                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia


DIANE BARKER, F/K/A
 DIANE HUTSON-WILEY
                                                                  MEMORANDUM OPINION* BY
v.      Record No. 0740-06-4                                      JUDGE JAMES W. HALEY, JR.
                                                                       MARCH 20, 2007
JAMES HUTSON-WILEY


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                               Robert W. Wooldridge, Jr., Judge

                  Brian D. West (The West Law Group, P.C., on briefs), for appellant.

                  Gregory L. Murphy (Joseph B. Mullaney; Vorys, Sater, Seymour
                  and Pease, LLP, on brief), for appellee.


        Diane Barker (wife) appeals the trial court’s decision terminating James Hutson-Wiley’s

(husband) spousal support obligations under the divorced couple’s September 1, 2001 property

settlement agreement (PSA). Wife argues: (1) the trial court erred in holding that husband’s

spousal support obligation terminated upon her remarriage, pursuant to Code § 20-109(D); and,

(2) the trial court erred in denying the admission of parol evidence to establish the meaning and

intent of ambiguous language in the PSA. Finding no error, we affirm.

                                                  FACTS

        Husband and wife separated on May 24, 1993. On November 17, 1993, husband and wife

executed a Comprehensive Agreement Concerning Marital Separation, Support, and Property

Settlement (Comprehensive Agreement) documenting each party’s mutual maintenance and support

obligations, in addition to “all of their property rights, and all rights, claims, relationships, or

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
obligations between them . . . .” The Comprehensive Agreement was incorporated into a divorce

decree entered on August 2, 1994.

        Several years later, on September 1, 2001, husband and wife executed the PSA to

“supercede and replace the aforesaid Comprehensive Agreement in its entirety.” The PSA outlined

husband’s spousal support obligation and explained that “such payments . . . shall not be modified

or terminated except in the sole event of the death of either party.” The document further stated,

“The parties agree that this [PSA] shall constitute the entire agreement of the parties and that there

are no other agreements or representations . . . made or relied upon by either party in executing this

document.” The PSA was incorporated into a Consent Order entered by the Circuit Court of Fairfax

County on October 9, 2001.

        Wife remarried on November 27, 2004. Husband, therefore, terminated his spousal support

payments pursuant to Code § 20-109(D). Wife subsequently filed a Verified Petition for Rule to

Show Cause on July 11, 2005, alleging that husband’s discontinued support violated the terms of

the PSA. Pursuant to Code § 20-109(D), the trial court dismissed wife’s petition, explaining, “In

short, the [PSA] does not clearly, expressly, and unequivocally preserve [wife’s] right to spousal

support . . . in the event of remarriage.”

                                             PAROL EVIDENCE

        Wife argues that the trial court should have admitted parol evidence to determine the parties’

intent and the meaning of the PSA. We disagree.

        “[M]arital property settlements . . . are contracts subject to the rules of construction

applicable to contracts generally, including the application of the plain meaning of unambiguous

contractual terms.” Pysell v. Keck, 263 Va. 457, 460, 559 S.E.2d 677, 678 (2002). See also

Southerland v. Southerland, 249 Va. 584, 588, 457 S.E.2d 375, 378 (1995). Therefore, when the

terms of a contract are clear and unambiguous, the trial court must construe them according to their

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plain meaning. Bridgestone/Firestone, Inc. v. Prince William Square Assocs., 250 Va. 402, 407,

463 S.E.2d 661, 664 (1995). Whether a contract is ambiguous is a question of law subject to de

novo review on appeal. Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984).

        Extrinsic evidence is admissible to explain an ambiguity in a contract. Cohan v. Thurston,

223 Va. 523, 525, 292 S.E.2d 45, 46 (1982). However, as the Supreme Court of Virginia has

explained, “[c]ontracts are not rendered ambiguous merely because the parties or their attorneys

disagree upon the meaning of the language employed to express the agreement.” Doswell Ltd.

P’ship v. Va. Elec. & Power Co., 251 Va. 215, 222-23, 468 S.E.2d 84, 88 (1996); see also Wilson,

227 Va. at 187, 313 S.E.2d at 398. Rather, it is the job of the trial court to:

                 construe the contract made by the parties, not to make a contract for
                 them. The question for 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.

Magann Corp. v. Electrical Works, 203 Va. 259, 264, 123 S.E.2d 377, 381 (1962); Meade v.

Wallen, 226 Va. 465, 467, 311 S.E.2d 103, 104 (1984). Therefore, if the intent of the parties can be

determined from the language they employ in their contract, parol evidence respecting their intent is

inadmissible. Amos v. Coffey, 228 Va. 88, 91-92, 320 S.E.2d 335, 337 (1984); see also Godwin v.

Kerns, 178 Va. 447, 451, 17 S.E.2d 410, 412 (1941) (“[P]arol evidence . . . is inadmissible to vary,

contradict, add to, or explain the terms of a complete, unambiguous, unconditional, written

instrument.”).

        In this cause, wife argues that the trial court should have considered language from the

original Comprehensive Agreement when interpreting the parties’ intentions, as expressed in the

PSA. The PSA, however, explicitly states:

                 This Settlement Agreement shall supercede and replace the
                 aforesaid Comprehensive Agreement in its entirety. Hereafter, such
                 Comprehensive Agreement shall be null and void as concerns the
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                parties’ remaining obligations thereunder, but not as to the fully
                executed obligations of the parties. This Settlement Agreement
                shall henceforth constitute the parties’ sole and entire agreement.

(Emphasis added). The PSA also clearly states that husband’s obligation to pay spousal support

“shall not be modified or terminated except in the sole event of the death of either party.” Most

importantly, the PSA unambiguously declares that its terms “shall constitute the entire agreement of

the parties and that there are no other agreements or representations, written or oral, made or relied

upon by either party in executing this document.” (Emphasis added). We hold, therefore, that the

PSA plainly declares the parties’ intent that the PSA operate as their sole agreement, and parol

evidence is inadmissible.

       Wife argues that this cause is similar to Gayler v. Gayler, 20 Va. App. 83, 455 S.E.2d 278

(1995), where parol evidence was admitted to evince the parties’ intent that spousal support would

survive the wife’s remarriage. The Gayler decision, however, is clearly distinguishable from this

cause. In Gayler, the parties executed an original separation agreement, followed by an addendum,

and both agreements were incorporated in a final decree of divorce. This Court approved the

admission of parol evidence because “the addendum was executed in contemplation of the parties’

forthcoming final divorce decree.” Id. at 86-87, 455 S.E.2d at 280.

       In this cause, however, the parties originally executed the Comprehensive Agreement that

was later incorporated into a final divorce decree on August 2, 1994. The parties subsequently

created a new agreement, the PSA, which was intended to replace the Comprehensive Agreement

“in its entirety.” The PSA was then incorporated into a final consent order. Therefore, as the trial

court declared, “Unlike in Gayler, where two documents formed the contract between the parties,

here only the current [PSA] does so, and only the [PSA] may be considered.”

       For the above reasons, we uphold the trial court’s decision denying the admission of parol

evidence to prove the terms of the PSA.

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               TERMINATION OF SPOUSAL SUPPORT UPON REMARRIAGE

       Code § 20-109(D) plainly states, “Unless otherwise provided by stipulation or contract,

spousal support and maintenance shall terminate upon the death of either party or remarriage of

the spouse receiving support.” (Emphasis added).

       This Court, on several occasions, has discussed at length the function and the purpose of

Code § 20-109. In Radford v. Radford, 16 Va. App. 812, 813, 433 S.E.2d 35, 36 (1993), we

explained, “By resolving ambiguity, Code § 20-109 reduces litigation. To permit its mandate to

be overcome by implication would introduce ambiguity, encourage litigation and, thereby,

undermine the statute’s purpose.” Therefore, to overcome the requirements of the statute, “the

agreement must contain clear and express language evincing the parties’ intent that spousal

support will continue after remarriage; otherwise, remarriage terminates the obligation.” Miller

v. Hawkins, 14 Va. App. 192, 197, 415 S.E.2d 861, 864 (1992).

       We have articulated the principle of judicial precedent, stating:

               Under Virginia law, a decision of one panel “becomes a predicate
               for application of the doctrine of stare decisis” and cannot be
               overruled except by the Court of Appeals sitting en banc or by the
               Virginia Supreme Court. This principle applies not merely to the
               literal holding of the case, but also to its ratio decidendi, the
               essential rationale in the case that determines the judgment.

Congdon v. Congdon, 40 Va. App. 255, 265, 578 S.E.2d 833, 838 (2003) (quoting Johnson v.

Commonwealth, 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996)). The cause at hand, therefore, is

controlled by our decisions in MacNelly v. MacNelly, 17 Va. App. 427, 437 S.E.2d 582 (1993),

and Hardesty v. Hardesty, 40 Va. App. 663, 581 S.E.2d 213 (2003).

       In MacNelly, the parties agreed that husband would pay spousal support for a fixed term

of seven years or until the death of either party. The trial court ruled in favor of wife, because

their agreement was “silent” on the issue of remarriage. 17 Va. App. at 429, 437 S.E.2d at 583.

We reversed, holding that “in order to accomplish the stated objective of the statute to resolve
                                                -5-
ambiguity and thereby reduce litigation, any attempt to abrogate the effect of the statute requires

express language either citing the statute or expressly stating that remarriage does not terminate

the obligation.” Id. at 430, 437 S.E.2d at 584. Later, in Langley v. Johnson, 27 Va. App. 365,

373, 499 S.E.2d 15, 19 (1998),1 we declared, “MacNelly could not be clearer. The absence of

express language stating that remarriage will not terminate the obligation mandates the

conclusion that spousal support terminates upon remarriage by operation of the statute[].”

       In Hardesty, the PSA stated that spousal support “cannot terminate for any reason.” 40

Va. App. at 665, 581 S.E.2d at 215. Wife argued that the agreement expressed a desire for

support to survive her remarriage. We upheld the trial court’s termination of spousal support,

explaining, “no language in any part of the PSA explicitly evinces the parties’ intent to avoid

operation of the statute as to remarriage.” Id. at 669, 581 S.E.2d at 216. In so holding, we

specifically relied on the language in MacNelly, requiring “‘express language either citing the

statute or expressly stating that remarriage does not terminate the obligation.’” Id. at 667-68,

581 S.E.2d at 216 (quoting MacNelly, 17 Va. App. at 430, 437 S.E.2d at 584); see also Baldwin

v. Baldwin, 44 Va. App. 93, 101, 603 S.E.2d 172, 175 (2004) (“Hardesty can best be understood

as recognizing a statutory preset that can be undone only by the clearest possible expression of

contractual intent.”).



       1
         As here, the wife in Langley relied on Gayler, where this Court ruled that the language
of the agreement evinced the parties’ intent that spousal support would survive remarriage. 27
Va. App. at 373-74, 499 S.E.2d at 19. The Langley Court, however, rejected wife’s argument,
focusing on a footnote in Gayler where we explained:

               “The use of the term ‘only’ by the parties is alone not
               determinative of the issue. Absent the reference to the effect of
               remarriage in the original agreement, the language of the
               addendum standing alone would not be sufficient to evince an
               intent of the parties to avoid the operation of [Code § 20-109(D)].”

Id. at 374, 499 S.E.2d at 19 (quoting Gayler, 20 Va. App. at 86 n.2, 455 S.E.2d at 280 n.2).
                                               -6-
        In this cause, the PSA stated that husband’s spousal support obligation “shall not be

modified or terminated except in the sole event of the death of either party.” The PSA, therefore,

was silent on the issue of remarriage. Based on our holdings in MacNelly and Hardesty, we agree

with the trial court’s ruling that “the [PSA] does not clearly, expressly, and unequivocally preserve

[wife’s] right to spousal support . . . in the event of remarriage.”

        For the above reasons, we uphold the decision of the trial court.

                                                                                            Affirmed.




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