                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


SHARON LUANNE WALKER
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1872-99-2               JUDGE SAM W. COLEMAN III
                                              JULY 11, 2000
CHARLES R. PFEIFFER


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Theodore J. Markow, Judge

          Lori A. Rinaldi (Bruce E. Arkema; Cantor,
          Arkema & Edmonds, P.C., on briefs), for
          appellant.

          S. Keith Barker (S. Keith Barker, P.C., on
          brief), for appellee.


     This appeal involves the construction and enforcement of a

covenant in the parties' Separation and Property Settlement

Agreement dealing with their jointly-owned time share.     The

covenant concerned how the parties would pay and be responsible

for the mortgage on the time share and how they would ultimately

liquidate the property and distribute the assets.     The pertinent

provision of the Agreement provided as follows:


     ∗
       Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
          The parties agree that the Voyager Beach
          Club time share financed by loan account no.
          2500202-0070 will be listed and sold by them
          for $9,000.00, and any net proceeds or
          shortfall will be income or funded by wife
          solely, and she agrees to save and hold
          harmless husband for any liability on any
          loan or advance of monies for the purchase
          or financing of the payment of the time
          share. Husband will make the monthly
          payments on the time share and any annual
          assessments, from the date of this
          agreement; the parties agree that while the
          time share is being marketed it shall be
          rented by the Voyager Beach Club management
          and the proceeds shall be applied by them
          toward the monthly payments which accrue
          after this agreement or shall be the
          property of husband in an amount not to
          exceed the monthly payments on the time
          share he has paid, and the balance of any
          excess beyond what husband has so paid, if
          any, shall be the property of the wife.

     The trial court construed the covenant to require that

Sharon Luanne Walker, the former wife, reimburse Charles R.

Pfeiffer, her former husband, $4,872.58 for mortgage payments he

made on the time share plus interest at the statutory rate from

January 2, 1996, plus costs.   The court further ordered that the

parties list the time share for sale for $9,000, "or for such

other amount as they may agree."   The court denied Pfeiffer's

request for reimbursement of the payment for the annual

assessments on the time share and denied both parties' requests

for attorney's fees.

     On appeal, Walker argues that the trial court erred in:

(1) determining that it had jurisdiction; (2) ordering her to


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reimburse Pfeiffer $4,872.58 for mortgage payments he made;

(3) ordering her to pay interest on the sum from January 2, 1996,

and costs; and (4) ordering the parties to sell the time share for

$9,000 or "for such other amount as they may agree."     Pfeiffer

cross-appeals, arguing that the court erred by failing to order

Walker to reimburse him for the annual assessments paid on the

time share and by failing to order Walker to pay attorney's fees.

     We find that the trial court retained jurisdiction and that

the "save and hold harmless" clause is unambiguous and requires

Walker to reimburse Pfeiffer for mortgage payments made on the

time share.   We further find that the "save and hold harmless"

clause does not require Walker to reimburse Pfeiffer for the

annual assessments he made.      We also find that the award of

prejudgment interest and costs and the denial of attorney's fees

was not an abuse of discretion.     Accordingly, we affirm the

foregoing rulings of the trial court construing the separation

agreement.    However, we find that the trial court erred by

construing the covenant to require that the parties list the time

share for sale "for such other amount as they may agree," and we

reverse and vacate that portion of the order.

                            I.    BACKGROUND

     The parties were divorced by decree dated October 17, 1990,

that affirmed, ratified, and incorporated the Separation and




                                 - 3 -
Property Settlement Agreement which included the foregoing

covenant concerning the Voyager Beach Club time share.

        From 1990 through 1999, the time share was never listed for

sale.    In 1999, Pfeiffer filed a motion to hold Walker in contempt

of court for failure to comply with the provision in the

separation agreement to "save and hold harmless [Pfeiffer] for any

liability on any loan or advance of monies for the purchase or

financing of the payment of the time share" and the provision that

purportedly required her to market and sell the time share.

Walker responded, asserting that the court lacked jurisdiction

because the divorce decree was final and any further construction

or enforcement of the Separation Agreement was not a part of the

divorce action.

        After a hearing, the trial judge found that the court

retained jurisdiction to enforce the order by a contempt

proceeding, which required the court to construe the separation

agreement.    The court ruled, however, that Walker was not in

contempt of the court's order.    The trial judge found that

although the terms of the agreement required that the time share

be listed and sold, Walker did not bear sole responsibility for

the default in having the property sold.    The court further held

that the provision in the separation agreement was unambiguous and

obligated Walker to reimburse Pfeiffer for the mortgage payments

he had made on the time share after the divorce decree was


                                - 4 -
entered.   Walker argued that the covenant only required her to pay

or be responsible for any outstanding mortgage payments or balance

owing when the time share was sold, which was when she would be

entitled to "the balance of any excess beyond what husband has so

paid."   The trial judge found that, under the terms of the

agreement, Pfeiffer was not entitled to reimbursement of the

annual fees paid by him for the time share.   The trial judge

ordered that the parties list the time share for sale for $9,000,

or "for such other amount as they may agree which is reasonably

calculated to produce a sale."   The trial court denied both

parties' requests for attorney's fees.

                           II.   ANALYSIS

                          A.   Jurisdiction

     Walker asserts that although the court retains jurisdiction

to enforce its decrees, the court lacked jurisdiction to interpret

and amend the separation agreement.    Walker argues that Rule 1:1

bars the trial court from amending or modifying the separation

agreement because more than twenty-one days have elapsed after the

final divorce decree was entered.

     It is well settled that court orders become final twenty-one

days after entry.   See Rule 1:1.   However, a trial court retains

jurisdiction to construe and enforce a final divorce decree that

has incorporated a property settlement and separation agreement.

See Gloth v. Gloth, 154 Va. 511, 548-51, 153 S.E. 879, 891-92


                               - 5 -
(1930) (stating that a trial court has jurisdiction in a divorce

suit to enforce the terms of a settlement agreement when it

incorporates them in its decree); see also McLoughlin v.

McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970) (stating

that prior to the enactment of Code § 20-109.1, the incorporation

of a settlement agreement "meant the court could use its contempt

power to enforce the agreement"); Casilear v. Casilear, 168 Va.

46, 55, 190 S.E. 314, 316-17 (1937) (stating that a trial court

retains jurisdiction after a final decree of divorce to enforce

agreements between the parties).   The Supreme Court stated in

McLoughlin, 211 Va. at 368 n.1, 177 S.E.2d at 783 n.1, that a

divorce court may incorporate a property settlement agreement in a

final divorce decree and may thereafter construe and enforce the

decree through its contempt power and the enactment of Code

§ 20-109.1 merely facilitated the existing power of a court to

enforce an incorporated agreement.     Accordingly, we find that the

trial court had jurisdiction to enforce the separation agreement.

                      B.   Separation Agreement

             1.   Reimbursement for Mortgage Payments

     We next consider whether the trial court erred by requiring

Walker to reimburse Pfeiffer for the mortgage payments he had made

on the time share.   Walker argues that the provision that she

"agrees to save and hold harmless husband for any liability on

any loan or advance of monies for the purchase or financing of


                               - 6 -
the payment of the time share" does not require that she

reimburse Pfeiffer for the mortgage payments he had made on the

time share.    Rather, she contends that the provision requires

only that she hold Pfeiffer harmless for any liability remaining

on the loan when the time share is sold.    We disagree.

     "Property settlement agreements are contracts; therefore, we

must apply the same rules of interpretation applicable to

contracts generally."   Tiffany v. Tiffany, 1 Va. App. 11, 15, 332

S.E.2d 796, 799 (1985).    "Where the agreement is plain and

unambiguous in its terms, the rights of the parties are to be

determined from the terms of the agreement and the court may not

impose an obligation not found in the agreement itself."    Jones v.

Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764 (1994)

(citation omitted).    "A contract term is not ambiguous merely

because the parties disagree as to the term's meaning."    Bergman

v. Bergman, 25 Va. App. 204, 211, 487 S.E.2d 264, 267 (1997).

"The question of whether a writing is ambiguous is not one of fact

but of law."   Langman v. Alumni Ass'n of the Univ. of Virginia,

247 Va. 491, 498, 442 S.E.2d 669, 674 (1994) (citation omitted).

"Thus, we are not bound by the trial court's conclusions on this

issue, and we are permitted the same opportunity as the trial

court to consider the contract provisions."   Tuomala v. Regent

University, 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996)

(citations omitted).


                               - 7 -
     We hold that the phrase, "and [Walker] agrees to save and

hold harmless [Pfeiffer] for any liability on any loan or advance

of monies for the purchase or financing of the payment of the time

share[,]" is not ambiguous.   Because no ambiguity in the terms of

the agreement exists, "we are not at liberty to search for the

meaning of the provisions beyond the pertinent instrument itself."

Smith v. Smith, 3 Va. App. 510, 514, 351 S.E.2d 593, 596 (1986)

(citations omitted).   The language of the covenant requires that

Walker will reimburse Pfeiffer for payments he made on the loan

for the purchase or financing of the time share.   The language

expressly provides that Walker will "save and hold harmless"

Pfeiffer for "any liability on any loan or advance of monies for

the purchase or financing of the payment of the time share."   The

purpose of the provision is clear.    The wife would receive the

proceeds from the sale of the time share; however, she would be

required to reimburse Pfeiffer or "save and hold [him] harmless"

for any mortgage payments that he had made on the property.

Nothing in the language of the "save and hold harmless" clause

requires that Pfeiffer wait until the property is sold to recover

or seek reimbursement for the mortgage payments.   Thus, the trial

court did not err by construing the agreement to require Walker to

reimburse Pfeiffer $4,872.58, the amount Pfeiffer had expended in

mortgage payments, less the amount of rent received.




                              - 8 -
                         2.   Interest and Costs

     Walker argues that the trial court erred in assessing

interest on the judgment amount from January 2, 1996, and erred in

assessing court costs.    She contends the separation agreement does

not provide for payment of interest or costs and that January 2,

1996 is an arbitrary date, which has no relation to the events in

this case.    She argues that in the absence of a contractual

provision providing for interest, the court cannot assess

interest.

     Code § 8.01-382 provides, in pertinent part, that:

             [i]n any action at law or suit in equity,
             the verdict of the jury, or if no jury the
             judgment or decree of the court, may provide
             for interest on any principal sum awarded,
             or any part thereof, and fix the period at
             which the interest shall commence. The
             judgment or decree entered shall provide for
             such interest until such principal sum be
             paid. If a judgment or decree be rendered
             which does not provide for interest, the
             judgment or decree awarded shall bear
             interest from its date of entry . . . .

The award of prejudgment interest is a matter committed to the

sound discretion of the trier of fact.     See Marks v. Sanzo, 231

Va. 350, 356, 345 S.E.2d 263, 267 (1986) (stating that "whether

interest should have been awarded and, if so, from what date

interest should run, were matters within the sound discretion of

the chancellor"); see also Ragsdale v. Ragsdale, 30 Va. App. 283,

292, 516 S.E.2d 698, 702 (1999).




                                 - 9 -
            "The award of prejudgment interest is to
            compensate Plaintiff for the loss sustained
            by not receiving the amount to which he was
            entitled at the time he was entitled to
            receive it, and such award is considered
            necessary to place the [plaintiff] in the
            position he would have occupied if the party
            in default had fulfilled his obligated
            duty."

Marks, 231 Va. at 356, 345 S.E.2d at 267 (quoting

Employer-Teamsters Joint Council No. 84 v. Weatherall Concrete,

Inc., 468 F. Supp. 1167, 1171 (1979)).

     Here, we find no abuse of discretion in the trial court's

award of prejudgment interest.    As the trial court noted, the

separation agreement contemplated that the time share would be

marketed and sold much earlier, probably before the mortgage was

retired.   However, the mortgage payments were paid in full by

Pfeiffer before the property was sold.    Accordingly, because the

separation agreement provided that Walker would reimburse Pfeiffer

for the mortgage payments and Pfeiffer has satisfied the debt in

full, the award of interest was not an abuse of discretion since

it compensated Pfeiffer for the debt from the date incurred.

Moreover, the trial court did not abuse its discretion by

arbitrarily fixing the date from which the interest should run

from January 2, 1996, a date after which Pfeiffer had paid the

entire loan.

     A court of equity has "discretion . . . over the subject of

costs."    Code § 17.1-600.   "[I]n the exercise of this discretion


                               - 10 -
the [court] should award costs in favor of the party or parties

'substantially prevailing.'"    McLean v. Hill, 185 Va. 346, 351, 38

S.E.2d 583, 586 (1946) (interpreting former Code § 14.1-177)

(citations omitted).   Here, although not finding that Walker was

solely responsible for the default, the trial court found that

Pfeiffer, who instituted the show cause proceeding, was entitled

to reimbursement of the funds expended to pay the mortgage

payments.   See Smith v. Woodlawn Constr. Co., 235 Va. 424, 431,

368 S.E.2d 699, 703 (1988) (holding it to be an abuse of

discretion if costs are not awarded to the party substantially

prevailing below).   Accordingly, we find that the award of costs

to Pfeiffer, the party substantially prevailing below, was not an

abuse of discretion.

                       3.   Sale of Time Share

     Last, Walker argues that the trial court erred in ordering

the parties to list the time share for sale at $9,000 or "for such

other amount as they may agree which is reasonably calculated to

produce a sale."   She contends that the court's order is a

modification of the terms of the separation agreement, which

unequivocally provided that the parties would list and sell the

property only if it sold for at least $9,000.

     We find that the phrase "for such other amount as they may

agree which is reasonably calculated to produce a sale" contained

in the court's order is a modification of the separation


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agreement.   Although the language of the agreement contemplates

that the time share may be sold for less than $9,000 by providing

that any shortfall from the sale of the property in which the

proceeds do not produce an amount sufficient to pay the mortgage

balance be funded by Walker, the trial court erred in ordering the

parties to list the property for sale for less than $9,000.     But

cf. Stanley's Cafeteria, Inc. v. Abramson, 226 Va. 68, 72, 306

S.E.2d 870, 873 (1983) (stating that "[c]ontracting parties may

. . . modify the terms of their contract by express mutual

agreement").   Therefore, even though the shortfall provision and

the parties' correspondence envision that the property may sell

for less than the $9,000 listing price, unless the parties

mutually agree to modify the terms of the separation agreement

which provides that the property is to be listed for $9,000, they

cannot be otherwise compelled to do so.     See Stanley's Cafeteria,

226 Va. at 73, 306 S.E.2d at 873.      Accordingly, we find that the

trial court erred by construing the agreement to compel the

parties to sell the time share for less than $9,000.     Thus, we

reverse and vacate that portion of the order that required the

parties to list and sell the property "for such other amount as

they may agree which is reasonably calculated to produce a sale."

       4.    Reimbursement For Payment of Annual Assessments

     In his cross-appeal, Pfeiffer argues that the trial court

erred in finding that he was not entitled to reimbursement for the


                              - 12 -
annual fees paid on the time share.   He argues that the annual

assessments were part of the "payment of the time share" and

because the "save and hold harmless" clause required that he be

held harmless for the payments, he was entitled to reimbursement

of these expenses.

     We find that the "save and hold harmless" clause does not

require Walker to reimburse Pfeiffer for the annual assessments

paid on the time share.   The term "payments" is unambiguous in

this case and, according to its plain meaning, the term applies

only to the mortgage payments.   "When the terms of a disputed

provision are clear and definite, it is axiomatic that they are to

be applied according to their ordinary meaning."   Smith, 3 Va.

App. at 514, 351 S.E.2d at 595-96 (citation omitted).    In common

usage, "payment" is "something that is given to discharge a debt

or obligation."   Webster's Third New International Dictionary 1659

(1981).   The annual assessments include the costs for maintenance,

upkeep and cleaning, taxes and insurance, and replacement costs.

Thus, because the "save and hold harmless" clause only requires

repayment of the advance of monies for the purchase or financing

of the time share, which does not encompass the annual

assessments, the "save and hold harmless" clause is not applicable

to annual assessments.




                             - 13 -
                         5.    Attorney's Fees

     Pfeiffer argues that the trial court erred in denying his

request for attorney's fees.      Pfeiffer asserts that Walker's

unwillingness to market and sell the time share was willful and

unjustified.

     A trial court's denial of attorney's fees is reviewed only

for abuse of discretion.      See Head v. Head, 24 Va. App. 166, 181,

480 S.E.2d 780, 788 (1997).     Here, the trial court found that

Walker was not solely responsible for the default and failure to

market and sell the time share.     The trial court noted "[t]he

problem is that these people refuse to cooperate to accomplish a

task which is mutually beneficial."      We find no abuse of

discretion in the trial court's denial of attorney's fees.

Additionally, we deny Pfeiffer's request for attorney's fees on

appeal.

                           III.    CONCLUSION

     In summary, we find the trial court retained jurisdiction to

construe and enforce the separation agreement that was ratified

and incorporated in its final divorce decree; the separation

agreement was unambiguous and obligated Walker to reimburse

Pfeiffer for the mortgage payments he made on the time share after

the divorce decree was entered; and Pfeiffer was not entitled to

reimbursement for the annual assessment fees paid by him for the

time share.    Further, we find that the trial court did not err by


                                - 14 -
denying Pfeiffer's request for attorney's fees or ordering Walker

to pay interest on the judgment and to pay costs.   Accordingly, we

affirm the trial court's order with respect to those issues.

However, we find that the trial court erred by ordering the

parties to list the time share for sale "for such other amount as

they may agree which is reasonably calculated to produce a sale"

and, therefore, we reverse and vacate that portion of the trial

court's order.

                                             Affirmed, in part;
                                             reversed and
                                             vacated, in part.




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