                               COURT OF APPEALS OF VIRGINIA


Present: Judges Haley, Petty and Powell
Argued at Salem, Virginia


JAMES ALLAN MYERS
                                                              MEMORANDUM OPINION ∗ BY
v.     Record No. 1509-10-3                                   JUDGE JAMES W. HALEY, JR.
                                                                    MARCH 8, 2011
SHELBY LYNNE SMITH MYERS


                     FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                                 Victor V. Ludwig, Judge

                 Frankie C. Coyner (Law Offices of Frankie C. Coyner, on brief), for
                 appellant.

                 Nancy A. Frank (Nancy A. Frank, P.C., on brief), for appellee.


                                        I. INTRODUCTION

       James Allan Myers (husband) appeals a decision of the trial court granting his former

spouse, Shelby Lynne Smith Myers (wife), a share in two retirement plans. 1 Husband argues a

property settlement agreement (PSA) granted wife a share in only one of the plans. We affirm.

                                        II. BACKGROUND

       Given our resolution of this case, the relevant facts may be succinctly stated.

       Husband and wife separated on July 3, 2008. They entered into a PSA on July 25, 2008,

that was prepared by husband’s counsel. The PSA contained a provision concerning the division




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         The parties’ names are misspelled in the briefs filed with this Court. However,
reference to documents filed with the trial court, including the parties’ actual signatures,
confirms the correct spelling. We use only the correct spelling in this opinion.
of husband’s retirement benefits obtained as a result of his employment with Merck. This

paragraph stated:

                       SECTION 7, RETIREMENT PLANS: WIFE shall be
               entitled to fifty percent (50%) of the value of HUSBAND’s
               retirement plan at Merck for the period starting on the date of
               HUSBAND’s employment with Merck and ending on July 3,
               2008, the date the parties ceased to cohabit. HUSBAND and
               WIFE each waive any claims they may otherwise have against any
               other retirement plans or benefits available to the other. Each party
               agrees to execute any documents that may be required by any plan
               or benefit administration to carry out the provisions of the
               paragraph.

       Husband had acquired an interest in two retirement plans from his employment. One

represented a plan for hourly employees paid for by the company. A second plan known as the

Merck Employee Stock Purchase and Savings Plan consisted of contributions from husband.

       On September 3, 2009, husband objected to a proposed qualified domestic relations order

from wife that would have divided husband’s interest in the Stock Purchase and Savings Plan.

Husband maintained that under the agreement wife should receive only a share of the hourly

employees plan, without any share in the Stock Purchase and Savings Plan.

       In a May 21, 2010 letter opinion, the trial court held wife should receive a share in both

plans in accordance with the unambiguous provisions of the PSA. The court based its holding on

Hale v. Hale, 42 Va. App. 27, 590 S.E.2d 66 (2003), writing: “If the language in Hale was not

ambiguous . . . this Court cannot find the language in this case to be ambiguous.”

                                        III. ANALYSIS

       Husband maintains that because the agreement provided wife an interest in only his

“retirement plan,” she should only receive a share of the hourly employees plan. For the

following reasons, we disagree.

       We consider the parties’ property settlement agreement under the same rules applicable

to contracts. Bailey v. Bailey, 54 Va. App. 209, 215, 677 S.E.2d 56, 59 (2009). Contract

                                               -2-
interpretation is a matter of law receiving de novo review in this Court. Fry v. Schwarting, 4

Va. App. 173, 180, 355 S.E.2d 342, 346 (1987).

       It is “the intent of the parties as expressed in the contract [that] controls.” Gayler v.

Gayler, 20 Va. App. 83, 86, 455 S.E.2d 278, 280 (1995). Where a contract is unambiguous,

courts must give effect to the words used. Stacy v. Stacy, 53 Va. App. 38, 44, 669 S.E.2d 348,

351 (2008) (en banc). We “‘are bound to say that the parties intended what the written

instrument plainly declares.’” Irwin v. Irwin, 47 Va. App. 287, 293, 623 S.E.2d 438, 441 (2005)

(quoting Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984)).

       We agree with the trial court that Hale controls the interpretation of the agreement in this

case. 2 The property settlement agreement in Hale provided the husband had “a vested pension

plan with his employer” and that the wife would receive half “of said pension plan provided to

him through his employer.” 42 Va. App. at 32, 590 S.E.2d at 68. Like this case, the husband

argued the “pension plan with his employer” referred only to an employer-provided pension

plan, not to a plan where the employee contributes, which the husband also possessed. Id. at 30,

590 S.E.2d at 67. The wife maintained the language covered both plans. Id. This Court agreed

with the wife, holding the “plan” included “the sum of all individual plans husband’s employer

provided” since “both were a part of husband’s total retirement plan.” Id. at 32, 590 S.E.2d at

68. In doing so, the Court found important that the agreement showed “the parties intended to

settle . . . all pension plans owned by either party.” Id. at 33, 590 S.E.2d at 68. The Court also

noted the wife would have an equitable distribution claim for half of all pension benefits

obtained during the marriage. Id. Similarly, it could be said in this case that husband’s

“retirement plan” covered both the hourly employees plan and the Stock Purchase and Savings


       2
         In Hale, the parties stipulated the agreement was unambiguous and the Court
specifically declined to question this stipulation. 42 Va. App. at 31 n.1, 590 S.E.2d at 67 n.1.
The parties here have also agreed that the agreement is unambiguous.

                                                -3-
Plan. By including a waiver of all unmentioned retirement assets, the agreement plainly

demonstrates a desire to settle all retirement issues, as in Hale. 3 Finally, by providing wife a

fifty percent share of retirement assets from the beginning of husband’s employment with Merck

until the separation, it is clear that all the retirement funds were obtained during the marriage,

giving wife a potential right to fifty percent of such funds. See Code § 20-107.3(A)(2).

       Finally, we note that wife seeks attorney fees under the agreement. The agreement stated

that if judicial “proceedings are instituted for the nonperformance of any covenant, promise or

agreement herein contained, the defaulting party shall be responsible for” attorney fees. These

proceedings were not initiated by wife for husband’s breach, but rather by husband to determine

his obligations. See Stroud v. Stroud, 54 Va. App. 231, 677 S.E.2d 629 (2009). Therefore, the

contractual provision does not apply and we deny wife’s request.

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                                                                           Affirmed.




       3
         Husband distinguishes this case from Hale by arguing that here wife expressly waived
any interest in unmentioned plans, whereas in Hale no such waiver was present. However, both
the plans here came as a result of husband’s employment “at Merck,” as stated in the agreement.
Moreover, as noted above, the waiver indicates a desire to settle all assets obtained “at Merck.”

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