Opinion
Record No. 1446-92-4
September 28, 1993
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY ALFRED D. SWERSKY, JUDGE.
Edward V. O'Connor, Jr. (Lewis, Dack, Paradiso, O'Connor Good, on brief), for appellant.
Gwendolyn Jo M. Carlberg, for appellee.
Present: Judges Baker, Bray and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Nicholas P. Mihnovets (husband) and Sharon Arnold Mihnovets (wife) were divorced in 1987 by a final decree which "affirmed, ratified and incorporated" the "Property Settlement Agreement" (agreement) of the parties. Several years thereafter, a dispute arose with respect to certain provisions of the agreement. The trial court, acting on petitions of both parties, ordered husband to pay wife "an arrearage . . . in retired pay and spousal support," increased the amount of periodic spousal support payable to wife and awarded wife attorney's fees and costs incidental to the proceedings. Husband appeals, complaining that the court erroneously construed the agreement and abused its discretion in denying his request to reduce spousal support and awarding wife the foregoing relief.
The parties are fully conversant with the substantial record in the cause, and a recitation of the facts is unnecessary to this memorandum opinion.
It is well established that property settlement agreements incidental to divorce proceedings are subject to "the same rules of interpretation applicable to contracts generally."Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985). "A contract must be construed as a whole to determine the parties' intent with respect to specific provisions."Hooper v. Musolino, 234 Va. 558, 569, 364 S.E.2d 207, 212,cert. denied, 488 U.S. 823 (1988).
When the terms of a disputed provision are clear and definite, it is axiomatic that they are to be applied according to their ordinary meaning. Where there is no ambiguity in the terms of a contract, we must construe it as written, and . . . not . . . search for the meaning . . . beyond the pertinent instrument itself.
Smith v. Smith, 3 Va. App. 510, 514, 351 S.E.2d 593, 595-96 (1986) (citations omitted); see also Frey v. Frey, 14 Va. App. 270, 275, 416 S.E.2d 40, 43 (1992). Ambiguity "exists when language admits of being understood in more than one way or refers to two or more things at the same time." Smith, 3 Va. App. at 513, 351 S.E.2d at 595 (quoting Renner Plumbing v. Renner, 225 Va. 508, 515, 303 S.E.2d 894, 898 (1983)).
Guided by these principles, we find that the trial judge correctly concluded that "there's [nothing] ambiguous about" the agreement of the parties. Under such circumstances, its "meaning and effect are questions of law," reviewable by this Court on appeal. Tiffany, 1 Va. App. at 15, 332 S.E.2d at 799;see also Smith, 3 Va. App. at 513, 351 S.E.2d at 595. We also agree that the provision in issue "clearly . . . says that the wife is entitled to the payment . . . of a full share . . . in the full amount" of pension due husband upon his retirement. Should husband act to diminish such "full share" by a reduction of the "full amount" of his pension, the agreement further provides that he must "indemnify" and "hold [wife] harmless" from any resulting loss. Thus, the arrearage and retirement-related award simply recognized and enforced the parties' "agreement to guarantee a certain level of income" to the wife, with "alternative payments to compensate for . . . reduction in retirement benefits." Owen v. Owen, 14 Va. App. 623, 626, 419 S.E.2d 267, 269 (1992). Contrary to husband's contention, this "arrangement does not offend the federal prohibition against a direct assignment of military . . . pay." Id.; see 10 U.S.C. § 1408.
With respect to spousal support, the agreement expressly contemplated judicial modification of the original award "at such time as the wife begins to receive her share of the husband's retirement pay." Assuming, without deciding, that it was also necessary for wife to prove a "material change in circumstances" to justify modification, we find ample support in the record for the trial court's decision to increase the award to the amount ordered, and it will not be "disturbed on appeal."Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989); Barnes v. Barnes, ___ Va. App. ___, ___, 428 S.E.2d 294, 298 (1993); Code § 20-109.
Similarly, "[a]n award of attorney's fees is a matter submitted to the trial court's sound discretion and is reviewable on appeal only for an abuse of discretion." Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987) (citation omitted). It is a decision which must be "based upon the circumstances of the parties." Barnes, ___ Va. App. at ___, 428 S.E.2d at 300. Here, the agreement provided for an award of fees and costs under specified circumstances deemed extant by the trial court, and this finding and the related award are well supported by the evidence.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.