James Allan Myers v. Shelby Lynne Smith Myers ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Petty and Powell
Argued at Salem, Virginia
JAMES ALLAN MYERS
MEMORANDUM OPINION ∗ BY
v. Record No. 1509-10-3 JUDGE JAMES W. HALEY, JR.
MARCH 8, 2011
SHELBY LYNNE SMITH MYERS
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Victor V. Ludwig, Judge
Frankie C. Coyner (Law Offices of Frankie C. Coyner, on brief), for
appellant.
Nancy A. Frank (Nancy A. Frank, P.C., on brief), for appellee.
I. INTRODUCTION
James Allan Myers (husband) appeals a decision of the trial court granting his former
spouse, Shelby Lynne Smith Myers (wife), a share in two retirement plans. 1 Husband argues a
property settlement agreement (PSA) granted wife a share in only one of the plans. We affirm.
II. BACKGROUND
Given our resolution of this case, the relevant facts may be succinctly stated.
Husband and wife separated on July 3, 2008. They entered into a PSA on July 25, 2008,
that was prepared by husband’s counsel. The PSA contained a provision concerning the division
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The parties’ names are misspelled in the briefs filed with this Court. However,
reference to documents filed with the trial court, including the parties’ actual signatures,
confirms the correct spelling. We use only the correct spelling in this opinion.
of husband’s retirement benefits obtained as a result of his employment with Merck. This
paragraph stated:
SECTION 7, RETIREMENT PLANS: WIFE shall be
entitled to fifty percent (50%) of the value of HUSBAND’s
retirement plan at Merck for the period starting on the date of
HUSBAND’s employment with Merck and ending on July 3,
2008, the date the parties ceased to cohabit. HUSBAND and
WIFE each waive any claims they may otherwise have against any
other retirement plans or benefits available to the other. Each party
agrees to execute any documents that may be required by any plan
or benefit administration to carry out the provisions of the
paragraph.
Husband had acquired an interest in two retirement plans from his employment. One
represented a plan for hourly employees paid for by the company. A second plan known as the
Merck Employee Stock Purchase and Savings Plan consisted of contributions from husband.
On September 3, 2009, husband objected to a proposed qualified domestic relations order
from wife that would have divided husband’s interest in the Stock Purchase and Savings Plan.
Husband maintained that under the agreement wife should receive only a share of the hourly
employees plan, without any share in the Stock Purchase and Savings Plan.
In a May 21, 2010 letter opinion, the trial court held wife should receive a share in both
plans in accordance with the unambiguous provisions of the PSA. The court based its holding on
Hale v. Hale, 42 Va. App. 27, 590 S.E.2d 66 (2003), writing: “If the language in Hale was not
ambiguous . . . this Court cannot find the language in this case to be ambiguous.”
III. ANALYSIS
Husband maintains that because the agreement provided wife an interest in only his
“retirement plan,” she should only receive a share of the hourly employees plan. For the
following reasons, we disagree.
We consider the parties’ property settlement agreement under the same rules applicable
to contracts. Bailey v. Bailey, 54 Va. App. 209, 215, 677 S.E.2d 56, 59 (2009). Contract
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interpretation is a matter of law receiving de novo review in this Court. Fry v. Schwarting, 4
Va. App. 173, 180, 355 S.E.2d 342, 346 (1987).
It is “the intent of the parties as expressed in the contract [that] controls.” Gayler v.
Gayler, 20 Va. App. 83, 86, 455 S.E.2d 278, 280 (1995). Where a contract is unambiguous,
courts must give effect to the words used. Stacy v. Stacy, 53 Va. App. 38, 44, 669 S.E.2d 348,
351 (2008) (en banc). We “‘are bound to say that the parties intended what the written
instrument plainly declares.’” Irwin v. Irwin, 47 Va. App. 287, 293, 623 S.E.2d 438, 441 (2005)
(quoting Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984)).
We agree with the trial court that Hale controls the interpretation of the agreement in this
case. 2 The property settlement agreement in Hale provided the husband had “a vested pension
plan with his employer” and that the wife would receive half “of said pension plan provided to
him through his employer.” 42 Va. App. at 32, 590 S.E.2d at 68. Like this case, the husband
argued the “pension plan with his employer” referred only to an employer-provided pension
plan, not to a plan where the employee contributes, which the husband also possessed. Id. at 30,
590 S.E.2d at 67. The wife maintained the language covered both plans. Id. This Court agreed
with the wife, holding the “plan” included “the sum of all individual plans husband’s employer
provided” since “both were a part of husband’s total retirement plan.” Id. at 32, 590 S.E.2d at
68. In doing so, the Court found important that the agreement showed “the parties intended to
settle . . . all pension plans owned by either party.” Id. at 33, 590 S.E.2d at 68. The Court also
noted the wife would have an equitable distribution claim for half of all pension benefits
obtained during the marriage. Id. Similarly, it could be said in this case that husband’s
“retirement plan” covered both the hourly employees plan and the Stock Purchase and Savings
2
In Hale, the parties stipulated the agreement was unambiguous and the Court
specifically declined to question this stipulation. 42 Va. App. at 31 n.1, 590 S.E.2d at 67 n.1.
The parties here have also agreed that the agreement is unambiguous.
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Plan. By including a waiver of all unmentioned retirement assets, the agreement plainly
demonstrates a desire to settle all retirement issues, as in Hale. 3 Finally, by providing wife a
fifty percent share of retirement assets from the beginning of husband’s employment with Merck
until the separation, it is clear that all the retirement funds were obtained during the marriage,
giving wife a potential right to fifty percent of such funds. See Code § 20-107.3(A)(2).
Finally, we note that wife seeks attorney fees under the agreement. The agreement stated
that if judicial “proceedings are instituted for the nonperformance of any covenant, promise or
agreement herein contained, the defaulting party shall be responsible for” attorney fees. These
proceedings were not initiated by wife for husband’s breach, but rather by husband to determine
his obligations. See Stroud v. Stroud, 54 Va. App. 231, 677 S.E.2d 629 (2009). Therefore, the
contractual provision does not apply and we deny wife’s request.
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
3
Husband distinguishes this case from Hale by arguing that here wife expressly waived
any interest in unmentioned plans, whereas in Hale no such waiver was present. However, both
the plans here came as a result of husband’s employment “at Merck,” as stated in the agreement.
Moreover, as noted above, the waiver indicates a desire to settle all assets obtained “at Merck.”
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