                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


MERI DELL SHARBUTT-RIDGE

v.         Record No. 0736-97-1

JAMES JOSEPH RIDGE
                                           MEMORANDUM OPINION * BY
and                                       JUDGE NELSON T. OVERTON
                                             FEBRUARY 24, 1998
JAMES JOSEPH RIDGE
v.         Record No. 0870-97-1

MERI DELL SHARBUTT-RIDGE


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                        Marc Jacobson, Judge

           Priscilla M. Rae; Louis W. Kershner (Kershner
           and Hawkins, P.C., on briefs), for Meri Dell
           Sharbutt-Ridge.

           J. Barry McCracken (Cook & McCracken, on
           briefs), for James Joseph Ridge.



      Mrs. Meri Dell Sharbutt-Ridge (wife) and James Joseph Ridge

(husband) appeal an order of the City of Norfolk Circuit Court

denying wife's motion to reopen their divorce decree.     Wife

asserts that the trial court erred when it refused to increase

her share of her husband's military pension, refused to require

that husband pay federal income taxes on her share of the pension

and refused her request for attorney's fees.    Husband has

appealed only that portion of the order denying him his

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
attorney's fees.   For the reasons set forth below, we affirm in

part and remand for reconsideration.

       The parties were married on June 25, 1960, separated on

April 18, 1985 and divorced on October 14, 1988.     Their divorce

decree incorporated the parties' separation agreement.     The

agreement disposed of all the marital assets including the

pension husband received after retiring from thirty-one years of

service in the United States Navy.      It classified the pension as

a "personal property right authorized under 10 U.S.C.A. 1408 et

seq. ('Uniformed Service Former Spouses Protection Act')"

(USFSPA).   Under the terms of the agreement, wife would receive

thirty-nine percent (39%) of the "gross retirement to which he is

then entitled."
       Beginning on June 1, 1988 the United States Navy paid wife

39% of husband's retirement pay minus applicable federal income

taxes.    Husband characterized the payment as alimony on his

federal tax returns; deductible to the payor, included by the

payee.    At the same time, wife characterized her share as a

property split incident to divorce; excluded from her taxable

income.   In 1990, the Internal Revenue Service assessed over six

thousand dollars in back taxes, penalties and interest against

her.   Wife paid the assessment and has paid taxes on her share

ever since.

       Wife filed her motion to reopen on December 12, 1994

alleging the intent of the separation agreement was for her to




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receive her share before his taxes had been deducted, not after.

Additionally, she claimed that he was responsible for past and

future payments of the taxes levied on her share.    Husband

claimed that the definition of "disposable retired or retainer"

pay existing at the time of the agreement allowed payment of her

share only after his taxes had been deducted.    Additionally, he

disputed the jurisdiction of the circuit court to hear what was

essentially an appeal of the decision of a federal administrative

agency, the IRS.
        The trial court denied wife's motion to reopen on March 27,

1997.    Both parties have appealed that decision.

                                USFSPA

        The main bone of contention between the parties is the

intended effect of USFSPA on the incorporated separation

agreement they created in 1988.    USFSPA authorizes state courts

to treat a retiree's "disposable retired or retainer pay . . .

either as property solely of the member or as property of the

member and his spouse in accordance with the law or the

jurisdiction of such court."    10 U.S.C. § 1408 (1988).   In 1988

"disposable retired pay" was defined by 10 U.S.C. § 1408(a)(4) as
          the total monthly retired or retainer pay to
          which a member is entitled less amounts which
          . . . (C) are properly withheld for Federal,
          State, or local income tax purposes, if the
          withholding of such amounts is authorized or
          required by law to the extent such amounts
          are withheld are not greater than would be
          authorized if such member claimed all
          dependents to which he was entitled.




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     USFSPA was amended on November 5, 1990.    The amendment

removed subsection C from the definition of "disposable retired

or retainer pay."   The effect was to allow courts to divide

military pensions before taxes were withheld and award a

percentage of this net amount to spouses.    However, the amendment

was not retroactive, applying only to divorces effective 90 days

after the amendment.   10 U.S.C. § 1062(a) (1990).

     The trial court looked to the definition in effect at the

time the divorce was decreed.   It concluded that the trial court

at that time could not have had jurisdiction to award more than

what was encompassed by the statute.    Thus, in order to interpret

the agreement in accord with the decreeing court's jurisdiction,

the trial court found that wife's 39% share came from the net,

not the gross, amount.   It held that the 1990 amendment was

irrelevant to the case because it was not retroactive.
     When a judgment is based upon the construction or

interpretation of a contract, an appellate court is not bound by

the trial court's construction of the contract's provisions.         See

Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986).

An appellate court is equally able to construe the meaning of

the provisions of an unambiguous contract.     See Wilson v.

Holyfield, 227 Va. 184, 188, 313 S.E.2d 396, 398 (1984).       The

rules of construction that apply to contracts also apply to

settlement agreements.   Tiffany v. Tiffany, 1 Va. App. 11, 15,

332 S.E.2d 796, 799 (1985).



                                - 4 -
     We agree with the trial court's ruling that USFSPA did not

authorize the decreeing court in 1988 to award more than was

defined by the federal law.    If the decreeing court had acted in

conflict with the definition of USFSPA, it would have done so

without jurisdiction.    A decree rendered by a court which lacked

jurisdiction is void ab initio.     Rook v. Rook, 233 Va. 92, 95,

353 S.E.2d 756, 758 (1987).    We affirm that portion of the trial

court's decision.
     There is a separate issue, however, which the trial court

apparently failed to address.    Wife has argued that the amendment

to USFSPA was a change contemplated by the parties when they

created the agreement.   Thus, even though the statute does not

make itself retroactive, the parties may have done so by

operation of contract.   "A quid pro quo of entering into a

comprehensive agreement is the 'possibility that the law may

change in one's favor.'"    Bragan v. Bragan, 4 Va. App. 516, 519,

358 S.E.2d 757, 759 (1987) (citations omitted).    The separation

agreement does expressly tie wife's share to the definition of

"disposable retired pay" from 10 U.S.C. § 1408.    It is possible

that by this express reference to the United States Code they

intended to do by contract what Congress did not see fit to do by

legislation, make any change in USFSPA applicable to computation

of wife's property right.     See Cook v. Cook, 18 Va. App. 726,

730-31, 446 S.E.2d 894, 896 (1994) (holding that the parties

could contract around the ten-year marriage requirement contained



                                 - 5 -
in 10 U.S.C. § 1408(d)(2)).   While we do not here express an

opinion as to whether the parties did so intend, we remand the

issue back to the trial court for determination.




                               - 6 -
                           Tax Treatment

     Wife's second ascription of error is that the trial court

failed to assign husband the duty of paying the federal income

taxes due on her share of his pension.     She asserts that if the

government has levied improper taxes, then it becomes the

responsibility of husband to reimburse her both retroactively and

prospectively.   Because this position is without support in law

or in the terms of the agreement, we reject it.
     We look to the four corners of the agreement for any

indication that the parties sought to address tax liability on

their respective shares of husband's pension.     See Blunt v.

Lentz, 241 Va. 547, 551, 404 S.E.2d 62, 64 (1991) (citing Ross v.

Craw, 231 Va. 206, 212, 343 S.E.2d 312, 316 (1986)).     Upon a

careful reading of the agreement, we find no support for wife's

contention that the last lines of Paragraph 14 require husband to

pay her taxes.   Those lines read, "Should the United States Navy

Finance Center or other appropriate United States Government

agency fail to pay Wife hereunder, the Husband must pay wife

direct on all his obligations under this paragraph."    No organ of

the federal government has failed to pay her the funds to which
she claims she is entitled.   Therefore the paragraph does not

address the question at issue:    whether one party must give back

some of the money in the form of taxes.

     Nowhere in the agreement are the tax burdens of the parties

mentioned, much less apportioned.    We would, in theory, agree




                                 - 7 -
with wife's position that the pension is a property division, not

alimony and is, therefore, a tax-neutral event for which she

should not owe income tax.   However, it is not within the

jurisdiction of this Court to order the IRS to cease collecting

taxes.   Nor do we "rewrite contracts to insert provisions that

have been omitted by the parties."     Jones v. Harrison, 250 Va.

64, 68, 458 S.E.2d 766, 769 (1995) (citing Westbury Coal Min.

Partnership v. J.S. & K. Coal Corp., 233 Va. 226, 229, 355 S.E.2d

571, 572-73 (1987)).   Wife's remedy for overpayment of federal

income taxes lies not in an appeal to the state courts, but in a

prompt challenge to the IRS in the appropriate federal forum.
                          Attorney's Fees

     The separation agreement provides that if either party

retains counsel for the purpose of "enforcing or preventing the

breach of any provision hereof, then the prevailing party shall

be entitled to be reimbursed by the losing party."    The trial

court, however, decided to leave each party responsible for its

own attorney's fees.

     "An award of attorneys fees is a matter submitted to the

trial judge's sound discretion and is reviewable on appeal only

for an abuse of discretion."   Graves v. Graves, 4 Va. App. 326,

333, 357 S.E.2d 554, 558 (1987) (citing Ingram v. Ingram, 217 Va.

27, 29, 225 S.E.2d 362, 364 (1976)).    The record indicates that

neither party has asserted frivolous arguments or false

allegations.   None of the litigation has been motivated by bad




                               - 8 -
faith or a desire to hinder or delay the other party.    While

suits involving separation and divorce are always emotional,

hotly-contested affairs, we find no special circumstances which

would lead us to conclude that the trial court's decision was not

warranted.   We, therefore, affirm his decision and refuse to

award attorney's fees for the expenses of trial or appeal.

                            Conclusion

     Because it appears that the trial court did not consider

wife's contention that the parties had, through contract, tied

the computation of wife's property interest to a future amendment

to USFSPA, even where Congress had chosen not to make the change

retroactive, we remand to the trial court with instructions to

reopen the decree and examine that possibility.    On the issues of

tax liability and attorney's fees, we affirm.
                                                Affirmed in part,
                                                remanded in part.




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