                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


JERRY C. PATE
                                               MEMORANDUM OPINION *
v.   Record No. 0479-96-4                          PER CURIAM
                                                 OCTOBER 1, 1996
BARBARA R. PATE, N/K/A
 BARBARA R. WILEY


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Gerald Bruce Lee, Judge
           (James R. Hart; Dixon, Smith & Stahl, on
           briefs), for appellant.

           (Paula W. Rank; Lawrence H. Bowen; Byrd,
           Mische, Bevis, Bowen, Joseph & O'Connor,
           P.C., on brief), for appellee.



     Jerry C. Pate (husband) contends the trial court erroneously

amended the final decree of divorce as it pertained to his

military retirement, erroneously computed an arrearage to include

cost of living increases, and erroneously awarded attorney's fees

to his former wife, Barbara R. [Pate] Wiley (wife).     Upon

reviewing the record and briefs of the parties, we conclude that

this appeal is without merit.   Accordingly, we summarily affirm

the decision of the trial court.   Rule 5A:27.

     "Property settlement and support agreements are subject to

the same rules of construction and interpretation applicable to

contracts generally."    Fry v. Schwarting, 4 Va. App. 173, 180,

355 S.E.2d 342, 346 (1987).   "[O]n appeal if all the evidence
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 court."   Id.

                         "Amended Decree"

     Husband contends that the trial court's order was an

extra-jurisdictional attempt to modify the terms of the final

decree more than twenty-one days after the order was entered in

violation of Rule 1:1.   In addition, husband contends the court's

order was an impermissible attempt to rewrite the parties'

agreement.
     Two years after entry of the final decree, the wife filed a

motion to interpret and enforce the terms of the existing

agreement.   The court retains jurisdiction, even after the

expiration of twenty-one days from the date the final decree was

entered, to enforce the parties' existing agreement as

incorporated in the final decree.       Rook v. Rook, 233 Va. 92,

95-96, 353 S.E.2d 756, 758 (1987).      Thus, we hold that the

husband's contention concerning jurisdiction is without merit.

     The agreement provides in paragraph 23(g) as follows:
               [Husband] agrees that [wife] is awarded
          a monetary sum equal to FORTY PERCENT (40%)
          of the disposable retired pay and costs of
          living increases if, as and when received.
          Disposable military retired pay is defined by
          the applicable laws and regulations. [Wife]
          shall receive FORTY PERCENT (40%) of the said
          disposable retired pay. To the extent that
          said portion of retired pay is not paid
          directly to [wife] by the Secretary of the
          Army or his designated agent, [husband] is


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          designated as a constructive trustee for
          [wife] . . . .

               [Husband] agrees that if there is a
          diminution, reduction or cessation of the
          amount paid to [wife] hereunder, due to an
          act or omission of [husband], he shall
          personally pay to [wife] that amount not paid
          directly to her by the United States Army
          . . . . Specifically, the election by
          [husband] of any survivor benefit plan
          benefits in the future shall not affect in
          any way [wife's] share of the military
          retired pay set forth herein.


These provisions were "ratified, affirmed, and incorporated" into

the final decree as permitted by Code § 20-109.1.      In 1993, when

the final decree was entered, husband was receiving regular

retirement pay and wife was receiving $1,478.
     The evidence proved that husband began to receive disability

retirement pay in July 1994.   Husband's election of disability

retirement reduced the amount received by wife.       Thus, the trial

judge correctly ruled that the provision of paragraph 23(g) was

implicated.

     In Owen v. Owen, 14 Va. App. 623, 419 S.E.2d 267 (1992),

under similar circumstances, we ruled as follows:
          [F]ederal law does not prevent a husband and
          wife from entering into an agreement to
          provide a set level of payments, the amount
          of which is determined by considering
          disability benefits as well as retirement
          benefits.

                 *    *    *     *    *    *      *

             The trial court correctly found that the
          guarantee/indemnification clause created a
          separate agreement between the parties to
          maintain a certain level of payments to the
          wife. The husband acknowledged that he had


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          no disability rating at the time the
          agreement was signed. . . . The lengthy
          provisions of the PSA . . . show the parties'
          clear intent to maintain a stable payment
          level. If we adopted the husband's
          interpretation of the guarantee language, the
          guarantee would be rendered virtually
          meaningless, due to potentially large-scale
          conversion of retirement benefits to
          disability benefits. Conceivably, husband's
          disability payments could eliminate
          completely the wife's benefits. Such a
          result is irrational and does not comport
          with the clear intent expressed by the
          language of the PSA.


Id. at 628-29, 419 S.E.2d at 421.

     Here, the trial court found that the terms of the agreement

and the final decree were consistent and "that the act of

electing military disability retirement pay is an act that the

husband sought that had the effect of a diminution, reducing the

amount of the military retirement pay payable to the wife."    We

agree with the trial court's interpretation of the agreement and

with its conclusion.

     Furthermore, the trial court's order enforced, but did not

amend, the terms of the parties' agreement and final decree.

Therefore, the trial court did not exceed its jurisdiction.
Rook, 233 Va. at 95-96, 353 S.E.2d at 758.

                            Arrearage

     Husband also contends that the trial court erroneously

interpreted the final decree to include cost of living increases.

The agreement and decree clearly provide for wife to receive

cost of living increases "if, as and when received."   Husband's




                                4
interpretation that $1,478 per month was a cap on wife's benefits

is not supported by the plain language of the agreement and the

decree.    Therefore, we find no error in the trial court's

calculation of the arrearage.

                           Attorney's Fees

     Under the terms of the parties' agreement, "the party who is

found to be substantially in violation of this Agreement shall

pay to the party who substantially prevails . . . reasonable

attorneys' fees . . . ."   Husband's failure to comply with

paragraph 23(g) of the agreement caused him to be substantially

in violation of the agreement.   Moreover, wife substantially

prevailed in enforcing the agreement.
     An award of attorney's fees is a matter submitted to the

sound discretion of the trial court 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).      The trial court noted that

several factual issues could have been resolved prior to the

hearing.    Based on the terms of the agreement, the number of

issues involved, and the respective abilities of the parties to

pay, we cannot say that the trial judge abused his discretion in

awarding wife $750 in attorney's fees.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                       Affirmed.




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