                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


IAN KENNETH ACKERMAN
                                          MEMORANDUM OPINION * BY
v.   Record No. 1478-01-2                JUDGE SAM W. COLEMAN III
                                               JUNE 11, 2002
CAROL MICHELLE PFEIFFER, N/K/A
 CAROL M. ALLEN


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                   Paul M. Peatross, Jr., Judge

          Patricia M. Brady for appellant.

          Deborah S. O'Toole (Cowan & Owen, P.C., on
          brief), for appellee.


     Ian Kenneth Ackerman, husband, appeals a decision of the

trial judge to enter an amended Qualified Domestic Relations Order

(QDRO) dividing the TIAA-CREF retirement benefits account of Carol

Michelle Pfieffer, now known as Carol M. Allen, wife. 1   The

primary issue on appeal is whether the trial judge erred in

finding that the parties intended the "marital share" of the

retirement account to exclude the earnings on the pre-marital


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       In his opening brief, husband presents arguments regarding
the amended QDRO for the VALIC account. However, the amended
QDRO for the VALIC account was entered on March 13, 2001.
Husband's notice of appeal indicates that he is appealing the
QDRO and final order which were both entered on May 7, 2001.
Therefore, we will not consider the arguments concerning the
amended VALIC QDRO.
principal.    Husband further contends the trial judge erred in

failing to award him attorney's fees.      We affirm the decisions of

the trial judge.

                              BACKGROUND

             Under familiar principles we view [the]
             evidence and all reasonable inferences in
             the light most favorable to the prevailing
             party below. Where, as here, the court
             hears the evidence ore tenus, its finding is
             entitled to great weight and will not be
             disturbed on appeal unless plainly wrong or
             without evidence to support it.

Martin v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App. 15,

20, 348 S.E.2d 13, 16 (1986).

     Husband and wife married in 1992.      In 1999, the parties

separated, and on June 26, 1999, they entered into a property

settlement agreement (PSA) drafted by husband.     Neither party was

represented by counsel at the time they entered into the PSA.      In

early 2000, the parties signed an amendment to the PSA (amended

agreement), which was drafted by wife's attorney.

     The PSA contained the following paragraph regarding the

division of the parties' retirement accounts.

             It is mutually agreed that the marital
             portion of both retirement accounts
             ([wife]'s TIAA-CREF account and [husband]'s
             VALIC account) will be divided equally. The
             marital portion is defined as all
             accumulations (employee and employer
             contributions, interest and earnings) from
             the beginning of marriage (June 13, 1992)
             through the date of separation (June 24,
             1999).


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Paragraph C of the amended agreement provides, in part:

          Pension and Retirement Accounts: The
          parties agree that [husband] shall be
          entitled to 1/2 of the marital share of
          [wife]'s TIAA-CREF retirement account,
          including contributions and earnings on the
          marital share accrued from the date of the
          marriage until the date of the final
          separation of the parties, June 24, 1999.
          [Wife] shall be entitled to 1/2 of the
          marital share of [husband]'s VALIC
          retirement account including contributions
          and earnings on the marital share accrued
          from the date of marriage until the date of
          the final separation of the parties less
          $15,000.

     On March 22, 2000, the trial judge entered two QDROs

dividing the parties' retirement accounts.   Both QDROs were

endorsed by husband without objection.   After entry of the

QDROs, VALIC requested a signed certification from the parties

acknowledging the actual date of division of the account because

the May 22, 2000 QDRO contained conflicting dates of separation

of the parties.   Husband refused to sign an acknowledgment, and

wife filed a motion for entry of an amended QDRO directing

division of the VALIC pension funds.

     Husband filed a response to wife's motion, stating that he

refused to cooperate with the division of the VALIC funds until

the QDRO providing for the division of the TIAA-CREF retirement

funds was amended to comply with the PSA and amended agreement.

Husband also filed a motion asking the court to revoke the entry

of the May 22, 2000 TIAA-CREF QDRO and to file an amended QDRO

dividing this account in accordance with the parties'
                              - 3 -
agreements.   Husband contended that both QDROs should have

included interest on the pre-marital contributions as part of

the marital portion of the accounts to be divided.

     The trial judge found the language of the PSA and the

amended agreement "to be ambiguous."   On February 26, 2001, he

heard parol evidence on the issue.    On March 13, 2001, the trial

judge issued a letter opinion indicating that he had considered

the parol evidence and the written correspondence between the

parties "to determine the meaning of the language in the

[a]greement."   The trial judge found the language of the PSA and

the amended agreement "concerning the interest accruing on the

retirement accounts to be consistent."   The trial judge also

interpreted the terms "marital portion" and "marital share" "to

have the same meaning."   The trial judge found:

          The marital share of the retirement accounts
          consists of contributions, both by the
          employer and the employee, made from the
          date of marriage to the date of final
          separation and earnings on those
          contributions accruing from the date of
          marriage to the date of separation. The
          marital share does not include principal in
          the retirement accounts contributed prior to
          the marriage or interest accruing on those
          contributions. The Court finds that the
          parties intended this interpretation of the
          language of the Agreements and that there
          was a meeting of the minds.

     The trial judge ordered the entry of amended QDROs

reflecting his rulings.   The trial judge entered the amended

QDRO for the VALIC account on March 13, 2001.   On April 9, 2001,

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husband filed a motion to reconsider.     On May 7, 2001, the trial

judge entered the final order reflecting his rulings, and he

entered the amended QDRO for the TIAA-CREF accounts.    Husband

appeals the May 7, 2001 court order and the May 7, 2001 QDRO.

                               ANALYSIS

     Husband contends the PSA and amended agreement "are clear"

that the principal existing in the retirement accounts at the

date of the parties' marriage is not part of the marital share.

Husband also asserts, however, that neither the PSA nor the

amended agreement "clearly excludes interest and earnings on the

pre-marital share."    Indeed, husband contends the PSA specifies

that "all" contributions, interest and earnings are to be

included in the marital share and that the agreements contained

a "broad and expansive definition of marital portion."

     "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 rendered

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

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

of law, not of fact.     Id.

     "[W]hen pension benefits comprise a 'portion of the pool of

marital assets,' they are clearly contemplated by the 'scheme'
                              - 5 -
of Code § 20-107.3, which is intended to justly distribute the

'marital wealth of the parties.'"      Banagan v. Banagan, 17 Va.

App. 321, 325, 437 S.E.2d 229, 231 (1993) (citations omitted).

Code § 20-107.3(G)(1) provides, in part, that a court "may

direct payment of a percentage of the marital share of any

pension, profit-sharing or deferred compensation plan or

retirement benefits, whether vested or nonvested, which

constitutes marital property . . . ."     The statute defines

"marital share" as "that portion of the total interest, the

right to which was earned during the marriage and before the

last separation of the parties . . . ."     Code § 20-107.3(G)(1).

Separate property is "all property, real and personal, acquired

by either party before the marriage."     Code § 20-107.3(A)(1).

Code § 20-107.3(A)(3)(d) provides that separate property

commingled with marital property retains its original

classification if it can be retraced by a preponderance of the

evidence.

            Under Virginia law, it is well established
            that the marital portion of a defined
            benefit plan is distinguished from the
            separate portion by the application of a
            fraction, the numerator of which represents
            the total time the pensioner is employed
            during the parties' marriage, and the
            denominator of which represents the total
            time the pensioner is employed through the
            date of retirement. The fraction diminishes
            the marital share in relation to the number
            of years that pre- and post-marital
            contributions are made. Thus, as applied,
            the fraction effectively excludes from the

                               - 6 -
          marital share the income earned by pre- and
          post-marital contributions to the pension.

Mann v. Mann, 22 Va. App. 459, 464-65, 470 S.E.2d 605, 607-08

(1996) (citations and footnotes omitted) (emphasis added).

Similarly, in this case, the passive income, or interest, earned

on the pre-marital, separate property contributions of husband

and wife to their retirement accounts is not subject to division

by the trial judge as marital property.

     In addition, the evidence supports the conclusion that the

parties did not intend to include interest and earnings on their

pre-marital contributions to their retirement accounts in the

marital portion to be divided.    In a letter dated September 30,

1999, husband wrote to wife, "The division of our retirement

balances based on amounts accumulated during our marriage was

what I thought would be a likely arrangement if we went through

a court divorce."   (Emphasis added.)   Furthermore, in a letter

dated August 5, 1999 from husband to wife, husband wrote, "Feel

free to have your attorney change the language [of the division

of the marital portion of the retirement assets] if you so

desire for my review and signature."    Husband later signed the

amended agreement which specified that "marital share" included

"contributions and earnings on the marital share accrued from

the date of the marriage until the date of the final separation

of the parties, June 24, 1999."   Thus, by signing the amended

agreement, husband agreed that the interest earned on wife's

                              - 7 -
pre-marital, separate contributions to her retirement accounts

was not to be included in the "marital share."   Moreover, the

amended agreement stated that the amended agreement and the PSA

would be construed in accordance with Virginia law, which

provides, in this case, that the interest earned on the

pre-marital contributions of parties to their retirement

accounts is separate property.   See id.

     Husband testified at the hearing that, at the time he

signed the amended agreement, he believed "marital share" meant

"the same as the original agreement, and that was all

accumulations after beginning balances at the point of our

marriage, June '92, meaning all employee and employer

contributions, all interest and all earnings that accumulated

without qualification from June '92 through June '99."    This

statement indicates that husband did not intend that the marital

share would include the interest earned on wife's pre-marital

contributions or wife's pre-marital contributions to her pension

account.   Furthermore, wife testified that she understood the

parties intended to divide the pension accounts "in accord with

what the law typically calls for, which is equal division of the

marital portion of the accounts."   Wife also stated that she

understood and intended "[t]hat we would have a fifty-fifty

split of what was contributed to the accounts during the period

of the marriage and interest and accumulation on those

contributions only, but not interest on the pre-marital
                              - 8 -
contributions."   In a letter to her attorney dated December 14,

1999, wife wrote, "My intention is to exclude the interest and

accumulation on the contributions that were made prior to

marriage."

     In addition, husband signed the May 22, 2000 QDROs without

objection.   The May 22, 2000 QDROs did not indicate that

interest earned on pre-marital contributions to the retirement

accounts was part of the "marital share."   Accordingly, we

affirm the trial judge's rulings and his entry of the amended

QDRO for the TIAA-CREF account.

     "An award of attorney's fees rests within the sound

discretion of the trial court."   Coady v. Strategic Resources,

Inc., 258 Va. 12, 18, 515 S.E.2d 273, 276 (1999).   On this

record, we find that the trial judge did not abuse his

discretion in refusing to award husband his attorney's fees.

     For these reasons, we affirm the judgment of the trial

judge.

                                                         Affirmed.




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