                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and McCullough
UNPUBLISHED


              Argued at Alexandria, Virginia


              ANTHONY ARTHUR SABIO
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1099-14-4                                  JUDGE ROBERT J. HUMPHREYS
                                                                               FEBRUARY 10, 2015
              MARIBELLE BAUTISTA SABIO


                                   FROM THE CIRCUIT COURT OF CULPEPER COUNTY
                                               Susan L. Whitlock, Judge

                               Anthony C. Williams (Anthony C. Williams & Associates, PC, on
                               briefs), for appellant.

                               Ann M. Callaway (Ann M. Callaway, P.C., on brief), for appellee.


                     Anthony Arthur Sabio (“husband”) appeals four separate orders of the Culpeper County

              Circuit Court (the “circuit court”) involving his divorce from Maribelle Bautista Sabio (“wife”).

              Although husband asserts ten lengthy assignments of error in support of his appeal, husband’s

              arguments can be distilled to revolve around two issues: (i) the circuit court’s rulings in its two

              May 18, 2014 orders and its June 3, 2014 order as to a disputed provision in the parties’ property

              settlement agreement, titled “Pensions,” addressing husband’s Thrift Savings Plan (“TSP”)

              account, Federal Employees’ Retirement System (“FERS”) pension, and Ready Reserve account;

              and (ii) the circuit court’s refusal to award attorney’s fees to husband in its March 26, 2014




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
order.1 For the following reasons, we affirm in part, and reverse and remand the judgment of the

circuit court in part.

                               PROPERTY SETTLEMENT AGREEMENT
                         AND AMENDED PROPERTY SETTLEMENT AGREEMENT

        Husband’s first nine assignments of error all revolve around whether the circuit court

correctly interpreted the meaning of “martial share” in the parties’ agreement. Specifically,

whether the court properly found that the term “martial share” in the amendment was ambiguous,

and as a result properly resorted to taking parol evidence to ascertain the parties’ intent, and


        1
            Specifically husband’s ten assignments of error in support of his appeal are as follows:

        (1) “The trial court erred in its Order dated June 3, 2014, when it heard parol evidence on
terms of the parties’ Amendment to Property Settlement Agreement that were unambiguous;”
        (2) “The trial court erred by entering its Retirement Benefits Court Order (TSP) dated
May 18, 2014 and its Court Order Acceptable for Processing (FERS) dated May 18, 2014, when
the Amendment to Property/Separation Agreement clearly states ‘[h]usband shall have both
QDROs prepared at Husband’s expense within 30 days after official retirement from CIA;’”
        (3) “The trial court erred in its Order dated June 3, 2014, when it found ‘[t]hat there is no
evidence that either of the parties, by use of the term “marital share,” intended to invoke the
statutory definition of marital share as stated in § 20-107.3(G)(1); nor that they were aware of the
statutory definition at the time the agreement was signed;’”
        (4) “The trial court erred in its Order dated June 3, 2014, when it found ‘[t]hat the
parties intended the Defendant’s Thrift Savings Plan account to be divided equally as of the date
of Defendant’s retirement;’”
        (5) “The trial court erred in its Order dated June 3, 2014, when it Ordered and Adjudged
that “‘Plaintiff is entitled to one-half of Defendant’s Thrift Savings Plan account as of the date of
Defendant’s retirement;’”
        (6) “The trial court erred in its Retirement Benefits Court Order (TSP) dated May 18,
2014 when it awarded Plaintiff a lump sum equal to Fifty Percent (50%) of Defendant’s civilian
Thrift Savings Plan total account balance as of April 1, 2014;”
        (7) “The trial court erred in its Order dated June 3, 2014, when it found ‘[t]hat the parties
intended that Plaintiff would receive one-half of Defendant’s Federal Employees’ Retirement
System (FERS) pension as of the date of Defendant’s Retirement;’”
        (8) “The trial court erred in its Order dated June 3, 2014, when it Ordered and Adjudged
that ‘Plaintiff shall receive one-half of Defendant’s Federal Employees’ Retirement System
(FERS) pension as of the date of Defendant’s Retirement;’”
        (9) “The trial court erred in its Court Order Acceptable for Processing (FERS) dated May
18, 2014 when it assigned to Plaintiff Fifty Percent (50%) of Defendant’s self-only monthly
annuity under FERS;” and
        (10) “The trial court erred when it did not award attorney’s fees in its Order dated March
26, 2014.”
                                                  -2-
finally whether the circuit court erred in its findings of the parties’ intent from the parol

evidence.

       Husband and wife married in 1995. When the parties were married, husband served in

the United States Navy. In 2002, he joined the Secret Service. Beginning in 2007 until the

present, husband serves in the CIA. The parties separated on August 24, 2009. Husband and

wife executed a Property Settlement Agreement (“PSA”) on May 3, 2010. The PSA was

prepared by wife’s attorney, and reviewed by husband’s attorney. Under Paragraph 27, titled

“PENSIONS” the parties agreed:

               Husband has a CIA TSP account with an account number ending
               in 74910, consisting of an FERS account and a Ready Reserve
               account. The FERS has an approximate balance of $80,437.02 and
               the Ready Reserve account has an approximate balance of
               $432.05. Wife shall receive one-half of the balance from these two
               accounts as of the date of the signing of this agreement, together
               with any gain or loss thereon, until the QDRO is prepared. Wife
               shall be allotted fifty percent of the marital share of FERS account
               and Ready Reserve account by way of a QDRO. Husband shall
               have both QDROs prepared at Husband’s expense within 30 days
               of the entry of a final decree of divorce. If Husband has Military
               pension, Wife will receive fifty percent of the marital share.

       Approximately one year after executing the PSA, on May 13, 2011, the parties executed

an Amendment to the PSA (the “Amendment”). Wife drafted the Amendment without advice

from counsel. The only change in the parties’ agreement relevant to this appeal was Paragraph 3

of the Amendment, in which the parties agreed “to null and void previous PENSION

AGREEMENT (Item # 27) under the original SEPARATION/PROPERTY AGREEMENT.”

The amended provision contained in Paragraph 3 of the Amendment read:

               Husband has a CIA TSP ACCOUNT with an account number
               ending in 74910, consisting of a FERS account and a Ready
               Reserve Account. Wife shall receive one-half of the balance from
               these two accounts on the date the Husband officially retires and
               starts his pension, together with any gain or loss thereon, until the
               QDRO is prepared. Wife shall be allotted fifty percent of the
               marital share of FERS and Ready Reserve account by way of a
                                                 -3-
               QDRO. Husband shall have both QDROs prepared at Husband’s
               expense within 30 days after official retirement from CIA. If
               Husband has Military pension, [w]ife will receive fifty percent of
               the marital share.

       On April 18, 2013, wife filed for divorce. On June 11, 2013, the circuit court ordered

that the terms of the PSA and the Amendment were “affirmed, ratified and incorporated by

reference, but not merged” into a court order. On January 4, 2014, the circuit court entered a

final order of divorce, but retained jurisdiction to enter orders as necessary to divide husband’s

FERS and TSP accounts as set forth in the PSA and Amendment.

       Wife filed a notice that she would move for the entry of two QDRO orders dividing

husband’s retirement benefits. The circuit court continued the case because it found that

resolving the issue “require[d] parol evidence.” On April 1, 2014, the circuit court heard parol

evidence on what the parties intended by the use of certain wording in the PSA and Amendment.

The circuit court orally held that the parties did not intend to invoke the statutory definition of

“martial share” but instead intended that wife would receive half the balance of the two accounts

from the date husband retires rather than from the date that the parties signed the PSA.

       On May 18, 2014, the circuit court signed two QDRO orders. The first, “Court Order

Acceptable for Processing” divided the husband’s FERS pension by assigning wife “50% of

[husband]’s self-only monthly annuity under FERS.” The second, “Retirement Benefits Court

Order” awarded wife “a lump sum equal to fifty percent (50%) [of] the [husband]’s civilian

[TSP] total account balance as of April 1, 2014.” Husband filed objections to both orders.

       On June 3, 2014, the circuit court entered another order finding that “certain terms”2 of

the Amendment were ambiguous. However, based on the parol evidence, it found that there was



       2
         The circuit court did not make a specific finding that it was allowing parol evidence
exclusively on the meaning of “martial share,” and its June 3, 2014 order simply stated that it
“heard evidence on the issue of the intended meaning of certain wording in the agreement.”
                                                 -4-
no evidence that either of the parties, by the use of the term “marital share,” intended to invoke

the statutory definition of marital share as stated in Code § 20-107.3(G)(1), “nor that they were

even aware of the statutory definition at the time the agreement was signed.” Additionally, the

circuit court found that the parties intended husband’s TSP account to be divided equally as of

the date of his retirement and that wife would receive one-half of husband’s FERS pension as of

the date of his retirement. Based on those findings, the circuit court ordered that: (1) Wife is

entitled to one-half of husband’s TSP account as of the date of husband’s retirement; and

(2) wife shall receive one-half of husband’s FERS pension as of the date of husband’s retirement.

       Husband appeals the entry of the two May 18, 2014 QDRO orders (assignments of error

two, six, and nine) and the June 3, 2014 order (assignments of error one, three, four, five, seven,

and eight).

                                                 I.

       For the reasons that follow, we hold that the circuit court erred in finding that the term

“martial share” was ambiguous because the words of the parties’ entire agreement

unambiguously express an intention to invoke the statutory definition of “marital share.”

Therefore, the circuit court erred in hearing parol evidence on the term’s intended meaning.

       “Property settlement agreements are contracts and are subject to the same rules of

construction that apply to the interpretation of contracts generally.” Southerland v. Estate of

Southerland, 249 Va. 584, 588, 457 S.E.2d 375, 378 (1995). The function of the court is to

determine “what did the parties agree to as evidenced by their contract.” Irwin v. Irwin, 47

Va. App. 287, 293, 623 S.E.2d 438, 441 (2005). “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.”

Id. In other words, “[i]f the terms of the parties’ agreement are contained in a clear and explicit

                                                -5-
writing, that writing is the sole memorial of the contract and the sole evidence of the agreement.”

Galloway Corp. v. S.B. Ballard Constr. Co., 250 Va. 493, 502, 464 S.E.2d 349, 354 (1995). As

such, if the agreement is unambiguous, “parol evidence cannot be used to explain the written

contractual terms.” Id. (emphasis added).

        “An ambiguity exists when language is of doubtful import, admits of being understood

in more than one way, admits of two or more meanings, or refers to two or more things at the

same time.” Allen v. Green, 229 Va. 588, 592, 331 S.E.2d 472, 475 (1985). Any ambiguities in

a written contract “must be construed against the drafter of the agreement.” Doctors Co. v.

Women’s Healthcare Assocs., 285 Va. 566, 573, 740 S.E.2d 523, 526 (2013).

               It is elementary that where the terms of a contract are thus
               susceptible of more than one interpretation, or an ambiguity exists,
               or the extent and object of the contract cannot be ascertained from
               the language employed, “parol evidence may be introduced to
               show what was in the minds of the parties at the time of the
               making of the contract and to determine the object on which it was
               designed to operate.”

Young v. Schriner, 190 Va. 374, 379, 57 S.E.2d 33, 35 (1950).

       “The question whether contract language is ambiguous is one of law, not fact.” Plunkett

v. Plunkett, 271 Va. 162, 166-67, 624 S.E.2d 39, 41 (2006). Thus, “[w]e are not bound by the

trial court’s construction of contract terms, but rather, ‘we have an equal opportunity to consider

the words within the four corners of the disputed provision.’” T.M. Delmarva Power, L.L.C. v.

NCP of Va., L.L.C., 263 Va. 116, 119, 557 S.E.2d 199, 200 (2002) (quoting Wilson v. Holyfield,

227 Va. 184, 188, 313 S.E.2d 396, 398 (1984)).

       In this case, the circuit court erred when it found that the term “martial share” was

ambiguous, and therefore improperly heard extrinsic evidence of the parties’ intent. Although

the parties disputed what was meant by their use of the term “martial share” in the Amendment,

“[a] contract is not ambiguous merely because the parties disagree as to the meaning of the terms

                                               -6-
used.” Plunkett, 271 Va. at 167, 624 S.E.2d at 42. Here, a conflict does not exist in the written

agreement itself. The meaning of “martial share” can be ascertained within the four corners of

the writing. The use of the term “marital share” in Paragraph 3 of the Amendment is not of

“doubtful import,” or susceptible to being “understood in more than one way,” or has “two or

more meanings,” or “refers to two or more things at the same time.” Allen, 229 Va. at 592, 331

S.E.2d at 475. The language of the parties’ entire agreement unambiguously expresses an

intention to apply the statutory definition of “marital share.”

       Code § 20-107.3(G)(1) defines “marital share,” as it applies to any pension, profit-

sharing, or deferred compensation plan or retirement benefit, as “that portion of the total interest,

the right to which was earned during the marriage and before the last separation of the parties, if

at such time or thereafter at least one of the parties intended that the separation be permanent.”

This Court has held that the language in Code § 20-107.3(G)(1) can be “implemented through

the use of a simple formula.” McGinniss v. McGinniss, 49 Va. App. 180, 185-86, 638 S.E.2d

697, 700 (2006). “‘The number of years that the spouse was in the pension plan while in the

marriage serves as the numerator and the total number of years in the pension plan serves as the

denominator. This fraction establishes the marital share of the pension as defined by the

statute.’” Id. (quoting Mosley v. Mosley, 19 Va. App. 192, 198, 450 S.E.2d 161, 165 (1994)).

       Paragraph 3 of the Amendment nullifies and replaces Paragraph 27 in the PSA.

However, Paragraph 28, titled “HUSBAND’S MILITARY RETIREMENT,” was unaltered by

the Amendment. Paragraph 28 states in part:

               The marital share of the Husband’s military retirement shall be
               determined by dividing the number of months of creditable
               military service by Husband during the marriage and prior to the
               date of final separation of the parties by the total number of months
               of creditable service earned by Husband upon the date of his
               retirement.



                                                -7-
The language in Paragraph 28 defining marital share directly mirrors the statutory formula

articulated in the Code and explained by caselaw. Paragraph 28 requires that the “marital share”

of the husband’s military retirement shall be determined by “dividing the number of months of

creditable military service by Husband during the marriage and prior to the date of final

separation of the parties” [the number of years that the spouse was in the pension plan while in

the marriage serves as the numerator] “by the total number of months of creditable service

earned by Husband upon the date of his retirement” [the total number of years in the pension

plan serves as the denominator]. See McGinniss, 49 Va. App. at 185-86, 638 S.E.2d at 700.

       This Court must construe terms in a manner consistent with the entire contract viewed as

a whole. See Plunkett, 271 Va. at 167, 624 S.E.2d at 42. The language of the Amendment and

the PSA do not indicate that a different definition of “marital share” should apply to Paragraph 3

than the definition of “marital share” that is explicitly defined in Paragraph 28. Therefore,

absent any indication to the contrary, the parties’ use of the term “marital share” in a manner

consistent with Code § 20-107.3(G)(1) in the paragraph immediately following the disputed

provision demonstrates an intent to apply the statutory definition of “martial share” within the

four corners of the entire agreement.

       Moreover, in construing contracts “[n]o word or clause in the contract will be treated as

meaningless if a reasonable meaning can be given to it, and there is a presumption that the

parties have not used words needlessly.” D.C. McClain, Inc. v. Arlington Cnty., 249 Va. 131,

135-36, 452 S.E.2d 659, 662 (1995); see also Daugherty v. Diment, 238 Va. 520, 524, 385

S.E.2d 572, 574 (1989) (“In construing the documents as a whole, the court will not treat any

word or clause as meaningless if any reasonable interpretation consistent with the other portions

of the contract can be ascribed to it.”). If this Court were to construe the Amendment to mean

that the parties intended wife to receive 50% of husband’s total benefits upon his retirement, the

                                               -8-
term “marital share” would be rendered totally meaningless in the phrase: “fifty percent of the

marital share of FERS and Ready Reserve account.” If the parties intended for wife to receive

fifty percent of the total amount they could have simply stated: “fifty percent of the marital

share of FERS and Ready Reserve account.”

       Wife argues that an ambiguity exists as to the meaning of “martial share” in the

Amendment because the phrase “Wife shall receive one-half of the balance from these two

accounts on the date the Husband officially retires and starts his pension,” followed by “Wife

shall be allotted fifty percent of the marital share of FERS and Ready Reserve account,” creates a

conflict. Specifically, she argues that it creates an ambiguity that justifies the admission of parol

evidence because the plain language in the first phrase clearly indicates an intention that the

parties intended to divide the retirement accounts as of the date husband retires; whereas the use

of the term “marital share” later in the same paragraph suggests a different outcome based on the

statutory definition of “marital share” in Code § 20-107.3(G)(1).

       Although wife presents one possible construction of the Amendment that contains

inconsistent outcomes, “‘[w]hen two provisions of a contract seemingly conflict, if, without

discarding either, they can be harmonized so as to effectuate the intention of the parties as

expressed in the contract considered as a whole, this should be done.’” Plunkett, 271 Va. at 168,

624 S.E.2d at 42 (emphasis added) (quoting Ames v. Am. Nat’l Bank of Portsmouth, 163 Va. 1,

39, 176 S.E. 204, 217 (1934)). Here the first and second phrases that are seemingly in conflict

“may be harmonized without disregarding any of its provisions or doing violence to any of its

language.” Id. As explained above, the PSA and the Amendment viewed as a whole,

demonstrate an intention to apply the statutory definition of marital share to their use of the term

in the contract. Therefore, in harmonizing the two phrases, the first phrase indicates when wife




                                                -9-
shall receive her share, whereas the second phrase modifies the first phrase to indicate what share

wife shall receive at the time specified by the first phrase.

       Finally, and importantly, in construing contracts, “[w]ords that the parties use are given

their usual, ordinary, and popular meaning.” D.C. McClain, Inc., 249 Va. at 135, 452 S.E.2d at

662. Here the ordinary meaning of “marital share” is consistent with the statutory definition of

“marital share” and entirely contradicts wife’s position that “marital share” was intended to be

husband’s total retirement benefits, including those incurred after the parties’ separation.

Webster’s Third New International Dictionary 1382, 2087 (1993), defines “marital” as “relating

to marriage or the marriage state” and “share” as “a portion belonging to, due to, or contributed

by an individual,” “one’s full or fair portion,” or “the part allotted or belonging to one of a

number owning together an property or interest.” Similarly, Black’s Law Dictionary 1112, 1585

(10th ed. 2010), defines “marital” as “relating to, or involving the marriage relationship,” and

“share” as “an allotted portion owned by, contributed by, or due to someone.” Read together,

both Webster’s and Black’s support the proposition that the ordinary meaning of “marital share”

is one’s allotted portion that relates to the marriage relationship. In other words, a martial share

relates to the parties’ portion of an interest that was accrued during the course of the marital

relationship.

       For all the reasons stated above, the term “marital share” as used in the Amendment is

unambiguous and reflects an intention to apply the statutory definition articulated in Code

§ 20-107.3(G)(1). Therefore, the circuit court erred in admitting parol evidence on the parties’

intent as to that term’s meaning.

                                                  II.

       On appeal, husband argues that the subject matter of the Amendment is unambiguous—it

does not actually divide the CIA TSP but only divides the FERS and the Ready Reserve

                                                - 10 -
account.3 Because husband raises this argument for the first time on appeal, his assertion fails to

meet the requirements of 5A:18, and because husband makes no request to invoke any exception

to Rule 5A:18, we therefore do not address his arguments related to this issue. See Edwards v.

Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc) (holding that this

Court “will not consider, sua sponte, a ‘miscarriage of justice’ argument under Rule 5A:18”).

                                                 III.

       Husband’s second, sixth, and ninth assignments of error all relate to the circuit court’s

entry of the two QDRO orders on May 18, 2014. The first order, “Court Order Acceptable for

Processing” divided the husband’s FERS pension by assigning wife “50% of [husband]’s self-

only monthly annuity under FERS,” and the second, “Retirement Benefits Court Order” awarded

wife “a lump sum equal to fifty percent (50%) [of] the [husband]’s civilian Thrift Savings Plan

total account balance as of April 1, 2014.” The circuit court’s June 3, 2014 order held that wife

was entitled to one-half of husband’s TSP account as of the date of husband’s retirement and that

wife shall receive one-half of husband’s FERS pension as of the date of husband’s retirement.

All three orders were entered after the court heard parol evidence of the parties’ intent. It is

unclear from the record whether the court’s June 3, 2014 order was intended to replace or

supplement the two May 18, 2014 orders. However, we need not resolve any discrepancies in

the circuit court’s three orders because we are reversing and remanding based upon the court’s

improper admission of parol evidence.




       3
         In the circuit court, husband argued exactly the opposite of what he argues on appeal.
At the hearing he argued that the Amendment was “internally inconsistent and inherently
ambiguous,” because it was factually inaccurate as to what retirement accounts were subparts of
others. Specifically, he claimed that although the Amendment stated that husband had a CIA
TSP account that consisted of a TSP account and a Ready Reserve account, husband in fact has a
FERS account and a TSP account and that the Ready Reserve Account was unrelated to his
service in the CIA.
                                                - 11 -
                                         ATTORNEY’S FEES

       On June 17, 2013, the circuit court entered a pendente lite order that awarded support to

wife and awarded her $5,345 in attorney’s fees pendente lite. On March 26, 2014, the circuit

court reversed itself after finding that the PSA precluded an award of attorney’s fees to either

party except in the event of a breach or violation of that agreement. In this tenth assignment of

error, husband argues that the circuit court abused its discretion by failing to award him

attorney’s fees that he incurred while litigating the reimbursement of erroneously awarded

pendente lite attorney’s fees.

       The terms of the PSA do not support husband’s proposition. Pursuant to Code

§ 20-109(C),

               [i]n suits for divorce, annulment and separate maintenance . . . 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 . . . counsel fee . . .
               shall be entered except in accordance with that stipulation or
               contract.

(Emphasis added). Accordingly, the clear and explicit terms of the parties’ contract govern this

issue and the circuit court did not have the authority to enter an order inconsistent with those

terms. See Rutledge v. Rutledge, 45 Va. App. 56, 61-62, 608 S.E.2d 504, 507 (2005). Paragraph

61 of the PSA provides that “Each party agrees to be entirely responsible for the respective legal

fees which each of them have incurred or may hereafter incur.” However, “in the event that a

breach or violation” of the PSA should occur, the court should require the substantially non-

prevailing party to reimburse costs and fees incurred by the substantially prevailing party.

Because neither party was before the circuit court due to an alleged breach or violation of the

PSA, pursuant to the terms of the PSA itself husband is “entirely responsible” for legal fees he

may have incurred. Therefore, the circuit court did not abuse its discretion when it did not award



                                               - 12 -
husband attorney’s fees that he incurred litigating the erroneously awarded pendente lite

attorney’s fees.

       Wife asks this Court to award her attorney’s fees necessary for the defense of this appeal.

As stated above, the parties’ PSA governs this issue. Because there is no allegation that husband

breached or violated the PSA, wife is similarly “entirely responsible” for legal fees and costs she

may have incurred on appeal. We therefore deny wife’s request.

                                           CONCLUSION

       We hold that the circuit court erred in finding that the term “martial share” was

ambiguous because the language of the parties’ entire agreement unambiguously expresses an

intention to apply the statutory definition of “marital share.” Consequently, the circuit court

erred in allowing parol evidence on the parties’ intent. Accordingly, we reverse the judgment of

the circuit court and remand the case to the circuit court for the entry of amended orders

consistent with this Court’s opinion. Additionally, we affirm the circuit court’s denial of

husband’s request for payment of his attorney’s fees, and we deny wife’s request for appellate

attorney’s fees and costs.

                                                                                  Affirmed in part,
                                                                and reversed and remanded in part.




                                               - 13 -
