                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Clements


ELAINE MAY HOPKINSON
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0013-09-4                                   JUDGE WILLIAM G. PETTY
                                                                 NOVEMBER 10, 2009
COLIN GARY HOPKINSON


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                 Jane Marum Roush, Judge

                 (Anita Van McFadden; McFadden Law Office, PLLC, on brief), for
                 appellant. Appellant submitting on brief.

                 (Colin G. Hopkinson, pro se, on brief). Appellee submitting on
                 brief.


       Elaine Hopkinson (wife) appeals the final decree of divorce which incorporated the

parties’ marital separation and property settlement agreement (“PSA”). On appeal, wife

contends that the trial court erred by (1) superceding the parties’ provision in the PSA regarding

Colin Hopkinson’s (husband) duty to provide health insurance for wife, (2) awarding five

thousand dollars in attorney’s fees to husband when the parties’ agreement contains no provision

allowing such award, and (3) denying wife’s amended motion for contempt which included her

request for attorney’s fees incurred in compelling husband to comply with the trial court

discovery order. For the following reasons, we conclude that the trial court erred by modifying

the PSA provision relating to husband’s health insurance obligation and by awarding husband

five thousand dollars in attorney’s fees. We further conclude that the trial court did not err by




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
denying wife’s amended motion for contempt including her request for attorney’s fees.

Therefore, we reverse in part, and affirm in part.

       Husband raised three additional questions presented 1 and did not respond to the three

issues raised by wife. He argues that the trial court erred by (1) failing to order wife to pay all of

his attorney’s fees, (2) hearing wife’s motion in limine, and (3) failing to limit his obligation to

provide health insurance to eighteen months. However, in husband’s brief, he failed to state any

principles of law, make any legal arguments, or cite to any authority as to these additional

questions presented. Thus, husband has violated the provisions of Rule 5A:21(d), which requires

that “the brief of the appellee shall contain . . . [t]he principles of law, the argument, and the

authorities relating to each question presented.” This Court has repeatedly held that “‘statements

unsupported by argument, authority, or citations to the record do not merit appellate

consideration.’” Epps v. Commonwealth, 47 Va. App. 687, 718, 626 S.E.2d 912, 926 (2006)

(en banc) (quoting Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992)).

We find that husband’s failure to comply with Rule 5A:21(d) is significant because he has

provided no legal authority upon which we can decide these issues. Jay v. Commonwealth, 275



       1
         Because the issues raised by husband’s questions presented are different from those
raised by wife’s questions, we consider them “additional questions” as permitted under Rule
5A:21(b). The appellee is permitted to raise additional questions presented according to Rule
5A:21(b) & (e). That rule provides that the brief of appellee shall contain:

                   (b) [A] statement of any additional questions the appellee
               wishes to present with a clear and exact reference to the page(s) of
               the transcript, written statement, record, or appendix where each
               additional question was preserved in the trial court.

Further, Rule 5A:21(e) provides that “[t]he brief of appellee shall contain . . . [a] statement of the
precise relief sought, if any.” “The two rules considered together clearly provide that additional
questions separate from those presented by the appellant, and any additional relief sought
separate from that requested by the appellant, may be raised by the appellee in his brief.”
D’Auria v. D’Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167 (1986).

                                                 -2-
Va. 510, 520, 659 S.E.2d 311, 317 (2008). Because husband waived these issues, we will not

consider them on appeal.

       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite only those facts and incidents of

the proceedings as are necessary to the analysis.

                                           I. ANALYSIS

       On September 25, 2006, husband and wife entered into a property settlement agreement

in anticipation of a divorce. On December 1, 2008, the trial court entered a final decree of

divorce that incorporated the PSA, “superceded” the parties’ agreement on health insurance

contained in the PSA, ordered spousal and child support pursuant to the PSA, ordered wife to

pay five thousand dollars of husband’s attorney’s fees, and denied wife’s contempt motion. This

appeal followed.

       In a divorce proceeding, Code § 20-109.1 authorizes the trial court, in its discretion, to

               affirm, ratify and incorporate by reference in its decree dissolving
               a marriage or decree of divorce . . . any valid agreement between
               the parties . . . concerning the conditions of the maintenance of the
               parties, or either of them . . . or establishing or imposing any other
               condition or consideration, monetary or nonmonetary.

If a court exercises its discretion to incorporate an agreement described in Code § 20-109.1, “or

thereafter enforces the resulting decree,” White v. White, 257 Va. 139, 144, 509 S.E.2d 323, 325

(1999), Code § 20-109(C) provides that “no decree or order directing the payment of . . . counsel

fee or establishing or imposing any other condition or consideration, monetary or nonmonetary,

shall be entered except in accordance with that stipulation or contract.’” This Court has stated

that subsection (C) “restricts the judge to decreeing according ‘to the terms’ of the agreement.”

Rutledge v. Rutledge, 45 Va. App. 56, 62, 608 S.E.2d 504, 507 (2005).




                                                -3-
       Code § 20-109(C) prohibits a trial judge from “grant[ing] relief in derogation of the terms

of the parties’ agreement.” Id. Or, put in other words, it “requires the trial judge to examine the

parties’ agreement to ascertain whether the relief sought by the moving party is encompassed

within the terms of the agreement.” Id. at 63, 608 S.E.2d at 509 (citing White, 257 Va. at

144-45, 509 S.E.2d at 326). Accordingly, we have stated that the court’s function is to

               “construe the contract made by the parties, not to make a contract
               for them. The question before the court is what did the parties
               agree to as evidenced by their contract. The guiding light in the
               construction of a contract is the intention of the parties as
               expressed by them in the words they have used, and courts 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)). “The trial court’s interpretation of the PSA is an

issue of law that we review de novo.” Stacy v. Stacy, 53 Va. App. 38, 43, 669 S.E.2d 348, 350

(2008) (en banc). With these principles in mind, we review the legal issues raised by wife.

                                       A. Health Insurance

       The provisions dealing with health insurance in the PSA provided as follows:

               GENERAL: The Husband shall maintain major medical and
               hospitalization insurance for the benefit of the Wife and the minor
               child of the parties.

                          *       *       *       *       *      *       *

               TERMINATION: The insurance for the benefit of the Wife shall
               be terminated upon either the remarriage of the Wife or the
               acceptance of the Wife of coverage under another health insurance
               plan.

                          *       *       *       *       *      *       *

               The parties agree that should health insurance no longer be
               available to the Husband or should health insurance become
               available to the Wife, the parties will negotiate this portion of this
               agreement at that time. The parties agree that neither shall take


                                                -4-
                any action causing the termination of the family’s or parties’
                eligibility.

(Emphasis added).

       Both parties concede that once the divorce decree was entered, wife would no longer be

eligible for health insurance through husband’s employer. In interpreting the agreement, the trial

court concluded that husband was responsible for providing wife health care coverage only if it

was available through his employer, including post-divorce COBRA coverage 2 because the wife

was otherwise “uninsurable.” Thus, the trial court included a paragraph in the final order that

“supersedes the health insurance language in [the agreement].” That paragraph limited

husband’s responsibility to provide insurance to insurance available to him through his employer

or COBRA coverage:

                Husband is responsible for Wife’s health insurance so long as it
                available to him through his employment. This includes Cobra and
                the Husband is responsible for the cost of Cobra. Once Cobra ends
                (if health insurance for the wife is not available to the husband) the
                Husband’s responsibility ends and he has no further responsibility
                to provide insurance or the cost of insurance. That the Husband
                shall promptly cooperate with the Wife obtaining Cobra coverage
                [sic].



       2
           The United States Supreme Court has explained this coverage as follows:

                        [A]n employer who sponsors a group health plan [is
                required] to give the plan’s “qualified beneficiaries” the
                opportunity to elect “continuation coverage” . . . when the
                beneficiaries might otherwise lose coverage upon the occurrence of
                certain “qualifying events,” including . . . divorce or legal
                separation from the covered employee. Thus, a “qualified
                beneficiary” entitled to make a COBRA election may be a
                “covered employee” . . . , or a covered employee’s spouse . . . who
                was covered by the plan prior to the occurrence of the “qualifying
                event.”

Geissal v. Moore Medical Corp., 524 U.S. 74, 79-81 (1998). The maximum period of continued
coverage is 36 months, and the beneficiary is responsible for all costs of continued coverage. Id.

                                                -5-
        Stating that it was “superceding” the PSA insurance provisions, the trial court rewrote the

general provision to apply only to husband’s employer-provided health insurance and then added

a third contingency to the termination provision—that husband’s obligation ends if his

employer-provided insurance (including any COBRA extension) is no longer available to the

wife.

        Wife argues that the trial court erred by modifying the language of the PSA so that

husband’s obligation to provide her with health insurance terminated when his

employer-provided COBRA coverage ended. “In reviewing the agreement, we must gather the

intent of the parties and the meaning of the language . . . from an examination of the entire

instrument, giving full effect to the words the parties actually used.” Layne v. Henderson, 232

Va. 332, 337-38, 351 S.E.2d 18, 22 (1986).

        The plain language of the health insurance provision in the PSA begins by requiring

husband to unequivocally provide health insurance to wife. The termination paragraph, which

appears immediately after the husband’s general obligation, states that husband’s obligation will

end if one of two possible occurrences materialize: (1) wife remarries, or (2) wife accepts

coverage under another health insurance policy. Finally, the provision providing that the parties

agree to renegotiate the health insurance provision “should health insurance no longer be

available to the Husband,” neither limits the term “available” to employer-provided health

insurance nor does it authorize termination of his obligation.

        Despite this language, the court interpreted the health insurance provision in the PSA as

follows:

               I think the husband is responsible for health insurance if it’s
               available through his employer, and I think that would include any
               COBRA coverage. But I think once the COBRA coverage is up,
               that that ends the husband’s responsibilities, because it ends upon
               her remarriage or her acceptance of coverage under another health
               insurance plan. So I think it’s incumbent upon the wife to get
                                               -6-
               employment between now and then if COBRA is available. I think
               the agreement anticipates that coverage might not be available.

       Where the parties have entered into an agreement, Code § 20-109(C) limits the trial

court’s authority to enter a judgment or decree; that is, the decree must conform with the intent

of the parties as expressed in the parties’ agreement. Rutledge, 45 Va. App. at 67, 608 S.E.2d at

509. It precludes the trial court from entering a decree that is contrary to the PSA. Blackburn v.

Michael, 30 Va. App. 95, 100, 515 S.E.2d 780, 783 (1999). Moreover, Code § 20-107.1 subjects

“any maintenance and support . . . to the provisions of [Code] § 20-109.”

       Husband argued, and the trial court cited several times, the fact that wife has had some

medical problems that might limit her insurability. Husband further argued that the health

insurance provision was intended as a short-term provision until wife was able to provide her

own health insurance. However, we are not concerned with “what the parties claim they might

have said, or should have said” because that “cannot alter what they actually said.” Rutledge, 45

Va. App. at 65, 608 S.E.2d at 509. Here, the trial court superceded the parties’ agreement on

health insurance and rewrote that provision to comply with husband’s alleged intent despite the

clear language to the contrary. Because the final decree was not in accordance with the terms of

the PSA, it violated Code § 20-109(C). Therefore, we must reverse.

                                        B. Attorney’s Fees

       Both husband and wife employed attorneys to assist them through these divorce

proceedings, and both husband and wife filed motions and discovery requests that required the

other to incur attorney’s fees. Further, both asked the trial court to award them attorney’s fees

under the trial court’s general equitable power to award attorney’s fees. The trial court awarded

husband five thousand dollars in attorney’s fees and did not award wife any attorney’s fees.

Wife complains that the trial court erred in awarding husband attorney’s fees.



                                                -7-
       The trial court has the general authority to award attorney’s fees in its discretion “as

equity and justice may require.” Code § 20-99(5); see also Code § 20-79(B); Ingram v. Ingram,

217 Va. 27, 29, 225 S.E.2d 362, 364 (1976). This rule, however, does not prevent the parties

from entering into a contract that adopts a provision that limits the responsibility of attorney’s

fees to the losing or defaulting party in disputes involving the contract. Code §§ 20-109.1 and

20-109; see West Square, L.L.C. v. Commc’n Techs., 274 Va. 425, 433, 649 S.E.2d 698, 702

(2007). Indeed, here, the parties’ contract discussed the issue of attorney’s fees and resolved it

as follows:

               The parties agree that any costs, including but not limited to
               counsel fees, court costs, investigation fees, and travel expense,
               incurred by a party in the successful enforcement of any of the
               agreements, covenants, or provisions of this Agreement, whether
               through litigation or other action to compel compliance herewith,
               shall be borne by the defaulting party. Any such costs incurred by
               a party in the successful defense to any action for enforcement of
               any of the agreements, covenants, or provisions of this Agreement
               shall be borne by the party seeking to enforce compliance.

(Emphasis added).

       This language allows for attorney’s fees in two instances: (1) a party defaults and the

other party is forced to incur attorney’s fees compelling the defaulting party to comply, or (2) a

party is forced to defend the other party’s unsuccessful attempt to enforce the agreement. The

agreement does not provide for the payment of attorney’s fees in any other instance. “The

express reference to attorney’s fees for these two particular proceedings implies the preclusion of

attorney’s fees in other instances under the maxim, expressio unius est exclusio alterius.”

Rutledge, 45 Va. App. at 65, 608 S.E.2d at 508. In other words, “the omission of a particular

covenant or term from a contract reduced to writing shows an intent to exclude it.” Bentley

Funding Group v. SK&R Group, 269 Va. 315, 330, 609 S.E.2d 49, 56 (2005). “In order to find

in this agreement a requirement for attorney’s fees in other unspecified instances, we ‘would


                                                -8-
have to insert words into the writing contrary to the elementary rule that the function of the court

is to construe the contract made by the parties, not to make a contract for them.’” Rutledge, 45

Va. App. at 65, 608 S.E.2d at 508 (quoting Cave Hill Corporation v. Hiers, 264 Va. 640, 646,

570 S.E.2d 790, 793 (2002)). Nonetheless, the trial court held:

                  I [do not] think that the terms of the provision here of the
               contract actually kicks in in terms of – there was not a no-contest
               provision in the agreement.

                   It does say the agreement may be submitted to the court by
               either party. I’m not sure that his trying to get it incorporated into
               an order of this court and her challenging that is a violation of the
               agreement. It talks about the defaulting party; I [cannot] say that
               [she is] a defaulting party within the terms of this agreement.

                  However, I can equitably apportion attorney’s fees, and I am
               going to order that she pay $5,000 of the husband’s attorney’s fees
               within 60 days.

(Emphasis added).

       Clearly, Code § 20-109(C) reflects the General Assembly’s intent to give the parties the

right to determine their liability to each other before walking through the courthouse door. As a

result, we subject property settlement agreements to the same “rules of construction applicable to

contracts generally.” Rutledge, 45 Va. App. at 64, 608 S.E.2d at 508. Accordingly, we “‘cannot

read into contracts language which will add to or take away the meaning of words already

contained therein.’” Id. (quoting Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398

(1984)). Therefore, because the PSA limited the award of attorney’s fees incurred in enforcing

the agreement against the defaulting party, and the trial court specifically found that wife was not

the defaulting party, we hold that the trial court erred in awarding husband five thousand dollars

for attorney’s fees.




                                                -9-
                            C. Wife’s Amended Motion for Contempt

       Lastly, wife argues that the trial court erred in denying her amended motion for contempt,

which included a request for attorney’s fees incurred in pursuing her motion to compel. Whether

to grant a motion for contempt is within the discretion of the trial court that will not be reversed

on appeal unless wife can show an abuse of that discretion. Wells v. Wells, 12 Va. App. 31, 36,

401 S.E.2d 891, 894 (1991). Here, the trial court ordered husband to comply with wife’s

discovery requests by November 3, 2008. Husband substantially complied but omitted some

records from 2006. Wife filed an amended motion for contempt and in opposition of award of

attorney’s fees, and the trial court denied her motion. On the record before us we cannot say that

the trial court’s judgment was an abuse of discretion. Furthermore, for the reasons stated above,

the trial court had no authority to grant wife attorney’s fees because the PSA limits attorney’s

fees awards to situations involving defaulting parties. There is no evidence in the record that

husband defaulted under the PSA. Therefore, we hold that the trial court did not err in denying

wife’s amended motion for contempt.

                                          II. CONCLUSION

       For the foregoing reasons, we conclude that the trial court lacked the authority to

supercede the parties’ agreement on health insurance coverage and award attorney’s fees to

husband in the amount of five thousand dollars. Therefore, we reverse and remand to the trial

court for modification of the final decree in accordance with this opinion. Further, we affirm the

trial court’s decision to deny wife’s amended motion for contempt.

                                                                                 Affirmed in part,
                                                                                 reversed in part,
                                                                                 and remanded.




                                                - 10 -
