                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, McCullough and Senior Judge Bumgardner
UNPUBLISHED



              JEFF FREDDIE GROSS
                                                                                   MEMORANDUM OPINION *
              v.     Record No. 2214-12-3                                              PER CURIAM
                                                                                       JUNE 11, 2013
              JANICE HONAKER GROSS


                                    FROM THE CIRCUIT COURT OF RUSSELL COUNTY
                                                Michael L. Moore, Judge

                               (C. Eugene Compton, on brief), for appellant.

                               (A. Benton Chafin, Jr., on brief), for appellee.


                     Jeff Freddie Gross (husband) appeals an order denying his motion to modify or terminate

              spousal support. Husband argues that the trial court erred by (1) “holding that spousal support was

              not modifiable, when the parties agreed in their handwritten agreement that spousal support would

              be modifiable”; and (2) “refusing to modify spousal support, when the effect of that refusal was to

              give the wife [Janice Honaker Gross] a claim to husband’s Social Security benefits, even though she

              had waived any such claim under section 7 of the parties’ typewritten agreement.” 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. See Rule 5A:27.

                                                         BACKGROUND

                      Husband and wife married on September 21, 1974 and separated on January 7, 2004.

              During their separation, the parties signed an undated, handwritten agreement, which addressed

              property and spousal support (the handwritten agreement). In part, the handwritten agreement


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
stated that husband was “entitled to have court recalculate spousal if his income changes

significantly involuntarily.”

       Also during the separation, husband proposed several typed separation and property

settlement agreements. Wife rejected two of the proposed agreements; however, she accepted a

third agreement dated September 29, 2008 (the September 29, 2008 agreement). The September

29, 2008 agreement did not refer to the handwritten agreement, but it included the following

paragraph regarding spousal support:

               Pursuant to the Fairfax Guidelines, the Husband shall pay directly
               to the Wife the amount of $573.00 per month spousal support,
               commencing August 1, 2008, and continuing on the 1st day of
               each month thereafter until such time as either party dies or the
               Wife marries or cohabits with another person in a relationship
               analogous to marriage for one year or more, whichever event shall
               first occur.

       On November 13, 2008, the trial court entered a final decree of divorce, which

incorporated the September 29, 2008 agreement. The final decree reiterated husband’s spousal

support obligation by including the same spousal support paragraph as stated in the September

29, 2008 agreement.

       On November 22, 2010, husband filed a motion to amend his support obligations in the

Russell County Juvenile and Domestic Relations District Court (the JDR court). He asked that

his child support obligation be recalculated and his spousal support obligation be terminated

because he was “only drawing unemployment.” On February 16, 2011, wife filed a motion to

amend in the JDR court and asked that her child support and spousal support be increased. On

March 3, 2011, the JDR court entered an order, which in pertinent part, denied and dismissed

husband’s motion to terminate spousal support. It also set a temporary child support award and

continued the matter for review. On July 14, 2011, the JDR court reviewed child support and




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denied husband’s motion to reconsider spousal support. On the same day, husband appealed to

the circuit court. 1

        On March 20, 2012, the parties presented evidence and argument regarding spousal

support. On May 3, 2012, the trial court issued its letter opinion and denied the motion to

modify or terminate spousal support. The trial court held that the September 29, 2008 agreement

was the final agreement between the parties and its language was “clear and unambiguous that

support could not be modified.” The trial court noted that the September 29, 2008 agreement

was incorporated into the final decree, and neither party appealed it. Consequently, the trial

court held that it had “no authority” to modify the terms of the September 29, 2008 agreement or

the final decree. This appeal followed.

                                            ANALYSIS

                                       Assignment of error 1

        Husband argues that the trial court erred by holding that his spousal support obligation

was not modifiable. Husband contends the trial court erroneously ignored the parties’

handwritten agreement, which expressly provided for modifiable spousal support.

        “Antenuptial agreements, like marital property settlements, are contracts subject to the

rules of construction applicable to contracts generally, including the application of the plain

meaning of unambiguous contractual terms.” Pysell v. Keck, 263 Va. 457, 460, 559 S.E.2d 677,

678 (2002) (citing Southerland v. Estate of Southerland, 249 Va. 584, 588, 457 S.E.2d 375, 378

(1995)).

                 On appeal, the Court reviews a trial court’s interpretation of a
                 contract de novo. Eure v. Norfolk Shipbuilding & Drydock Corp.,

        1
          On January 24, 2012, husband filed a motion to reinstate the matter on the circuit
court’s docket. Husband asked the trial court to incorporate the handwritten agreement into the
final decree and terminate his spousal support. The trial court granted the motion, which,
according to the parties, is still pending in the trial court. We did not consider the motion to
reinstate in this appeal.
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               263 Va. 624, 631, 561 S.E.2d 663, 667 (2002) (citing Wilson v.
               Holyfield, 227 Va. 184, 313 S.E.2d 396 (1984)) (“we have an
               equal opportunity to consider the words of the contract within the
               four corners of the instrument itself”). The question whether
               contract language is ambiguous is one of law, not fact. Tuomala v.
               Regent Univ., 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996).
               Thus, the trial court’s conclusion regarding ambiguity is accorded
               no deference on appeal. See id.

Plunkett v. Plunkett, 271 Va. 162, 166-67, 624 S.E.2d 39, 41 (2006).

       Here, the parties entered into a handwritten agreement, which specifically allowed

modification of spousal support if husband’s “income changes significantly involuntarily.”

Subsequently, husband proposed several separation and property settlement agreements. One of

the drafts tracked the language from the handwritten agreement and stated that husband’s spousal

support obligation could be modifiable “if his income changes significantly involuntarily.”

Notably, this clause was dropped from the subsequent proposed agreements.

       The September 29, 2008 agreement, which wife accepted, did not provide for the

modification of spousal support, except until “such time as either party dies or the Wife marries

or cohabits with another person in a relationship analogous to marriage for one year or more,

whichever event shall first occur.” The September 29, 2008 agreement did not incorporate, or

even mention, the handwritten agreement. The final decree incorporated the September 29, 2008

agreement and did not mention or incorporate the handwritten agreement. In fact, the final

decree repeated the spousal support language from the September 29, 2008 agreement. Neither

the September 29, 2008 agreement nor the final decree stated that spousal support could be

modified based on a change in husband’s income.

               In suits for divorce, . . . if a stipulation or contract signed by the
               party to whom such relief might otherwise be awarded is filed
               before entry of a final decree, no decree or order directing the
               payment of support and maintenance for the spouse, . . . shall be
               entered except in accordance with that stipulation or contract. . . .

Code § 20-109(C).

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        Considering the language in the September 29, 2008 agreement, the trial court did not err

in holding that husband’s spousal support obligation was not modifiable due to a change in his

income.

        Husband argues that this case is similar to the facts in Driscoll v. Hunter, 59 Va. App. 22,

716 S.E.2d 477 (2011), because the parties entered into several agreements. The Court held that

“[w]hen a contract consists of multiple instruments, we interpret them together to determine the

parties’ intent.” Id. at 30, 716 S.E.2d at 480 (citation omitted). However, the parties in Driscoll

included language in their subsequent agreements to incorporate the prior agreements. No such

language exists in the September 29, 2008 agreement to incorporate the handwritten agreement.

        The recitations in the September 29, 2008 agreement state that “it is the mutual desire of

the parties to settle all rights, interests, and obligations between them, and to obtain a full,

complete and final Separation and Property Settlement, including for the present and all future

time, the division of their assets and liabilities and the support of both parties.” The recitations

further state that this agreement is “in full settlement of any and all interest of each other in the

property, estate and interests of the other.” In paragraph 10 of the September 29, 2008

agreement, the parties agreed to incorporate “this Agreement” into a final decree of divorce “in

full and complete settlement of all right, title and interest which each may have in the property or

estate of the other.”

        “‘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, 44, 669 S.E.2d 348, 351 (2008) (en banc)

(quoting Palmer & Palmer Co., LLC v. Waterfront Marine Constr., Inc., 276 Va. 285, 289, 662

S.E.2d 77, 80 (2008)).

        The language in the September 29, 2008 agreement is clear and unambiguous.

Husband’s spousal support obligation can be modified when “either party dies or the Wife

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marries or cohabits with another person in a relationship analogous to marriage for one year or

more, whichever event shall first occur.” It does not allow for modification based on a change of

his income. The handwritten agreement was not incorporated into the September 29, 2008

agreement or the final decree. The trial court did not err in holding that it could not modify

husband’s spousal support obligation pursuant to the September 29, 2008 agreement.

                                      Assignment of error 2

       Husband asserts that by ordering him to pay spousal support to wife, the trial court

effectually awarded her a portion of his retirement, in contravention of the September 29, 2008

agreement. Husband explains that his Social Security retirement and disability benefits are his

only income from which he can pay spousal support. Husband argues that wife waived her right

to his retirement according to paragraph 7 of the September 29, 2008 agreement, which states

that “[e]ach party forever waives any claim to the other party’s retirement benefits, IRA’s and/or

pensions, whether past, present or future.” Therefore, he contends the trial court should have

modified his spousal support, so wife was not receiving a portion of his Social Security

retirement and disability benefits.

       This issue regarding spousal support and retirement division was addressed in Moreno v.

Moreno, 24 Va. App. 190, 480 S.E.2d 792 (1997), where husband argued that he should not have

to use his retirement income to pay his spousal support obligation. The Court examined the

relationship between Code §§ 20-107.1 and 20-107.3:

               The one-time equitable distribution of property completed by Code
               § 20-107.3 is based on the accrued rights of the parties in the
               distributed property. This is a separate consideration from that
               necessary to measure the current financial positions of the parties
               in determining spousal support under Code § 20-107.1. Different
               statutory considerations are mandated for each.

Moreno, 24 Va. App. at 198, 480 S.E.2d at 796.



                                               -6-
       Furthermore, the Court held, “Although Code § 20-107.3(G) limits the award a spouse

can receive pursuant to the equitable distribution of marital property, no language precludes that

property from being considered at a later time as income for purposes of calculation of spousal

support.” Id. at 198-99, 480 S.E.2d at 796. The Court ultimately concluded that “the income

received by husband from his share of the distribution of his pension is a fungible asset that may

be considered as a resource when determining the amount of his spousal support obligation.” Id.

at 204, 480 S.E.2d at 799.

       The trial court did not err in refusing to terminate husband’s spousal support obligation

because of wife’s waiver to his retirement. Her waiver to retirement was in reference to

equitable distribution and Code § 20-107.3, not spousal support and Code § 20-107.1.

                                         CONCLUSION

       For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                         Affirmed.




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