                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Retired Judge Hairston ∗
Argued at Salem, Virginia


JUDY LYNN HECK MONAHAN
                                          MEMORANDUM OPINION ∗∗ BY
v.   Record No. 3047-00-3              JUDGE JEAN HARRISON CLEMENTS
                                            SEPTEMBER 11, 2001
LAWRENCE KEITH MONAHAN


          FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                  Clifford R. Weckstein, Judge

          Frank W. Rogers, III (Mundy, Rogers & Frith,
          LLP, on briefs), for appellant.

          Kenneth C. King, Jr. (King Higgs & Callahan,
          on brief), for appellee.


     Judy Lynn Heck Monahan (wife) appeals from an order entered

by the trial court on November 21, 2000, declining to award her a

portion of the monthly disposable Navy retirement benefits of

Lawrence Keith Monahan (husband).   On appeal, wife contends the

trial court erred in construing the parties' postnuptial agreement

dated February 3, 1999, and the decree of divorce entered on April

9, 1999, incorporating the agreement, as an adjudication of all




     ∗
       Retired Judge Samuel M. Hairston took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
equitable rights of the parties in their marital property.

Finding no error, we affirm the decision of the trial court.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.

     The parties separated on August 15, 1994.    Husband, an active

member of the United States Navy, executed a Reserve Component

Survivor Benefit Plan election certificate on October 31, 1995,

providing a deferred annuity for wife and children.   Husband had

three options:   no participation for the wife, an immediate

annuity, or a deferred annuity.    Husband had the further choice to

base the annuity on full monthly retired pay or a reduced amount

of monthly retired pay.   In electing to provide wife the deferred

annuity benefit, husband selected to base her level of coverage on

his full monthly retired pay.   On February 3, 1999, the parties

entered into a handwritten mediation agreement, which was

subsequently typed and executed.   On February 22, 1999, the

parties executed a postnuptial agreement which embodied the

mediation agreement of February 3, 1999.   In the decree of divorce

entered on April 5, 1999, the trial court "ratified, confirmed,

adopted, incorporated, approved and expressly made a part of [the]

decree" the postnuptial and mediation agreements.   The final

sentence of the order provided that "this matter shall remain on

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the Court docket for the purpose of entering a Qualified Domestic

Relations Order."    Husband executed a second Reserve Component

Survivor Benefit Plan on August 30, 1999, indicating wife's

entitlement as former spouse.

     On December 1, 1999, a dispute arose between the parties when

wife demanded fifty percent of husband's monthly disposable Navy

retirement benefits.    Wife filed motions seeking an award of a

percentage of husband's monthly Navy retirement benefits as

provided in the postnuptial agreement and seeking enforcement in

equity of husband's contractual obligations pursuant to the

agreement.

     Paragraph 2 of the mediation agreement provided for an equal

division of marital assets which were set forth in attached

schedules.    These schedules included real, personal, and

intangible property.    Paragraph 6 of the mediation agreement

provided as follows:    "The wife shall be entitled to any statutory

entitlement under the law for the Federal Navy Benefits."

     The provision of the postnuptial agreement in controversy

provided as follows:

                  2.7 Retirement Accounts/Assets. As
             divided by the Mediation Agreement, each
             party agrees to waive all interests in any
             other real or personal property, 401K, Keogh,
             Thrift Savings plans, pension, retirement
             benefits, deferred compensation benefits,
             stocks, bonds, partnership interests or any
             other property whatsoever titled in the name
             of the other party. The Husband is entitled
             to benefits under the Reserve Component
             Survivor Benefit Plan established by law for

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          retired reservists of the United States
          Military and under which husband has selected
          option "B" for a deferred annuity, providing
          that his survivor may be entitled to an
          annuity upon the death of Husband, together
          with an identification card authorizing
          medical care, in accordance with the terms
          and conditions of the Reserve Component
          Survivor Benefit Plan. The parties shall
          execute the Qualified Domestic Relations
          Order for wife's entitlement to any statutory
          entitlement of wife under law for the Federal
          Navy Benefits.

     Wife argued to the trial court that the parties intended an

equal division of marital property, of which husband's federal

Navy benefits were a part.   The federal Navy benefits had two

components, she asserted:    the survivor annuity benefit

specifically mentioned in paragraph 2.7 of the postnuptial

agreement and husband's monthly disposable retirement pay.     Wife

argued that she was entitled to fifty percent of the retirement

pay and that her entitlement to that pay was to be incorporated

in the qualified domestic relations order provided for in

paragraph 2.7 of the postnuptial agreement and reserved for

entry by the trial court's order of April 5, 1999.    In the

alternative, wife requested that the trial court enforce the

parties' contractual agreements in equity and direct husband to

endorse an order equally dividing the monthly disposable

retirement pay as her contractual right.

     Husband argued the agreement fully determined the equitable

distribution rights of the parties.     Paragraph 2.7 of the

postnuptial agreement, he asserted, specifically set forth the

                                - 4 -
Navy retirement benefits to which wife was entitled and the only

jurisdiction reserved was for entry of the qualified domestic

relations order.    The trial court, husband contended, no longer

had jurisdiction to consider wife's request for further

equitable distribution more than twenty-one days after entry of

the final order adjudicating the rights of the parties.

     The trial judge, in denying wife's motions, ruled:

            Approximately a year after the entry of that
            unappealed decree, Mrs. Monahan asks the
            Court to enter a decree (which she would
            call a Qualified Domestic Relations Order,
            or QDRO), which would add to the parties'
            contract executory provisions that parties
            did not make. In the guise of
            interpretation, the trial judge would be
            making the parties speak words they never
            spoke, would be making a contract that they
            did not make.

This appeal followed.

     On appeal, wife contends the trial court erred in ruling

that the parties' postnuptial agreement did not provide her an

entitlement to husband's monthly disposable Navy retirement

benefits.

     "Property settlement agreements are contracts subject to

the same rules of formation, validity, and interpretation as

other contracts."    Bergman v. Bergman, 25 Va. App. 204, 211, 487

S.E.2d 264, 267 (1997).   Contract provisions are not ambiguous

"merely because the parties disagree as to the meaning of the

language employed by them in expressing their agreement."

Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398

                                - 5 -
(1984).   Whether a contract provision is ambiguous is a matter

of law, not of fact.    Id.   "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).

                "It is the function of the court to
           construe the contract made by the parties,
           not to make a contract for them. The
           question for the court is what did the
           parties agree to as evidenced by their
           contract. 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."

Wilson, 227 Va. at 187, 313 S.E.2d at 398 (quoting Meade v.

Wallen, 226 Va. 465, 467, 311 S.E.2d 103, 104 (1984)).    "A

corollary to the last stated principle is that courts cannot

read into contracts language which will add to or take away from

the meaning of the words already contained therein."     Id.

     Here, paragraph 2 of the mediation agreement provided for

an equal division of those marital properties set forth in the

attached schedules.    The schedules included real, personal, and

intangible property.   In paragraph 6 of the mediation agreement,

the parties recognized wife was entitled to Navy benefits

without specifying what those benefits were or what her

proportional entitlement would be.



                                 - 6 -
     In the postnuptial agreement, which incorporated the

mediation agreement, the provisions for division of the parties'

property were set forth in separate, identified paragraphs.

Paragraph 2.7, entitled "Retirement Accounts/Assets," provided

that, "[a]s divided by the Mediation Agreement, each party

agrees to waive all interests in any other . . . retirement

benefits."   It then provided that husband was entitled to

benefits under the Reserve Component Survivor Benefit Plan and

that, under that plan, wife was entitled to medical care

benefits and a deferred annuity benefit based on husband's full

monthly retired pay.   The final sentence of paragraph 2.7

obligated the parties to execute "the Qualified Domestic

Relations Order" for wife's entitlement to the Navy benefits.

(Emphasis added).   In addition to the waiver of all interests in

other retirement benefits set forth in paragraph 2.7, other

paragraphs of the postnuptial agreement stated that all matters

in dispute had been settled with a mutual release of claim to

other marital property.

     We conclude, therefore, that the contract is not ambiguous.

The problem here is not that there was uncertainty as to the

language by which the parties expressed their agreement.

Rather, "the uncertainty sprang from their difference of opinion

as to the meaning of the provision."   See Manss-Owens Co. v.

Owens & Son, 129 Va. 183, 197, 105 S.E. 543, 547 (1921).     To

rule as wife has requested would add to the meaning of the words

                               - 7 -
already contained in the contract and take away from the meaning

of the words of the contract construed from its four corners as

written.    We hold the trial court did not err in its

interpretation of the parties' postnuptial agreement and that

the agreement, incorporated in the divorce decree, was an

adjudication of all equitable rights of the parties in their

marital property, including wife's entitlement to husband's Navy

retirement benefits.

     Finally, we note that the trial court's decree of divorce

merely reserved jurisdiction to enter a qualified domestic

relations order to effectuate wife's benefit provided in the

postnuptial agreement and incorporated in the final decree, as

permitted in Code § 20-107.3(K)(4).     "Equitable distribution

orders become final within twenty-one days of entry."     Wilson v.

Wilson, 25 Va. App. 752, 757, 492 S.E.2d 495, 497-98 (1997); see

Rule 1:1.   Code § 20-107.3(K)(4) permits modification of a final

order by subsequent order only to establish or maintain the

final order as a qualified domestic relations order or to

achieve the expressed intent of the final order.     See Fahey v.

Fahey, 24 Va. App. 254, 257, 481 S.E.2d 496, 497 (1997).     Thus,

we hold the trial court was without authority to substantively

modify the original order equitably distributing husband's Navy

benefits, even if the parties had agreed to do so subsequently.




                                - 8 -
"The jurisdiction of the court cannot be established by

consent."   Wilson, 25 Va. App. at 758, 492 S.E.2d at 498.

     Accordingly, we affirm the decision of the trial court.

                                                          Affirmed.




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