                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Russell and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              PERRY EDWARD JONES
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 0062-15-2                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                FEBRUARY 2, 2016
              LORI GATES JONES


                                    FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                            Richard S. Wallerstein, Jr., Judge

                               John P. Walsh (Denbigh Law Center, on briefs), for appellant.

                               Brandy M. Poss (DeFazio Bal, P.C., on brief), for appellee.


                     This appeal concerns a Military Retired Pay Qualifying Division Order (“Order”) entered

              by the Circuit Court of Henrico County (“trial court”) following the parties’ divorce. Appellant

              Perry Edward Jones (“husband”1) assigns four errors: (1) the Order conflicted with the

              provisions of the parties’ written property settlement agreement which was incorporated into the

              final decree of divorce; (2) the trial court should instead have entered the Military Qualifying

              Court Order husband drafted; (3) the trial court should have awarded husband attorney’s fees and

              costs; and (4) the trial court should have prohibited Leslie Shaner from testifying as an expert

              witness for appellee Lori Gates Jones (“wife”). For the following reasons, we affirm in part,

              reverse in part, dismiss in part, and remand.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                      Although the more accurate designations would be “former husband” and “former
              wife,” we use less cumbersome titles in this memorandum opinion for ease of reference and
              comprehension.
                                         I. BACKGROUND

       In December 2013, the parties entered into a Property Settlement Agreement

(“Agreement”) settling the issues of support and equitable distribution following their divorce.

The Agreement was incorporated into the final decree of divorce entered on February 12, 2014.

       A few months later, wife moved for the entry of a proposed order addressing the division

of husband’s military retirement. Her proposed order contained different language than the

Agreement. Because of this, husband objected to wife’s proposed order on the grounds that

certain paragraphs created substantive rights not granted in the Agreement. Wife argued that her

proposed order made only administrative or ministerial changes, and the additional language

only effectuated the terms of the Agreement. Husband submitted an alternative proposed order.

After a hearing, the trial court continued the matter and requested that the parties present

evidence from expert witnesses to assist the court in resolving the matter. At the later hearing,

wife presented the expert testimony of Leslie Shaner to explain the provisions of the proposed

orders in the context of dividing military retirement benefits. Shaner formerly worked as an

attorney with the law firm representing wife in the proceedings, and had drafted some provisions

in wife’s proposed order. The trial court, after making some modifications not pertinent to this

appeal, entered wife’s proposed order (the Order appealed here).

       The portions of the Agreement relevant to this appeal are:

               3. ENTIRE AGREEMENT: Husband and Wife acknowledge that
               this agreement contains the entire understanding between Husband
               and Wife and that there are no representations, warranties, covenants
               or undertakings other than those expressly set forth herein.

                       ....

               21. RETIREMENT BENEFITS: (a) Wife shall receive one-half of
               the marital share of Husband’s military retirement accounts/plans.
               Such division shall be done by QDRO, ADRO, or other required
               mechanism. The costs of preparing the paperwork shall be at Wife’s
               expense. The Marital Share shall be a fraction, the numerator of
                                                -2-
                which is the number of reserve retirement points earned during the
                marriage and the denominator is the Husband’s total number of
                reserve retirement points. If Husband has a further retirement
                component based upon creditable months of service, the Wife will
                also receive a similar one-half marital share of that benefit (with the
                numerator and denominator expressed in months of creditable
                service rather than reserve retirement points). Husband shall elect
                (or cause to be selected) participation in the Survivor Benefit Plan
                (SBP) of at least a 50% survivor benefit.

The Agreement contains no express indemnification clause.

                             II. CHALLENGED PROVISIONS IN THE ORDER

        “[O]n appeal, our standard of review for property settlement agreements is the same as for

other contracts.” Craig v. Craig, 59 Va. App. 527, 537, 721 S.E.2d 24, 28 (2012). “If the terms of

the agreement are unambiguous, their meaning and effect are questions of law,” id. at 537, 721

S.E.2d at 28-29, which we review de novo.

        “[A]lthough ‘Code § 20-109(A) empowers trial courts to modify a spousal support award,

. . . Code § 20-109(C) expressly limits the court’s authority . . . according to the terms of a

stipulation or contract signed by the parties.’” Rutledge v. Rutledge, 45 Va. App. 56, 61-62, 608

S.E.2d 504, 507 (2005) (omissions in original) (quoting Blackburn v. Michael, 30 Va. App. 95,

100, 515 S.E.2d 780, 783 (1999)). An order “must be consistent with the substantive provisions of

the original decree . . . .” Craig, 59 Va. App. at 539, 721 S.E.2d at 29 (quoting Williams v.

Williams, 32 Va. App. 72, 75, 526 S.E.2d 301, 303 (2000)).

        “[I]t is the function of the court to construe the contract made by the parties, not to make

a contract for them.” Id. at 536, 721 S.E.2d at 28 (quoting Irwin v. Irwin, 47 Va. App. 287, 293,

623 S.E.2d 438, 441 (2005)). “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.” Id. “In determining the intent

of the parties, courts will generally not infer covenants and promises which are not contained in the

                                                  -3-
written provisions.” Boedeker v. Larson, 44 Va. App. 508, 519, 605 S.E.2d 764, 769 (2004)

(quoting Pellegrin v. Pellegrin, 31 Va. App. 753, 759, 525 S.E.2d 611, 614 (2000)).

                                     A. Anti-circumvention provisions

       Husband objects to numerous terms in the Order. He argues that some provisions facially

conflict with the Agreement, and others amount to additional “representations, warranties,

covenants or undertakings” that violate paragraph three of the Agreement. Husband’s most

substantive challenges concern “anti-circumvention” provisions (paragraphs 15,2 16,3 17,4


       2
               15. Merger of Benefits and Indemnification: The Member agrees
               not to merge the Member’s disposable military retired pay with
               any other pension and not to pursue any course of action that
               would defeat the Former Spouse’s right to receive a portion of the
               disposable military retired pay of the Member. The Member
               agrees not to take any action by merger of the military retirement
               pension so as to cause a limitation in the amount of the total retired
               pay in which the Member has a vested interest and, therefore, the
               Member will not cause a limitation of the Former Spouse’s
               monthly payments as set forth above. If the Member becomes
               employed or otherwise has his military pension merged, which
               employment or other condition causes a merger of the Member’s
               disposable military retired pay, the Member will pay to the Former
               Spouse directly the monthly amount provided in Paragraph 6,
               under the same terms and conditions as if those payments were
               made pursuant to the terms of this order.
       3
               16. Direct Payment by Member: If in any month, direct payment
               is not made to Former Spouse by DFAS [Defense Finance and
               Accounting Services] (or the appropriate military pay center)
               pursuant to the terms of this Order, Member shall pay the amounts
               called for above directly to Former Spouse within fourteen (14)
               days of notification from Former Spouse that she has not received
               direct payment from DFAS (or the appropriate military pay
               center). This includes any amounts received by the Member in lieu
               of disposable retired pay, including but not limited to, any amounts
               waived by Member in order to receive Veterans Administration
               (i.e., disability) benefits or any amounts received by Member as a
               result of an early-out provision, such as VSI [Voluntary Separation
               Initiative] or SSB [Special Separation Benefit] benefits.
       4
               17. Actions by Member: If Member takes any action that
               prevents, decreases, or limits the collection by Former Spouse of
                                                -4-
19,5 and 226 of the Order). These provisions address actions husband must take and must not take

because they purportedly would defeat wife’s vested7 right, under the Agreement, to one-half of the



               the sums to be paid hereunder, he shall make payments to Former
               Spouse directly in an amount sufficient to neutralize, as to Former
               Spouse, the effects of the actions taken by Member.
       5
               19. Continued Jurisdiction: The Court shall retain jurisdiction to
               enter such further orders as are necessary to enforce the award to
               spouse of the military retirement benefits awarded herein,
               including the recharacterization thereof as a division of Civil
               Service or other retirement benefits, to comply with the provisions
               contained above requiring said payments to Former Spouse by any
               means, including the application for a disability award or filing of
               bankruptcy, or if military or government regulations or other
               restrictions interfere with payments to Former Spouse as set forth
               herein.
       6
               22. Definition of Military Retirement: For the purposes of
               interpreting this Court’s intention in making the division set out in
               this Order, “military retirement” includes retired pay paid or to
               which Member would be entitled for longevity of active duty
               and/or reserve component military service and all payments paid or
               payable under the provisions of Chapter 38 or Chapter 61 of Title
               10 of the United States Code, before any statutory, regulatory, or
               elective deductions are applied. For purposes of calculating the
               Former Spouse’s share of the benefits awarded to her by the Court,
               the marital property interests of the Former Spouse shall also
               include a pro-rata share of all amounts the Member actually or
               constructively waives or forfeits in any manner and for any reason
               or purpose, including, but not limited to, any waiver made in order
               to qualify for Veterans Administration or disability benefits. It
               also includes a pro-rata share of any sum taken by member in lieu
               of or in addition to his disposable retired pay, including, but not
               limited to, exit bonuses, voluntary separation incentive pay (VSI),
               special separation benefit (SSB), or any other form of retirement
               benefits attributable to separation from military service. Such
               pro-rata share shall be based on the same formula, percentage or
               amounts specified in Section 6 above, as applicable. In the event
               that the DFAS will not pay the Former Spouse directly all or a
               portion of the benefits awarded to her herein, then Member shall be
               required to pay her directly in accordance with the terms and
               provisions set forth in Section 16 above.
       7
         As this Court has stated, “property rights and interests [become] vested in the parties when
they [agree] upon them, set them forth in a valid separation agreement, and [have] them
                                                 -5-
marital share of husband’s military retirement accounts and plans. Wife maintains that these

provisions merely effectuate the provision of the Agreement requiring that she receive one half

of husband’s military retirement pay. We disagree. Although we appreciate the unique issues

raised by military retirement pay, and see the equities in preventing one party from undermining

the contemplated terms of a property settlement agreement, binding husband to all of the

anti-circumvention provisions in the Order does more than effectuate the terms of the parties’

Agreement.

           1. Background: Reduction of Military Retirement through Waiver or Merger

       There are several mechanisms by which individuals with military retirement benefits can

reduce retirement pay. Two are relevant here. First, military retirees can waive retirement

benefits in order to receive other benefits, such as Veteran’s Administration disability benefits.

Second, military retirees can merge, or “roll over,” their military retirement into a non-military

retirement plan. The anti-circumvention provisions husband challenges attempt to prevent

husband from waiving or merging benefits,8 and provide wife with remedies in the event of




incorporated into their final divorce decree.” Irwin, 47 Va. App. at 294, 623 S.E.2d at 441
(alterations in original) (quoting Himes v. Himes, 12 Va. App. 966, 970, 407 S.E.2d 694, 697
(1991)). Accordingly, wife has a vested right to one-half of the marital share of husband’s military
retirement accounts and plans under the Agreement.
       8
          Both parties describe the Order as prohibiting both merger and waiver of retirement
benefits. For several reasons, so shall this Court. However, we note that the anti-circumvention
language appears to have been drafted to only prohibit merger. Specifically, in paragraph 15,
husband “agrees” not to “pursue any course of action that would defeat the Former Spouse’s right to
receive a portion of the disposable military retired pay . . . .” Viewed in isolation, this would
prohibit waiver for disability or other benefits, and thus, as explained below, could contravene
federal law. However, paragraph 22 of the Order defines military retirement to exclude those
benefits waived or forfeited for disability benefits. It instead defines those waived benefits as
“marital property interests,” a term the Agreement provides no default method for allocating. The
anti-circumvention provisions are form language found in other sources, see, e.g., Blythe v. Blythe,
2004-Ohio-575 (Ct. App. February 4, 2004), perhaps explaining the discrepancy. Regardless,
because we find the trial court erred in including injunctive language, whatever its scope, we need
not resolve this issue.
                                                   -6-
waiver or merger. In our analysis, we differentiate between those anti-circumvention provisions

which prohibit husband from waiving or merging benefits (injunctive) from those requiring him

to compensate wife in the event of waiver or merger (indemnifying).

                                      2. Injunctive Provisions

        Paragraph 15, in part, prohibits husband from merging or waiving his retirement benefits.

Understandably, wife prefers the administrative ease of prohibiting husband from taking these

actions, as opposed to attempting to recover from him after the fact, should it be necessary.

However, the Agreement provides her no right to do so. The parties could have foreseen the

possibility of either ex-spouse attempting to reduce the amount owed to the other, regardless of

their understanding the specific means by which one could do so. Although the absence of

specific clauses in the Agreement addressing “merger” or “waiver” of retirement benefits is not

dispositive, the parties failed even to include any broader provisions that might cover such

actions. For example, in Owen v. Owen, 14 Va. App. 623, 419 S.E.2d 267 (1992), the parties’

property settlement agreement provided not only that the husband would not merge his military

retirement with any possible future government pension, but also that he would not “take any

action so as to defeat the Wife’s right to share in the monthly retirement benefits as set forth in

this Agreement.” Id. at 627, 419 S.E.2d at 269. Clearly, even without any knowledge of the

intricacies of military retirement, the parties here could have anticipated the risk of

circumvention and included a comparable clause in the Agreement. They did not; instead, wife

seeks to tack on such a provision after the fact. We will not “infer covenants and promises which

are not contained in the written provisions.” Boedeker, 44 Va. App. at 519, 605 S.E.2d at 769

(quoting Pellegrin, 31 Va. App. at 759, 525 S.E.2d at 614). Wife is not entitled to receive remedies

for which she failed to contract.




                                                 -7-
       Moreover, although the parties could have agreed to anti-circumvention provisions, see

Owen, 14 Va. App. at 627, 419 S.E.2d at 269, there are grave problems with the trial court

ordering husband not to waive his retirement for disability benefits in the absence of such an

agreement. “[A] state court [likely] cannot actually order a service member not to waive his

military retirement benefits in favor of disability or other replacement benefits. Such an order

probably violates federal law.”9 2 Brett R. Turner, Equitable Distribution § 6.10, at 67-68 (3d

ed. 2005 & Supp. 2015-2016) (citing Cunningham v. Cunningham, 615 S.E.2d 675, 681-82

(N.C. Ct. App. 2005); Freeman v. Freeman, 133 S.W.3d 277, 280 (Tex. App. 2003)). The court

may “order the service member to compensate the former spouse for any harm caused by the

election,” but may not “order the service member not to make the election in the first place.” Id.

at 68. For these reasons, the trial court erred in including injunctive provisions in the Order.

                                         3. Indemnification

       Paragraphs 15, 16, and 17 all contain language that serves to indemnify wife in the event

she fails to receive her share of husband’s retirement benefits. The parties, however, included no

indemnification clause in their Agreement. States differ in their treatment of a former spouse

whose share of military retirement benefits is reduced by the other spouse’s waiver of retirement

in favor of disability payments when the property settlement agreement does not expressly

prohibit such a waiver and contains no indemnification provision. Many allow relief; some do

not. See Merrill v. Merrill, 284 P.3d 880, 884 n.2 (Ariz. Ct. App. 2012) (listing cases).


       9
          This is one of many vital issues the parties failed either to recognize or raise both on
appeal and before the trial court. Military retirement pensions are subject to federal statute, see 10
U.S.C. § 1408 (“Former Spouses’ Protection Act”), and controlled by United States Supreme
Court authority, see Mansell v. Mansell, 490 U.S. 581 (1989). Under this authority, “when
military disability benefits are received in lieu of retirement pay, or veterans’ disability benefits
administered by the V.A. are received according to the required waiver of an equal amount of
military retirement pay, the benefits are not subject to division by the state courts under the Act.”
Owen, 14 Va. App. at 626, 419 S.E.2d at 269 (quoting Lambert v. Lambert, 10 Va. App. 623,
627, 395 S.E.2d 207, 209 (1990)).
                                                  -8-
Although we have not addressed the exact issue here, whether implied indemnification is

appropriate prior to one party’s acting to reduce their retirement benefit, case law provides some

guidance. For example, this Court has previously held that one party should recover when their

former spouse reduced his retirement benefit (by accepting a career status bonus) prior to the

property settlement agreement being incorporated into a divorce decree. See Boedeker, 44

Va. App. at 526, 605 S.E.2d at 773. In an unpublished opinion,10 we have also upheld a trial

court’s order that an ex-husband, who waived retirement benefits to receive disability benefits,

pay his ex-wife the amount by which his waiver reduced her 50% share (pursuant to an

incorporated property settlement agreement) in his retirement benefits. Hubble v. Hubble,

No. 2015-01-4, 2002 Va. App. LEXIS 459 (Va. Ct. App. Aug. 6, 2002). Although these

holdings do not control the outcome here, their reasoning is applicable. Wife would be able to

recover the difference were husband to merge or waive benefits.

       The trial court correctly found that the Agreement plainly manifests the intent for wife to

receive one-half of husband’s military retirement benefits.11 Wife’s interest in such benefits

vested once the Agreement was incorporated into the final decree of divorce. Accordingly, were

she to receive a reduced sum on account of husband’s actions, it would amount to a unilateral

modification of the agreement, and she would be entitled to relief. See Higgins v. McFarland,

196 Va. 889, 895, 86 S.E.2d 168, 172 (1955). Under the Agreement, and further conceded by


       10
         “Unpublished opinions of this Court, while having no precedential value, are
nevertheless persuasive authority.” Otey v. Commonwealth, 61 Va. App. 346, 351 n.3, 735
S.E.2d 255, 258 n.3 (2012).
       11
          We are not determining the parties’ intent at the time they entered the agreement (a
question of fact requiring the review of parol evidence, only appropriate if the Agreement was
first deemed ambiguous, see Shoup v. Shoup, 31 Va. App. 621, 625, 525 S.E.2d 61, 63 (2000),
but rather the intent manifested within the four corners of the Agreement. See Code
§ 20-107.3(K)(4) (granting the court “the authority to . . . [m]odify any order . . . to revise or
conform its terms so as to effectuate the expressed intent of the order”). This inquiry is thus a
question of law we review de novo.
                                                -9-
wife, husband would not be held responsible for making such payments unless he first received

them, so his concerns that the Order requires him to serve as a “guarantor” to the government in

the event of a shut-down or other event are unfounded. Accordingly, the trial court did not err in

including language in the Order providing that husband would indemnify wife in the event of

merger or waiver.

                                   B. Other Challenged Provisions

       Husband challenges two final provisions that serve a purpose other than preventing husband

from merging or waiving retirement benefits. Paragraph 7 of the Order states in pertinent part, “The

level of [Survivor Benefit Plan] coverage required for the Former Spouse shall be that which will

provide her with the same benefit payments after the Member’s death that she was eligible to

receive or receiving before his death.” Husband argues that this “directly conflicts” with the

Agreement, which states that “Husband shall elect (or cause to be selected) participation in the

Survivor Benefit Plan (SBP) of at least a 50% survivor benefit.”

       Husband does not explain how these terms conflict. “Rule 5A:20(e) requires that an

appellant’s opening brief contain ‘[t]he principles of law, the argument, and the authorities relating

to each question presented.’ Unsupported assertions of error ‘do not merit appellate

consideration.’” Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d 343, 345 (2008)

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

Court concluded that ‘when a party’s ‘failure to strictly adhere to the requirements of Rule

5A:20(e)’ is significant, ‘the Court of Appeals may . . . treat a question presented [now assignment

of error] as waived.’” Atkins v. Commonwealth, 57 Va. App. 2, 20, 698 S.E.2d 249, 258 (2010)

(quoting Parks v. Parks, 52 Va. App. 663, 664, 666 S.E.2d 547, 548 (2008)). Accordingly, because

husband’s conclusory arguments fail to satisfy Rule 5A:20(e), we affirm the trial court’s including

paragraph 7 in the Order.

                                                 - 10 -
         Second, paragraph 23 states that husband will provide thirty days’ notice to wife when he

retires. He argues that this is a specific undertaking not provided for in the Agreement. We see no

merit in this argument. This provision is a reasonable and minimally burdensome way to address a

foreseeable logistical issue, given that it could be a decade or more before husband retires.

Furthermore, the Agreement states that the parties would execute and deliver documents “which

may reasonably be required to give full force and effect” to the Agreement. Accordingly, we find

no error in the trial court including paragraph 23.

                                    C. Husband’s Proposed Order

         Husband also argues that the trial court should have entered the alternative order he

submitted. Even if we were to conclude that husband’s proposed order did not conflict with the

Agreement, husband offers no argument as to why a trial court must enter a proposed order

simply because it is harmonious. Again, husband’s argument fails to satisfy Rule 5A:20(e), as

described above. See Jones, 51 Va. App. at 734, 660 S.E.2d at 345. Because he includes no

principles of law or authorities to support his contention, we have no basis for which to conclude

the trial court should have entered husband’s proposed order. Thus, husband has waived the

issue.

                                  III. ATTORNEY’S FEES AND COSTS

         We have no jurisdiction to review husband’s third assignment of error, as the trial court had

not entered a final order resolving the dispute over attorney’s fees and costs at the time of appeal.

As pertinent to this matter, “this Court has appellate jurisdiction over final decrees [and orders] of a

circuit court in domestic relations matters arising under Titles 16.1 or 20, and any interlocutory

decree or order involving the granting, dissolving, or denying of an injunction or ‘adjudicating the

principles of a cause.[’]” Horn v. Horn, 28 Va. App. 688, 692, 508 S.E.2d 347, 349 (1998)

(emphasis added) (quoting Code § 17.1-405(3)(f) and (4)). The parties concede that the trial court

                                                 - 11 -
never ruled upon or issued a final order on the issue of attorney’s fees and costs. Accordingly, the

issue is not properly before us.

                                   IV. EXPERT WITNESS TESTIMONY

        Husband argues that the trial court’s admission of Shaner’s expert testimony was

“unnecessary and improper,” but cites no rule of law to support his argument. Yet again, Rule

5A:20(e) precludes our considering this argument. See Jones, 51 Va. App. at 734, 660 S.E.2d at

345. Because husband provides no supporting legal argument or authority to support his position

that the trial court erred in admitting Shaner’s expert testimony, and because we find that this

omission is significant, we conclude that this argument is waived pursuant to Rule 5A:20(e).12

                                           V. CONCLUSION

        We affirm the trial court’s refusal to enter husband’s proposed order, and its

consideration of Shaner’s expert testimony. We dismiss the assignment of error regarding

attorney’s fees and costs. We deny wife’s request for an award of attorneys’ fees and costs

incurred in litigating this appeal. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479

S.E.2d 98, 100 (1996). The matter is reversed for the reasons stated in Part II.A, and remanded

for entry of a revised order that comports with this memorandum opinion.

                                                                                   Affirmed in part,
                                                                  reversed and remanded in part, and
                                                                                  dismissed in part.




        12
           Husband’s argument also fails on the merits. “The standard of review on appeal where
the admissibility of expert testimony is challenged is whether the trial court abused its discretion.”
Kern v. Commonwealth, 2 Va. App. 84, 86, 341 S.E.2d 397, 398 (1986). In this matter, the trial
court ordered the parties to present expert testimony to explain the nuances of military retirement
and anti-circumvention provisions. Only wife did so. The testimony was relevant and presumably
helpful to the court. The trier of fact was best situated to evaluate Shaner’s credibility and any bias
she may have had. In addition, husband conceded at oral argument before this Court that, even if
this Court were to adopt his view, it would not affect the ultimate outcome of the case. For these
reasons, the trial court did not abuse its discretion.
                                                   - 12 -
