member of the Armed Forces of the United States, serving on active duty with the United States Air Force. Plaintiff’s current residence is [ENTER ADDRESS].
Defendant INGE XXXX is not currently a member of the Armed Forces of the United States serving on active duty. Defendant’s current residence is [ENTER ADDRESS].
FACTUAL BACKGROUND
Plaintiff and Defendant (hereinafter “Parties”) were married on XXX.
Parties were separated on or about ZZZZ.
Parties executed a Marital Agreement on or about XXXX, whereby the Parties settled and determined all questions of property and support and other rights existing between them as a result of their matrimonial relation.
On or about XXX, the Agreement was affirmed, ratified, and incorporated into the Order of the Court.
Parties got divorced on or about XXXX and a Divorce Order was entered on the self-same date by this honorable court.
On or about XXX, Defendant sued Plaintiff in the United States District Court for the Western District of Washington. On or about XXX, Defendant filed an amended Complaint at the self-same Court.
Court dismissed Plaintiff’s res judicata defense and Defendant eventually won part of the case.
SUMMARY JUDGMENT STANDARD
The applicable legal standard dictates that a trial court may enter summary judgment when no material fact genuinely is in dispute respecting a particular issue. The court must “adopt those inferences from the facts that are most favorable to the non-moving party”, unless to do so would be strained, forced or contrary to reason. Carson v. LeBlanc, 245 Va. 145, 139-40, 472 S.E.2d 189, 192 (1993). See also, Dickerson v. Fatehi, 253 Va. 324, 327, 484 S.E.2d 880, 882 (1997) (citing Carson v. LeBlanc, 245 Va. 135, 139-40, 427 S.E.2d 189, 192 (1993)).
DISCUSSION
- DEFENDANT BREACHED THE MARITAL AGREEMENT BY INSTITUTING ACTIONS AGAINST PLAINTIFF CONTRARY TO SAID AGREEMENT
This honorable court should determine that Defendant breached the terms of the Marital Agreement entered between the Parties on or about August 25, 2015, whereby the Parties settled and determined all questions of property and support and other rights existing between them as a result of their matrimonial relation.
“[t]he elements of a breach of contract action are (1) a legally enforceable obligation of a defendant to a plaintiff; (2) the defendant’s violation or breach of that obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation.” Filak v. George, 267 Va. 612, 619 (2004). In the instant case, the existence of the contract is not in issue. The issue before this honorable court is the breach of the contract thereof and the injury experienced by Plaintiff consequential to the said breach. Accordingly, Plaintiff avers that Defendant breached the Agreement in the following manner:
- “WAIVER OF CAUSES OF ACTION” (Section 21 of the Marital Agreement) and “HOLD HARMLESS FROM LIABILITY” (Section 27 of the Marital Agreement).
In Virginia, “waiver is an intentional relinquishment of a known right.” Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 74 (1983). To establish waiver, two elements must be proven: “knowledge of the facts basic to the exercise of the right and the intent to relinquish that right.” Emp’rs Commercial Union Ins. Co. of Am. v. Great Am. Ins. Co., 214 Va. 410, 412-13 (1973); accord Horton v. Horton, 254 Va. 111, 117 (1997); Stanley’s Cafeteria, 226 Va. at 74. This is not to say that a party cannot waive the unknown. Virginia law allows a party to enter into a general release of claims.
In the instant case, Defendant breached the said provisions by filing Defendant’s initial complaint (EXHIBIT 1) and amended complaint (EXHIBIT 2) both of which claim damages prior to the Marital Agreement being signed. Notably, the Agreement was entered on or about August 25, 2015 and the two Complaints were filed on or about June 9, 2017, and August 7, 2018, respectively. In the Complaints Defendant sued Plaintiff for I-864 support from day 1 of the Parties’ marriage. Additionally, the Defendant alleged emotional abuse which was also claimed during the Parties’ marriage and prior to signing the Agreement. These allegations contradict the said Section 21 of the Marital Agreement which provides that Defendant waived all causes of action against Plaintiff.
Pertaining the I-864 claim, Defendant brought it to Court knowing that the claim was already settled. Notably, Defendant had already waived her right to bring a suit under the I-864. Per the Federal Register, “if the sponsored immigrant is an adult, he or she probably can, in a divorce settlement, surrender his or her right to sue the sponsor to enforce an affidavit of support.” Federal Register / Vol. 71, No. 119 / Wednesday, June 21, 2006 / Rules and Regulations., page 35740. (Emphasis added). Defendant’s counsel, who was handling her I-864, offered their services right up to the day of signing the Marital Agreement. This clearly shows that Defendant had intent to enter the Marital Agreement and be bound by the provisions thereof.
Pertaining the allegations of emotional abuse, Defendant was supposed to bring this action during the divorce action, case number CL2016-690. Virginia recognizes fault as a factor in divorce cases. See Va. Code § 20-91(6) (grounds for divorce from bond of matrimony). The said provision states that, “Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act.” Accordingly, Defendant had a duty to unite every joinable claim that she had against Plaintiff in her initial divorce action. See Miller v. Smith, 109 Va. 651, 655, 64 S.E. 956, 957 (1909).
“[w]aiver, as a doctrine of law, is voluntary action or inaction with intent to surrender a right in esse with knowledge of the facts and circumstances that gave birth to the right…. In waiver, both knowledge of the facts basic to the exercise and the intent to relinquish that right are essential elements. Employers Ins. Co. v. Great American, 214 Va. 410, 413 (1973). It follows; Defendant was fully aware of the facts and circumstances that led her to approve the waiver provision in the Agreement. Notably, she was benefitting from legal representation from which she successfully claimed Attorney’s fees. Therefore, Defendant was fully bound by the waiver provision.
- PLAINTIFF IS ENTITLED TO REIMBURSEMENT FOR LOSS SUSTAINED FROM DEFENDANT’S CONDUCT
Plaintiff prays this Court orders Defendant to reimburse Plaintiff for the expense incurred following Defendant’s conduct. Consequential and incidental to Defendant’s conduct, Plaintiff realized costs, to wit, legal fees, time spent in the case, airline tickets, lodging and food for being in Seattle for 10 days. Accordingly, Plaintiff prays for a reimbursement of the said costs.
“As a general rule, damages for breach of contracts are limited to the pecuniary loss sustained.” Dunn Constr. Co., Inc. v. Cloney, 278 Va. 260, 266, 682 S.E. 2d 943, 946 (2009) (quoting Kamlar Corp. v. Haley, 224 Va. 699, 705, 299 S.E.2d 514, 517 (1983)). “The prevailing party is responsible for proving its damages with reasonable certainty, but there is no requirement that damages be calculated with absolute “mathematical certainty.” See Nichols Constr. Corp. v. Va. Mach. Tool Co., LLC, 276 Va. 81, 89, 661 S.E. 2d 467, 472 (2008).
Determining the amount of a reasonable attorney fee lies within the sound discretion of the court.” Elstner v. Golden, 56 Va. Cir. 378, 380 (Spotsylvania County Cir. Ct. 2001); see Schwab v. Norris, 217 Va. 582, 231 S. E. 2d 222 (1977); Richardson v. Breeding, 167 Va. 30, 33-34, 186 S.E. 454 (1936).
CONCLUSION
For the foregoing reasons and reasons set forth herein, Plaintiff prays that this Honorable Court grants Plaintiff’s Motion for Summary Judgment and awards Plaintiff damages for Defendant’s conduct.
Respectfully submitted this [ENTER DATE]
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], copies of the foregoing Motion have been sent to the Defendant in the following address:
[ENTER ADDRESS FOR DEFENDANT].
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