                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and Decker
              Argued at Alexandria, Virginia
UNPUBLISHED




              JOHN MICHAEL BOONE
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 0578-17-4                                  JUDGE MARLA GRAFF DECKER
                                                                                DECEMBER 19, 2017
              REBECCA ANN BOONE


                                    FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                              Douglas L. Fleming, Jr., Judge

                                Bart Colombo (O’Reilly & Mark, P.C., on brief), for appellant.

                                No brief or argument for appellee.


                      John Michael Boone (the husband) appeals a final order of the circuit court modifying

              spousal support owed to Rebecca Ann Boone (the wife). The husband argues that the court erred

              by not making the order retroactive to the date of his involuntary retirement. We hold that the

              court correctly applied the law to the facts. Accordingly, we affirm the circuit court order

              modifying spousal support.

                                                       I. BACKGROUND1

                      The parties entered into a property settlement agreement (PSA), in which the husband

              agreed to pay $2,400 per month in spousal support to the wife, beginning June 1, 2010. The PSA

              further stated that “in the event [the husband] involuntarily retires . . . , spousal support shall be



                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                      1
                       On appeal, this Court views the evidence “in the light most favorable to the prevailing
              party below[,] and its evidence is afforded all reasonable inferences fairly deducible therefrom.”
              Milam v. Milam, 65 Va. App. 439, 447, 778 S.E.2d 535, 539 (2015) (quoting Bristol Dep’t of
              Soc. Servs. v. Welch, 64 Va. App. 34, 40, 764 S.E.2d 284, 287 (2014)).
recalculated based on the incomes of the parties at that time.” The PSA was incorporated into

the final decree of divorce on August 10, 2011.2

       In July 2016, the wife filed a petition for a rule to show cause. She alleged that the

husband failed to pay the full amount of spousal support in 2014 and did not pay any spousal

support in 2015 and 2016. The circuit court entered an order requiring the husband to appear and

show cause. The husband subsequently filed a motion to modify spousal support. He asserted

that he lost his job in 2013 and had not been able to find alternate employment with a

comparable income. He contended that in accordance with the PSA, he was entitled to a

modification of the spousal support obligation.

       On October 31, 2016, the parties presented evidence and argument. The circuit court

found that the husband involuntarily retired in September 2013 when he lost his job. The court

made certain findings regarding the parties’ respective incomes over time. It noted that in 2011,

the husband earned approximately $130,000, and the wife earned $28,000. In 2014, the husband

earned no income, whereas the wife’s salary was $45,000 per year. In 2015, the husband’s

wages were approximately $1,200, and the wife earned $64,280. In 2016, the husband found

employment and received money from an annuity, and his income was approximately $45,200.

       At the end of the October 2016 hearing, the circuit court concluded that pursuant to the

terms of the PSA, it was obligated to recalculate spousal support based on the parties’ incomes.

The court further held that no evidence proved that the wife had a need for spousal support or

that the husband had the ability to pay it. The court consequently, at that time, set the amount of

spousal support at zero “to the date that Mr. Boone lost his job.”


       2
          We note that the final divorce decree and PSA are not in the record. However, the
circuit court order in this case recites the pertinent parts of the decree and PSA, and the parties
agreed below on the relevant contents of the documents. Consequently, we accept the circuit
court’s recitation. See e.g., Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771,
773 (2005) (en banc) (noting that a party can concede a fact).
                                                   -2-
          The wife filed a motion to reconsider, arguing that the circuit court could not order the

modification retroactively. On March 9, 2017, the parties again appeared before the circuit

court. On the same date, the court entered a final order, which stated that the husband’s “spousal

support obligation from October 31, 2016 forward is modified to zero.” The husband objected to

the court’s ruling setting the effective date of the modification of spousal support to the date of

the hearing and not the date of his earlier involuntary retirement.

                                            II. ANALYSIS

          The husband raises a single assignment of error on appeal. He argues that in accordance

with the terms of the PSA, his spousal support modification should have been effective as of the

date of his involuntary retirement rather than after the court recalculated it. He contends that

upon his involuntary retirement, “his spousal support obligation was independently, contractually

modified” from the original monthly $2,400 “to an uncalculated amount . . . pending judicial

recalculation.”

          On appeal of an order modifying spousal support, the circuit court’s “findings of fact are

accorded great deference[,] and its judgment will not be set aside unless plainly wrong or without

evidence to support it.” See Stroud v. Stroud, 54 Va. App. 231, 236, 677 S.E.2d 629, 631

(2009). However, a circuit court’s interpretation of a provision of a “PSA is . . . a question of

law which we review de novo.” Everett v. Carome, 65 Va. App. 177, 185, 775 S.E.2d 449, 453

(2015).

          Generally, following an award of spousal support, a circuit court may modify the award

“that may thereafter accrue . . . as the circumstances may make proper.” Code § 20-109(A).

This provision does not authorize a circuit court to “modify[] an award for support previously

accrued.” Reid v. Reid, 245 Va. 409, 414-15, 429 S.E.2d 208, 211 (1993) (holding also that a

circuit court cannot order restitution of past support).

                                                  -3-
       Code § 20-109(C) provides that if parties to divorce litigation reach an agreement on

spousal support before the entry of a final decree, the circuit court must honor the agreement.

When a PSA between parties is affirmed, ratified, and incorporated into a final divorce decree,

that decree “embodie[s] and enforce[s] . . . a negotiated agreement between the parties” and vests

the parties with “contractual right[s].” Stroud, 54 Va. App. at 236-37, 677 S.E.2d at 631

(quoting Baldwin v. Baldwin, 44 Va. App. 93, 98, 603 S.E.2d 172, 174 (2004)).

       “Support agreements that are voluntarily made by the parties are subject to the same rules

of construction applicable to contracts generally.” Id. at 237, 677 S.E.2d at 632 (quoting Goldin

v. Goldin, 34 Va. App. 95, 107, 538 S.E.2d 326, 332 (2000)). If an agreement’s terms are

“unambiguous,” a court “must ‘adhere to the plain meaning of [the] stated terms.’” Id. (quoting

Southerland v. Estate of Southerland, 249 Va. 584, 588, 457 S.E.2d 375, 378 (1995)). Similarly,

we “may not ‘read into [the agreement] language which will add to or take away from the

meaning of the words already contained therein.’” Id. at 237-38, 677 S.E.2d at 632 (alteration in

original) (quoting Southerland, 249 Va. at 590, 457 S.E.2d at 378).

       A divorce decree that incorporates, memorializes, or merges a PSA is “contractual” in

character and, therefore, is encompassed in the general rule that “vested contractual rights . . .

‘cannot be judicially modified or terminated at the unilateral request of a contract party unless

the agreement expressly authorizes such relief.’” Id. at 237, 677 S.E.2d at 632 (quoting Baldwin,

44 Va. App. at 99, 603 S.E.2d at 174). Additionally, “the moment each installment” of spousal

support “falls due and [is] unpaid it becomes a vested property right and is immune from

modification.” See Bennett v. Dep’t of Soc. Servs., 15 Va. App. 135, 144, 422 S.E.2d 458, 463

(1992); see also Richardson v. Moore, 217 Va. 422, 424, 229 S.E.2d 864, 866 (1976) (“[In] the

absence of statute, payments exacted by the original decree of divorce become vested as they




                                                -4-
accrue and the court is without authority to make any change as to past due installments.”

(alteration in original) (quoting Cofer v. Cofer, 205 Va. 834, 838, 140 S.E.2d 663, 666 (1965))).

       The husband argues that under the PSA, his involuntary retirement triggered the end of

his spousal support obligation. He suggests that consequently, a ruling in his favor would not be

a retroactive modification of spousal support.3

       The PSA stated that “in the event [the husband] involuntarily retires . . . , spousal support

shall be recalculated based upon the incomes of the parties at that time.” We hold that the PSA’s

language that “in the event” of the husband’s involuntary retirement, “spousal support shall be

recalculated based upon the incomes of the parties at that time” indicates that the support

adjustment would take effect at the time of the recalculation, not upon the contingency of the

husband’s retirement. (Emphasis added). This conclusion is the most reasonable interpretation

of the plain language in light of accepted principles of construction. The plain reading of the

PSA is consistent with the legal principle that when a payment of spousal support falls due and is

unpaid “it becomes a vested property right” of the party owed the support. See Bennett, 15

Va. App. at 144, 422 S.E.2d at 563.

       The husband’s alternative construction of the provision, namely that the amount of

support would change as of the earlier date of the retirement would be signified by other

phrasing, and a court cannot read language into a contract that is not there. See Stroud, 54

Va. App. at 237-38, 677 S.E.2d at 632. Similarly, under the husband’s interpretation of the PSA,

(1) the amount of the spousal support obligation would change immediately upon his involuntary



       3
        The husband relies on Weidlein v. Weidlein, 65 Va. App. 260, 266, 777 S.E.2d 222,
224-25 (2015), for this argument. That opinion was vacated. Weidlein v. Weidlein, 65 Va. App.
604, 779 S.E.2d 247 (2015) (en banc). The husband concedes that the provision at issue in this
case was not self-executing, meaning that he could not unilaterally change the amount of support
and court intervention was required to change the terms of the original decree. See Stroud, 54
Va. App. at 237, 677 S.E.2d at 632.
                                              -5-
retirement, and (2) the new amount of the support obligation would remain undetermined until

the recalculation was completed, presumably through later judicial determination. The

husband’s proposed interpretation is a strained construction of the PSA, not supported by its

plain language, and would lead to unworkable results. This interpretation would be inconsistent

with the logical reading of the relevant sentence in the PSA.

       For these reasons, we hold that the circuit court correctly interpreted the terms of the PSA

to require the modification of the husband’s spousal support obligation to take effect upon the

recalculation of the amount of that obligation.

                                        III. CONCLUSION

       We hold that the parties’ PSA did not provide for an automatic change in the amount of

the husband’s spousal support obligation upon his involuntary retirement; nor did it contemplate

retroactive application of a recalculation by the court. The circuit court did not err by refusing to

order a modification of spousal support retroactive to the date of the husband’s involuntary

retirement. Consequently, we affirm the order of the circuit court modifying spousal support.

                                                                                           Affirmed.




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