                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Malveaux and Senior Judge Annunziata
UNPUBLISHED


              Argued at Alexandria, Virginia


              MICHAEL PAUL JONES
                                                                            MEMORANDUM OPINION BY
              v.     Record No. 1950-18-4                                    JUDGE WILLIAM G. PETTY
                                                                                   JULY 2, 2019
              BRENDA J. JONES


                                   FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                                               Jeffrey W. Parker, Judge

                               Ann M. Callaway (Ann M. Callaway, P.C., on brief), for appellant.

                               T. Huntley Thorpe, III (Karen E. Hedrick; Gulick, Carson & Thorpe,
                               P.C., on brief), for appellee


                     Finding no error in the trial court’s interpretation of the 1993 property settlement

              agreement at issue in this case, we affirm and remand for determination of reasonable attorney’s

              fees awarded to former wife.

                                                      I. BACKGROUND

                     Given our resolution of this case, the relevant facts may be succinctly stated. “When

              reviewing a trial court’s decision on appeal, we view the evidence in the light most favorable to

              the prevailing party, granting it the benefit of any reasonable inferences.” Congdon v. Congdon,

              40 Va. App. 255, 258 (2003).

                     Michael Paul Jones (former husband) and Brenda J. Jones (former wife) were married in

              1969 and were divorced in 1993. A property settlement agreement, also dated 1993, was




                        Pursuant to Code § 17.1-413, this opinion is not designated for publication.
affirmed, ratified, and incorporated into the final decree (PSA). The relevant paragraph of the

PSA states,

               7. RETIREMENT AND DISABILITY BENEFITS:
                        The parties agree that the Husband currently receives
               $1,497.00 per month from the Virginia Worker’s [sic]
               Compensation Commission and the Fairfax County government
               for a lump disability-retirement payment. Said amount is not
               taxable and shall continue for the life of the Husband. Beginning
               the first day of each month following the date of this Agreement
               and continuing on the first day of each month thereafter the
               Husband shall pay to the Wife one-half of such monthly benefit.
               In the event the Wife remarries, the Husband’s obligations
               hereunder shall cease.

Former husband was injured while working for Fairfax County in 1984. At that time, he began

receiving workers’ compensation payments for his injury. Former husband knew that the

payments were initially being paid through the Workers’ Compensation Commission for 500

weeks. When the workers’ compensation payments ended, the payments would then come from

the county as disability retirement pay. As of the time of divorce in 1993, the payments had

remained constant at $1,497 for approximately nine years. Upon divorce, former husband paid

former wife $750 each month as her portion of the benefit.

       The PSA also provided that former wife waived spousal support and would “execute an

interest free promissory Note” for former husband’s equity in the marital residence, which would

be paid upon former wife selling the house or receiving an inheritance from her parent.

       In December 1994, former husband received a letter stating that he was nearing the end

of his 500 weeks of workers’ compensation payments. He was told that when those expired and

the payments began being issued by the county as disability retirement, his monthly payment

would increase and would also be subject to cost of living adjustments. He did not notify former

wife of the increase, but rather kept paying $750 per month. In 2012, former husband was

receiving $3,405.46 as his disability-retirement payment. He still had not notified former wife

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that the benefit had increased. However, former husband learned that he was required to apply

for Social Security because he had turned seventy years old. He learned that his Social Security

benefit would require a reduction of $300 in his disability-retirement payment. Former husband

contacted former wife and notified her that his benefit was being reduced by $300 and asked her

to accept a reduction of half that amount, $150, in his $750 monthly payments to her. Wife

expressed willingness to accept the reduction, but requested current payment advice, to confirm

the amount.1 Former husband testified he did not want former wife to know what he was

receiving, so he did not provide her with documentation and did not pursue a reduction in

payment.

       In 2017, wife received an inheritance from her parent that allowed her to pay the $75,000

owed to former husband. She contacted an attorney to handle the payment. Former wife had

been receiving $750 from former husband for twenty-five years, and her attorney asked if

husband had been getting cost of living adjustments on his retirement pay. Former wife had no

knowledge of cost of living adjustments and sent a letter to husband requesting a current pay

advice. In response, former husband suggested that she keep the $75,000 in exchange for

discontinuing the $750 per month payments. Former wife did not learn of the cost of living

adjustments to the monthly disability retirement payments until the records were produced

during discovery. Former wife argued to the trial court that she was entitled to one-half the

monthly payment, regardless of the amount, and former husband had therefore underpaid her.

Former husband argued that she was entitled to $750 per month and no more. The trial court

found in former wife’s favor, and this appeal followed.




       1
        A payment advice is “a formal or official notice sent by one person or office to another
concerning a business transaction.” Advice, Webster’s Third International Dictionary (2002).
                                               -3-
                                          II. ANALYSIS

       “On appeal, [this] Court reviews a trial court’s interpretation of a contract de novo.”

Allen v. Allen, 66 Va. App. 586, 595 (2016) (alteration in original) (quoting Plunkett v. Plunkett,

271 Va. 162, 166 (2006)). “In construing the terms of a property settlement agreement, just as in

construing the terms of any contract, [this Court is] not bound by the trial court’s conclusions as

to the construction of the disputed provisions.” Id. (alterations in original) (quoting Smith v.

Smith, 3 Va. App. 510, 513 (1986)). “[I]f all the evidence which is necessary to construe a

contract was presented to the trial court and is before the reviewing court, the meaning and effect

of the contract is a question of law which can readily be ascertained by this [C]ourt.” Id.

(alterations in original) (quoting Fry v. Schwarting, 4 Va. App. 173, 180 (1987)).

       “When a contract is clear and unambiguous, it is the court’s duty to interpret the contract,

as written.” Stacy v. Stacy, 53 Va. App. 38, 43 (2008) (alteration omitted) (quoting Palmer &

Palmer Co. LLC v. Waterfront Marine Constr., Inc., 276 Va. 285, 289 (2008)). “When a

contract is ambiguous, however, a court should resort to parol evidence to ascertain the true

intention of the parties.” Aetna Cas. and Sur. Co. v. Fireguard Corp., 249 Va. 209, 215 (1995).

“Contract language is ambiguous when it may be understood in more than one way or when it

refers to two or more things at the same time. However, a contract is not ambiguous merely

because the parties disagree as to the meaning of the terms used.” Robinson-Huntley v. George

Washington Carver Mut. Homes Ass’n, Inc., 287 Va. 425, 429 (2014) (quoting Eure v. Norfolk

Shipbuilding & Drydock Corp., 263 Va. 624, 632 (2002)).

       Here, the PSA paragraph is ambiguous because the operational language “may be

understood in more than one way.” See id. We agree with the trial court that the first two

sentences of the paragraph addressing the disability-retirement payments are informational, and

the third sentence is the operational one. The third sentence states, “Beginning the first day of

                                                -4-
each month following the date of this Agreement and continuing on the first day of each month

thereafter the Husband shall pay to the Wife one-half of such monthly benefit.” The agreement

is clear that former wife is entitled to one-half of the referenced monthly benefit, but it is unclear

as to what “such monthly benefit” is. Former husband argues “such monthly benefit” refers to

the specific amount of $1,497 per month which he “currently receive[d]” when the PSA was

signed. Former wife argues that “such monthly benefit” refers to the payment received by

former husband “from the Virginia Worker’s [sic] Compensation Commission and the Fairfax

County government for a lump disability-retirement payment,” regardless of the amount of the

payment. We agree, as did the trial court, with former wife.

       Both the wording of the section and the parties’ actions indicate that the intent of the

parties was for former wife to receive one-half of the disability-retirement payment. The

wording of the section describes the benefit as being “currently” $1,497. At the time of the

divorce, the payments had remained the same for roughly nine years. Had the parties intended a

fixed amount, they could have simply stated that wife would receive $750. In the alternative, the

parties could have said she was to receive one-half such amount. Instead, the parties described

the benefit and then said wife was to receive one-half such monthly benefit. The language

therefore indicated that it was the benefit, and not the amount, that was to be divided.

       Moreover, the parties’ actions supported this interpretation. When husband learned that

his benefit would be decreased by $300, he asked former wife to share in the decrease. The fact

that former husband asked for the decrease and that former wife was willing to consider it upon

production of the pay advice shows that both parties believed that wife was to receive half the

benefit rather than a specific sum. Husband’s reluctance to show wife how much he was

receiving also indicates that he believed she would expect more if she knew his payments had

increased. Finally, when former wife requested a copy of the pay advice, former husband

                                                 -5-
offered to allow her to keep the $75,000 in exchange for discontinuing the payments. We can

infer that this offer was intended to keep former wife from seeking further information on his

cost of living adjustments because he feared she would request half the total benefit he received.

                                        III. CONCLUSION

       We agree with the trial court that the PSA granted former wife one-half the monthly

disability-retirement benefits received by former husband. Accordingly, former husband’s four

assignments of error are quickly resolved. Former husband argues that the parties could not have

intended the cost of living adjustments to be included in the benefit because neither party “knew

of the existence of, or possibility of, such increases in the future.” This argument has no merit.

The agreement was for one-half the monthly benefit, whether it increased due to unexpected cost

of living adjustments or decreased due to unexpected Social Security adjustments. Second,

former husband argues the trial court’s ruling “was contrary to Code § 20-107.3(K)(4) because”

the increase was “inconsistent with the parties’ express language in the [PSA].” This argument

has no merit. The trial court’s interpretation of the paragraph is consistent with, not contrary to,

the PSA. Third, former husband argues that the trial court modified the divorce decree “more

than twenty-one days after its entry,” which was “contrary to the provisions of Rule 1:1.” This

argument has no merit. The trial court made no modification to the divorce decree. The trial

court interpreted the paragraph of the existing decree in order to address former wife’s motion to

enforce the paragraph. See Stacy, 53 Va. App. at 43 (“[A] trial judge [is required] to examine

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

within the terms of the agreement.” (quoting Rutledge v. Rutledge, 45

Va. App. 56, 63 (2005))).

       Last, former husband argues that the trial court erred in finding the parties intended

former wife to receive cost of living adjustments because she did not attempt to collect them for

                                                -6-
more than twenty-five years. This argument has no merit. Promptly upon discovering that the

retirement-disability payments had not remained fixed, former wife attempted to collect the

portion of the benefit that had not been paid to her. The fact that she was not anticipating a

change in the amount does not negate her entitlement to one-half of whatever the

retirement-disability payment was.

       Accordingly, we affirm. We grant former wife’s request for attorney’s fees for this

appeal and remand to the trial court for determination of an appropriate award of fees.

                                                                           Affirmed and remanded.




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