                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Athey and Senior Judge Haley
UNPUBLISHED


              Argued at Fredericksburg, Virginia


              SHELLY MARIE SMITH, N/K/A
               SHELLY S. DAVIS
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1137-19-4                                   JUDGE RANDOLPH A. BEALES
                                                                                   APRIL 7, 2020
              WILLIAM ROBERT SMITH, III


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

                               Monica J. Chernin (Law Offices of Monica J. Chernin, P.C., on
                               brief), for appellant.

                               Elliott H. DeJarnette for appellee.


                     Shelly Marie Smith (now known as Shelly S. Davis) (“Davis”) appeals the final order of

              the Circuit Court of Culpeper County ordering her to pay William Robert Smith, III (“Smith”)

              $20,316 in restitution for spousal support payments he made to her after the date of her

              remarriage.

                                                         I. BACKGROUND1

                     The parties were married on July 13, 1991, and divorced on November 16, 2015.

              Pursuant to the parties’ Property Settlement and Separation Agreement and Stipulation (“PSA”),


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Some portions of the record in this case were sealed. Nevertheless, the appeal
              necessitates unsealing relevant portions of the record for purposes of resolving the issues raised
              by the parties. Evidence and factual findings below that are necessary in order to address the
              assignments of error on appeal are included in this opinion. Consequently, “[t]o the extent that
              this opinion mentions facts found in the sealed record, we unseal only those specific facts,
              finding them relevant to the decision in this case. The remainder of the previously sealed record
              remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017).
which was affirmed, ratified, and incorporated (but not merged) into the parties’ final decree of

divorce, Smith was required to pay Davis the sum of $1,693 per month in spousal support. The

PSA provides that, upon Davis’s remarriage, “the payments by Husband to Wife for her support

and maintenance shall immediately cease forever.” On March 18, 2017, Davis remarried.

Between April 2017 and August 2018, Smith continued to pay Davis spousal support.

       On November 13, 2018, Smith filed a complaint alleging that Davis “failed to advise him

of her remarriage,” causing him to erroneously continue to pay her spousal support for seventeen

months for a total overpayment of $28,781. Davis filed an answer alleging that she notified

Smith of her remarriage by regular mail in March 2017 and in September 2017. The answer she

filed also stated that she sent a third notice by certified mail in March 2018, which was

ultimately returned to her as undeliverable.

       The parties appeared before the trial court for a hearing on May 8, 2019, where they

agreed that Davis had remarried on March 18, 2017, that she had received seventeen months of

spousal support from Smith after the date of her remarriage, that Smith had paid these amounts

directly into an account from which only Davis was permitted to make withdrawals, and that

Davis had withdrawn each of these payments. Smith’s counsel argued that the evidence would

show that Smith did not receive any notification of Davis’s remarriage until September 2018

when they were both present in court to address a child support issue that is not before us in this

appeal.2 Davis’s counsel argued that Davis had notified Smith of the remarriage on three

separate occasions and that any amounts deposited into the account over and above the amount

of child support that Smith still was required to pay Davis were simply gifts to her.




       2
         Although Smith’s counsel stated that Smith was actually notified of Davis’s remarriage
in September 2018, the evidence – i.e., Smith’s testimony – indicates that the court date in which
he received actual notice was in August 2018.
                                              -2-
        At the hearing, Smith testified that he had lived at the same address in Bristow, Virginia

since approximately September 2015, and he agreed that he received his mail at this address. He

testified that he was not aware of Davis’s remarriage until August 27, 2018, when Smith and

Davis were both in court regarding a child support issue. He also testified that he was also made

aware on that same date that Davis had changed her address.3 He stated that, after he learned of

Davis’s remarriage, he stopped paying spousal support and sent Davis a demand letter by mail

and email demanding repayment of the spousal support he had paid her since her remarriage. He

indicated that he received an email back from Davis in which she refused to repay him.

        Smith testified that, since their divorce, email had been their primary form of

communication. Specifically, he stated that Davis had sent him 221 emails since the separation

and that he had only received mail from her on three or four occasions. He denied receiving any

notification from Davis whatsoever about her remarriage until they arrived at court in August

2018. On cross-examination, Davis’s counsel showed Smith an envelope sent by Davis via

certified mail on March 28, 2018 addressed to Smith at his residence. She also showed him the

letter it contained notifying Smith of Davis’s remarriage. Smith denied ever seeing the envelope

or the letter.

        Davis testified that she had remarried on March 18, 2017, and that she had mailed Smith

the first letter via regular mail informing him of her remarriage on March 20, 2017. She testified

that she mailed him a second letter, again via regular mail, on September 2, 2017.

        Davis also testified that, in March of 2018, she sent a certified letter to Smith informing

him of her remarriage. A copy of the envelope, postmarked March 28, 2018, addressed to Smith




        3
          Pursuant to the divorce decree, both Smith and Davis were required to give each other
and the trial court advance written notice of thirty days by regular mail and email (if known) of
their intention to relocate – or of any change of address.
                                                 -3-
and marked, “Return To Sender Unclaimed Unable To Forward” was entered into evidence.

Davis stated that, although she sent Smith many emails after the divorce (mostly regarding

unpaid medical expenses), he usually did not reply to the emails. However, she said that she did

receive payments for requested medical expenses after sending several email reminders. She

also stated that she believed that mail was more appropriate for alerting Smith of her remarriage

because “mail was more formal.”

       Davis admitted that she was in court with Smith on two additional occasions between

March 18, 2017 and August 27, 2018, and that she did not mention her remarriage to Smith on

either occasion. Davis stated that she did not mention the remarriage to him on these two

occasions when they saw each other in court because she had already notified him and because

she had decided that, since the divorce, all communications between them “needed to be in

writing.”

       At the conclusion of the May 8, 2019 hearing on Smith’s complaint, the trial judge stated:

                        The Court however cannot find that Ms. Davis met her
               responsibility until she sent the certified mail receipt that shows
               that it was returned to sender unclaimed, unable to forward; and so
               it’s clear that at that point, Mr. Smith evidently was sticking his
               head in the sand rather than accepting the paperwork. So from that
               point forward, the payments would be deemed to be a gift. Prior to
               that, she would need to reimburse Mr. Smith.

The trial court entered an order directing Davis to pay Smith $20,316 for the overpayment of

spousal support he made to Davis in the period of a little over a year between her remarriage and

her attempt to notify Smith of her remarriage by certified mail. The trial court also awarded

Smith interest on the award “from date of Judgment and costs in the amount of $129.00.”

                                            II. ANALYSIS

       Davis appealed the decision of the trial court, arguing in her first two assignments of

error that the trial court erred in finding that she did not meet her obligation to advise Smith of
                                                -4-
her remarriage until she sent him the letter by certified mail because neither the PSA nor Code

§ 20-110 contains such a requirement. She argues that she satisfied her obligation when she sent

him the first letter, by regular mail, on March 20, 2017.4

                A. The Language of the Parties’ PSA Controls the Parties’ Obligations

        Although Davis contends that the trial court erred in its interpretation of Code § 20-110, that

statute does not actually control the outcome of this case because Smith and Davis entered into a

PSA, and it is the terms of that contract between them that determines the rights and obligations of

the parties in this particular case. Relevant to this appeal, the PSA states that Smith must pay

spousal support until Davis remarries. It further states:

                  It is expressly understood and agreed that in the event of the death of
                  either party or Wife’s remarriage at any time subsequent to the
                  execution of this Agreement, “remarried” being defined as actual
                  marriage or Wife’s cohabitation for a period of 12 consecutive
                  months or more with another adult as if to all appearances they were
                  otherwise married, then the payments by Husband to Wife for her
                  support and maintenance shall immediately cease forever. Wife shall
                  have an affirmative duty to advise Husband of her remarriage as
                  soon as it occurs or cohabitation status after 12 consecutive months
                  have passed.

        4
            Davis’s opening brief contains three assignments of error, which state:

                  1. The trial court erred by adding a requirement to § 20-110 of the
                     Code of Virginia, 1950, as amended, that notice to the former
                     spouse of remarriage must be made by certified mail.
                  2. The trial court erred by adding a term to the parties’ Property
                     Settlement Agreement, that notice to Former Husband of
                     Former Wife’s remarriage had to be via certified mail, despite
                     there being no such language in the Agreement.
                  3. The trial court’s ruling is contrary to the evidence presented
                     and misapplies the law of Virginia, to-wit: excess support
                     payments are gifts, particularly considering the lack of
                     evidence that Former Husband distinguished between child and
                     spousal support when he made unitary payments into the
                     account designated by the parties’ property settlement
                     agreement for receipt of spousal support payments. The order
                     for Former Wife to repay Former Husband monies received
                     prior to Former Wife sending certified mail is error.
                                                   -5-
(Emphasis added). Thus, the issue before this Court is whether the trial court erred in awarding

Smith $20,316 for his continued payment of monthly spousal support to Davis well past her

remarriage, given this provision of the parties’ PSA.

       “The trial court’s interpretation of the PSA is an issue of law that we review de novo.”

Stacy v. Stacy, 53 Va. App. 38, 43 (2008) (en banc). “[A] PSA is governed by the same rules of

construction applied to other contracts.” Id. at 44. In interpreting the agreement, this Court must

               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.

Id. (quoting Irwin v. Irwin, 47 Va. App. 287, 292-93 (2005)).

       The plain language of the PSA provides that upon Davis’s remarriage, Smith’s obligation

to pay spousal support to her “shall immediately cease forever.” The agreement is clear that it is

Davis’s remarriage – not Davis’s notification to Smith of her remarriage – that triggers the

cessation of Smith’s obligation to pay spousal support. Accordingly, as soon as Davis remarried,

Smith’s duty to pay spousal support ceased.

       The next sentence of the parties’ PSA providing that Davis had an “affirmative duty to

advise” Smith of her remarriage sets out the requirement that Davis advise Smith of her

remarriage “as soon as it occurs” in order to ensure that he was aware that his obligation had

ceased. When read as a whole, this provision of the PSA clearly communicates a sense of

urgency in Davis’s responsibility to inform Smith of her remarriage. The PSA required Davis to

not simply provide notice, but gave her an affirmative duty to actually advise Smith of her




                                                -6-
remarriage “as soon as it occur[red]” so that his payments to her could “immediately cease

forever.”5 Davis did not comply with this requirement.

       Although both Smith and Davis agreed that, since the separation, Davis had

communicated with Smith almost exclusively through email, Davis did not even email him to tell

him of her remarriage. Furthermore, despite seeing him in person on at least two occasions in

court – where she could have provided Smith with this information in person or asked her

attorney to tell his attorney – she failed to do so. Instead, the evidence shows that she continued

to remove the support payments from the bank account on the same day or the very next day

after Smith deposited not only the child support but also the spousal support. Moreover, while

Smith usually deposited child support and spousal support together in one payment into Davis’s

account, the bank statements entered into evidence show that, immediately following her

remarriage, she removed Smith’s deposit by making two transfers – one for the child support and

one for $1,693 (the exact amount of the spousal support). The trial court could certainly infer

from all of this information that Davis knew Smith was still making the spousal support

payments.

       Reviewing the totality of these circumstances, we conclude that Davis did not satisfy her

“affirmative duty to advise Husband” of her remarriage “as soon as it occur[red]” under the terms of

the parties’ PSA – so that the payments would “immediately cease forever” – when she sent him the

two letters by regular mail.6 She did not actually advise or tell him (or otherwise make sure he


       5
        At oral argument before this Court, Davis’s counsel told this Court that the definition of
the word “advise” included “inform.”
       6
          Smith filed a cross-assignment of error arguing that the trial court erred in not awarding
him the full $28,781 he overpaid to Davis between the date of her remarriage and when Davis
actually advised him of her remarriage on August 27, 2018, because the letter she mailed by
certified mail was insufficient to satisfy her duty under the PSA. However, at oral argument
before this Court, Smith stated that he was abandoning his cross-assignment of error – and was
                                                 -7-
knew) of her remarriage – while continuing to accept and withdraw his payments of spousal

support.

    B. Whether Smith’s Continued Spousal Support Payments After Davis’s Remarriage Are a
                       Gift to Her Under the Circumstances of this Case

       In her third assignment of error, Davis argues that any amounts Smith paid over the

amount he actually owed were gifts to her under Virginia law. In support of this contention, she

cites to the proposition stated in Sanford v. Sanford, 19 Va. App. 241, 248 (1994), that “[s]upport

payments made by an obligated spouse over and above court-ordered monthly support are

considered gifts or gratuities.” Sanford and the other cases cited by Davis noting that

proposition, however, are readily distinguishable from the case now before us because they

involve attempts by the payor spouse to make unilateral changes to the parties’ agreement and/or

divorce decree.

       In Sanford, William Sanford was required – pursuant to an amended property settlement

agreement, which was approved and incorporated into a judicial decree – to pay his former wife,

Betty Sanford, spousal support. Id. at 244. Later, due to a change in his financial position,

William Sanford informed Betty Sanford that he would send her more money in addition to that

actually due to her under the decree for a period of several months. Id. He requested that she

treat these additional payments as an advance and allow him to reduce the amount of spousal




no longer asking for repayment of $28,781 but only the $20,316 ordered by the trial court.
Because Smith has abandoned this assignment of cross-error, we do not reach it – and likewise
do not need to reach the question of whether Davis’s letter sent by certified mail would satisfy
Davis’s “affirmative duty to advise Husband of her remarriage as soon as it occurs” if it had been
sent by certified mail right after her remarriage. Therefore, we do not need to address the trial
court’s conclusion that Davis fulfilled her obligation under the PSA when she sent Smith a
certified letter on March 28, 2018. The trial court only awarded Smith the $20,316 that he had
paid Davis through March 28, 2018 (plus interest from the date of the trial court’s judgment).
We also conclude that, at least until that point, Davis had not satisfied her obligations under the
PSA.
                                                 -8-
support he paid thereafter. Id. Betty Sanford, however, did not agree to credit the additional

amounts against William Sanford’s future obligations. Id. William Sanford proceeded to send

Betty Sanford additional money in accordance with his proposed plan – crediting himself for the

future obligations – until he ceased making payments completely. Id. at 245.

       Betty Sanford filed a petition to show cause, claiming William Sanford was in arrears on

his support obligation for the months when he had paid less than the full amount due under the

decree and for months when he failed to pay entirely. Id. Before the trial court, William Sanford

claimed that he was entitled to credits for his earlier overpayments. Id. The trial court found

that, although Betty Sanford had not agreed to the arrangement, William Sanford was still

entitled to a credit. Id. On appeal, this Court reversed the decision of the trial court. Id. at 244.

This Court held “that because William Sanford was required to pay spousal support in

accordance with the terms of the support decree, he was not entitled to credit the amount he paid

in excess of his court-ordered monthly support against his future support obligations.” Id. at 243.

The Court reasoned that giving William Sanford credit for these payments would permit him to

unilaterally vary the terms of the support obligation without petitioning the court for

modification or entering into an express agreement with his former wife. Id. at 248-49. It stated

that

               even a court of equity, in an effort to do equity, cannot disregard
               the provisions of a lawful decree, nor is such a court justified in
               offsetting against payments required to be made under such a
               decree voluntary payments . . . . If a party to such a decree is not
               satisfied with its provisions relative to . . . payments required to be
               made for . . . support, such party may always come into court and
               ask for a modification of the decree.

Id. at 246 (quoting Fearon v. Fearon, 207 Va. 927, 931 (1967) (alterations in original)).

       Unlike Sanford, this case does not involve any attempted modification to the parties’ PSA

or the divorce decree. Smith, in this case, did not attempt to unilaterally change the terms of the
                                                -9-
agreement or alter the timing or amounts owed to Davis. Instead, he continued to pay Davis

spousal support in accordance with the terms of the PSA because Davis failed to actually advise

or inform him of her remarriage in a manner that alerted him that his obligation had ended.

Because Smith did not know that his obligation to pay Davis had “immediately cease[d] forever”

when he made these payments, the additional payments he made to her were not gifts.

                         C. Davis’s Request for Appellate Attorney’s Fees

        Davis also requests that Smith pay her attorney’s fees incurred in this appeal. The PSA

provides in paragraph 8 that “each party agrees to be responsible for his or her own respective

attorney’s fees for the preparation of this Agreement and for any divorce proceedings which may

hereafter be filed between the parties.” However, the PSA also provides that “[i]n the event that a

party defaults on the terms of this agreement, or does not prevail in a motion to review/modify, the

prevailing party will have the right to seek attorney’s fees to cover the fees and costs incurred from

the defaulting or non-prevailing party.” In this case, Davis did not prevail on appeal, and, therefore,

she is responsible for her own attorney’s fees incurred in this appeal. Accordingly, her request for

appellate attorney’s fees is denied.


                                           III. CONCLUSION

        In short, Davis did not fulfill her affirmative duty to notify Smith of her remarriage as soon

as it occurred, despite the unequivocal urgency expressed in the parties’ PSA and its requirement

that she actually advise him of her remarriage as soon as it occurred. Although she mailed him two

letters by regular mail in the six months following her remarriage, she did not actually advise him of

her remarriage so as to ensure that he had actual knowledge that she had remarried. She

acknowledged that she did not attempt to alert him through email, even though email had been their

primary form of communication since the separation, and she declined to inform him of the


                                                 - 10 -
remarriage on the two occasions when she saw him in person in court – or to have her attorney tell

his attorney – until August 27, 2018. Furthermore, during this time, she continued to accept and

regularly withdraw the spousal support deposited by Smith into her account each month, despite the

PSA’s unambiguous language that upon her remarriage, the spousal support payments were to

“immediately cease forever.”

       Furthermore, the case law cited by Davis does not support the proposition that Smith’s

continued spousal support payments to her under the circumstances of this case were gifts.

When Smith made additional payments to Davis, he was not attempting to unilaterally alter the

parties’ agreement and was not simply providing Davis with numerous gifts, despite their

contentious relationship and divorce. Instead, because of Davis’s failure to advise him of her

remarriage, he believed he was paying Davis in accordance with the required terms of the PSA.

       For all of these reasons, especially including the pertinent language of the parties’ PSA,

we affirm the trial court’s judgment directing Davis to repay Smith $20,316 in spousal support

payments made after Davis’s remarriage in addition to “interest from date of Judgment and costs

in the amount of $129.00.” Smith has abandoned his assignment of cross-error so we do not

need to reach the question of whether Davis needed to repay Smith the additional $8,465 he

made in spousal support payments after she sent him the certified letter – or the question of

whether Davis’s certified letter under these circumstances satisfied the requirements of the

parties’ PSA for advising Smith of Davis’s remarriage.7




       7
            See Commonwealth v. Harley, 256 Va. 216, 220 (1998) (“[C]ourts are not constituted
. . . to render advisory opinions, to decide moot questions or to answer inquiries which are
merely speculative.” (quoting City of Fairfax v. Shanklin, 205 Va. 227, 229-30 (1964) (second
alteration in original))).
                                                - 11 -
       Finally, because Davis was not the prevailing party in this appeal, she is not entitled to

appellate attorney’s fees under paragraph 8 of the parties’ PSA. Therefore, we deny her request

for appellate attorney’s fees.

                                                                                          Affirmed.




                                               - 12 -
