Christopher Westley Dempsey v. Stephanie McQuade Dempsey

COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Malveaux and Athey
UNPUBLISHED
Argued by videoconference
CHRISTOPHER WESTLEY DEMPSEY
MEMORANDUM OPINION* BY
v. Record No. 0913-20-4 JUDGE MARY BENNETT MALVEAUX
APRIL 20, 2021
STEPHANIE McQUADE DEMPSEY
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
C. Dean Kime (Dennis M. Hottell; Maddox & Gerock, P.C., on
briefs), for appellant.
Melinda L. VanLowe (The Law Office of Melinda L. VanLowe, PC,
on brief), for appellee.1
Christopher Westley Dempsey (“husband”) appeals orders of the Arlington Circuit Court
(“circuit court”) granting Stephanie McQuade Dempsey’s (“wife”) motion to enforce the parties’
final order of divorce and entering a Court Order Acceptable for Processing (“COAP”). On appeal,
husband argues that the circuit court erred (1) in ordering that the COAP provide wife with a
survivor benefit in connection with his federal employee retirement system disability retirement
benefits (“FERS annuity”) because the parties’ marital separation agreement (“MSA”) did not
award wife such a benefit; (2) in entering the COAP provided by wife because the material
provisions of the COAP as entered differed from the terms of the parties’ MSA; (3) by awarding
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Following oral argument, this Court granted VanLowe’s motion to withdraw as counsel
for wife. Kim Huguley was substituted as counsel for wife.
wife attorney’s fees for the preparation of the COAP and for her motion to enforce; and (4) by not
awarding husband attorney’s fees. For the following reasons, we affirm.
I. BACKGROUND
Husband and wife married on May 23, 1998. On March 9, 2020, the parties executed an
MSA that settled the issues of child custody, child support, spousal support, health and life
insurance, and property division. On March 10, 2020, the circuit court entered a final decree of
divorce that incorporated but did not merge the parties’ MSA into the final decree.
On April 23, 2020, wife filed a motion titled “Motion to Enforce Final Order of Divorce.”
In this motion, wife moved the circuit court to “enforce” Paragraphs 4 and 14 of the MSA. Wife
alleged that, pursuant to Paragraphs 4 and 14 of the MSA, husband had agreed that wife would
receive a survivor benefit related to his FERS annuity.2 Wife further stated that although
husband was obligated to pay for preparation of the COAP by the terms of the MSA, he received
advice from counsel that the MSA did not provide wife with a FERS survivor benefit and
therefore refused to sign a COAP that included this benefit. Wife moved the court to enter her
proposed COAP and order husband to pay her attorney’s fees related to the preparation of the
COAP. Wife also asked the court to award her attorney’s fees and costs related to her motion,
pursuant to a provision of the parties’ MSA providing for attorney’s fees for the successful
enforcement of the MSA. Wife further stated that she had prepared an addendum to the MSA for
2
Pursuant to federal regulations, a FERS member can designate a former spouse as the
recipient of a portion of his or her retirement upon that party’s death. See 5 C.F.R. § 843.307(providing for benefits upon death of FERS disability retiree); 5 C.F.R. § 843.312 (allowing for
death benefits to be “payable to a former spouse instead if the former spouse is entitled to that
benefit under the terms of a qualifying court order”).
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husband’s execution that husband refused to sign and asked the court to require husband to sign
this addendum.3
On May 1, 2020, husband filed a response in opposition to wife’s motion to enforce. In
his motion, husband argued that the plain and unambiguous terms of the parties’ MSA did not
require him to prepare a COAP providing wife with a survivor benefit in connection with his
FERS annuity. Husband also asserted that the parol evidence rule precluded consideration of
any evidence extrinsic to the MSA to contradict, add to, or explain the terms of the parties’
agreement. Husband further argued that wife was not entitled to her expense in preparing a
COAP because any delay in the process was due solely to the disagreement as to whether the
MSA provided wife with a FERS survivor benefit. Finally, husband argued that wife was not
entitled to attorney’s fees regarding the motion before the court because even if she succeeded on
the merits, her motion would not be one enforcing any covenants or provisions in the MSA.
On July 10, 2020, the circuit court held a hearing on wife’s motion to enforce. Neither
party testified at the hearing, which consisted solely of argument from counsel. At the
conclusion of the hearing, the court stated, “All right. I’m going to grant the motion and -- at this
time and enforce the final order.” The court also granted an award of attorney’s fees to wife in
relation to the preparation of the COAP, but reserved its ruling on the issue of attorney’s fees in
relation to the motion to enforce.
Following the hearing, wife filed a motion for attorney’s fees in reference to her motion
to enforce. Wife also filed a motion requesting the court to enter her proposed COAP, as
husband had not signed the document due to objections as to its drafting.
3
This addendum included language, under a heading titled “FERS Survivor’s Benefit
Program,” that “[u]nder section 834(h)(l) of title 5, United States Code, Wife is awarded a full
former spouse survivor benefit annuity under Husband’s Federal Employee Retirement System
benefits.”
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On July 24, 2020, the circuit court held a hearing on the issues concerning the entry of
the COAP and attorney’s fees. During this hearing, counsel for husband argued that the COAP
did not conform to the terms of the MSA because the FERS survivor benefit in the COAP lacked
the language from the MSA providing that it would terminate upon wife’s remarriage or
relationship analogous to marriage for a period of one year or more. Husband also asserted that
the COAP was contrary to the provisions of the MSA because it provided for wife to receive a
portion of his FERS annuity for 115 months instead of using the specific termination date set out
in the MSA.
At the conclusion of the hearing, the court ruled that wife’s proposed COAP would be
entered. The court also awarded wife half of her attorney’s fees in connection with the motion to
enforce. This appeal followed.
II. ANALYSIS
A. Survivor Benefit
Appellant argues that the plain and unambiguous terms of Paragraphs 4 and 14 of the
MSA do not provide wife with a survivor benefit in connection with his FERS annuity, thus the
court erred in entering a COAP granting wife this benefit.
Paragraph 4 of the MSA is titled “GI Bill and Survivor’s Benefit Program.” This
paragraph consists of two subsections. Subsection A provides that husband will allocate his GI
Bill benefits to the parties’ minor children. Subsection B reads as follows:
Survivor’s Benefit Program: Wife is currently named as the
beneficiary on Husband’s Survivor Benefit Plan and she shall
remain the beneficiary until she dies, remarries, or is in a
relationship analogous to marriage for a period of one (1) year or
more. Husband and wife shall share the cost of maintaining the
Survivor Benefit equally.
Subsections b and d of Paragraph 14 of the MSA, titled “Pension/Retirement Plans and
Accounts,” read in part as follows:
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b. Wife will receive the non-modifiable amount of Two Thousand
Four Hundred dollars ($2,400.00) per month for a period of ten
(10) years, from March 1, 2020 to March 1, 2030, from Husband’s
FERS Disability Retirement Annuity . . . . The Two Thousand
Four Hundred dollar ($2,400.00) per month amount will not
increase or decrease if Husband’s monthly FERS Disability
Retirement Annuity amount increases or decreases, including as a
result of any cost of living adjustments. Husband is entitled to
retain the FERS Disability Retirement Annuity, less Two
Thousand Four Hundred dollars ($2,400.00) per month, as his sole
and separate property. The monthly sum of the FERS Disability
Retirement Annuity due to Wife, shall be transferred to an account
in Wife’s name by a Court Order Acceptable For Processing,
(COAP).
d. In the event Husband becomes eligible for a military pension,
Husband will provide written notice to Wife thereof within seven
(7) days of Husband receiving notice of Husband’s Eligibility, and
Wife will be entitled to receive her one-half marital share.
The parties’ MSA represents a contract, and this Court construes it using the same rules
applicable to contracts. Stroud v. Stroud, 49 Va. App. 359, 366 (2007). “On appeal, [this] Court
reviews a trial court’s interpretation of a contract de novo.” Allen v. Allen, 66 Va. App. 586, 595
(2016) (alteration in original) (quoting Plunkett v. Plunkett, 271 Va. 162, 166 (2006)). “In
construing the terms of a property settlement agreement, just as in construing the terms of any
contract, [this Court is] not bound by the trial court’s conclusions as to the construction of the
disputed provisions.” Id. (alterations in original) (quoting Smith v. Smith, 3 Va. App. 510, 513
(1986)). “[I]f all the evidence which is necessary to construe a contract was presented to the trial
court and is before the reviewing court, the meaning and effect of the contract is a question of
law which can readily be ascertained by this [C]ourt.” Id. (alterations in original) (quoting Fry v.
Schwarting, 4 Va. App. 173, 180 (1987)).
“Because a separation agreement is a contract and must be construed as such . . . the
intent of the parties as expressed in the contract controls.” McLellan v. McLellan, 33 Va. App.
376, 383 (2002) (alteration in original) (quoting Gayler v. Gayler, 20 Va. App. 83, 86 (1995)).
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We glean “the intent of the parties and the meaning of the language . . . from an examination of
the entire instrument, giving full effect to the words the parties actually used.” Boedeker v.
Larson, 44 Va. App. 508, 519 (2004) (quoting Layne v. Henderson, 232 Va. 332, 337-38
(1986)). “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 (2008) (quoting Palmer & Palmer Co.
LLC v. Waterfront Marine Constr., Inc., 276 Va. 285, 289 (2008)).
However, “[w]hen a contract is ambiguous . . . a court should resort to parol evidence to
ascertain the true intention of the parties.” Aetna Cas. and Sur. Co. v. Fireguard Corp., 249 Va.
209, 215 (1995). “An agreement should be deemed ‘ambiguous if it may be understood in more
than one way or when it refers to two or more things at the same time.’” Vilseck v. Vilseck, 45
Va. App. 581, 588 (2005) (quoting Video Zone, Inc. v. KF & F Props., 267 Va. 621, 625
(2004)). But “[a] contract term is not ambiguous merely because the parties disagree as to the
term’s meaning.” Bergman v. Bergman, 25 Va. App. 204, 211 (1997). Rather, “it must be
objectively reasonable to understand the contractual language ‘in more than one way’ or to
conclude that it ‘refers to two or more things at once.’” Vilseck, 45 Va. App. at 588-89 (quoting
Pocahontas Mining L.L.C. v. Jewell Ridge Coal Corp., 263 Va. 169, 173 (2002)). “When the
language of a contract is ambiguous, parol evidence is admissible, not to contradict or vary
contract terms, but to establish the real contract between the parties . . . [and] to determine the
intention of the parties.” Stroud, 49 Va. App. at 367 (alterations in original) (quoting Tuomala v.
Regent Univ., 252 Va. 368, 374 (1996)). “The question whether contract language is ambiguous
is one of law, not fact.” Plunkett, 271 Va. at 166-67.
A reading of the MSA demonstrates that husband is potentially entitled to two separate
retirement accounts. First, it is clear from the MSA that husband was entitled to and was
receiving a monthly FERS annuity due to his disability retirement from his prior federal
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government employment. Second, the MSA states that wife is entitled to half of the marital
share of husband’s military pension “[i]n the event” that “[h]usband becomes eligible” for such
retirement plan. Here, the parties disagree as to what retirement account the parties were
referencing when wife was awarded a survivor benefit in Paragraph 4 of the MSA.4 Husband
asserts that a clear and unambiguous reading of the entire MSA supports his argument that the
survivor benefit found in Paragraph 4 applies to his military retirement, while wife argues that it
applies to his FERS annuity.
Husband presents two main arguments as to why the MSA’s plain language demonstrates
that the survivor benefit found in Paragraph 4 applies to his military retirement. We reject both,
finding that neither establishes through the MSA’s plain wording that the benefit is in connection
with his military as opposed to FERS retirement.
First, we reject husband’s argument that the survivor benefit applies to his military
retirement based upon the survivor benefit’s placement in the MSA. The heading of Paragraph
4, the section of the MSA containing the survivor benefit language, is “GI Bill and Survivor’s
Benefit Program.” This paragraph contains only one other subsection which discusses husband’s
GI Bill benefits. Husband argues that the title of the section and the fact that the only other
provision in the section is related to his military benefits demonstrates that the survivor benefit at
issue is also military related. We first note that the title of the section is not controlling. See
Donnelly v. Donatelli & Klein, Inc., 258 Va. 171, 180 (1999) (“[W]hile labels may be helpful in
determining contractual intent, they are not controlling.”). Further, we find that the heading here
is not entirely supportive of husband’s argument. The heading itself discusses two separate
4
As with FERS, military retirement plans allow for a servicemember to designate a
former spouse as the recipient of a portion of his or her pension upon the servicemember’s death.
See 10 U.S.C. § 1450 (allowing for a military servicemember’s retired pay to pass to an eligible
beneficiary upon the death of the member).
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benefits, “GI Bill and Survivor’s Benefit Program,” rather than using a collective heading such
as “Military Benefits.” (Emphasis added). Thus, while the GI Bill benefits relate to husband’s
military service, there is no clear indication from the plain language of the heading that the
Survivor’s Benefit Program as used in that title is also military related. In addition, while the
two benefits are grouped together in one section, we again do not find that this provides clear
evidence of the parties’ intent in regard to the survivor benefit.
Second, we also reject husband’s argument that the term “Survivor Benefit Plan” is a
term of art in this context. The plan allowing for a military servicemember’s retired pay to pass
to an eligible beneficiary upon the death of the member is titled “Survivor Benefit Plan.” See 10
U.S.C. § 1448(a)(1) (“The program established by this subchapter [providing for survivor
benefits for military servicemembers] shall be known as the Survivor Benefit Plan.”). Husband
argues that when the parties used the term of art “Survivor Benefit Plan” in the MSA, the parties
were clearly referring to husband’s military benefits alone. We acknowledge that in interpreting
contractual provisions, “[t]echnical terms or words of art will be given their technical meaning.”
11 Williston on Contracts § 32:4 (4th ed. 2012); see also Roanoke v. Blair, 107 Va. 639, 641-42
(1907) (stating that, in interpreting contractual provisions, “words of a definite legal significance,
or which have a well defined primary meaning, are to be understood as used in such sense,
unless there appear in the writing a manifest intention of using them in a different sense”).
However, we conclude that the term “Survivor Benefit Plan” is not a term of art in the context of
the parties’ MSA. “Term of art” is defined as “[a] word or phrase having a specific, precise
meaning in a given specialty, apart from its general meaning in ordinary contexts.” Term of Art,
Black’s Law Dictionary (11th ed. 2019). The term “Survivor Benefit Plan” does not have a
specific, precise meaning in Virginia domestic relations law, and thus we do not conclude that
the parties specifically intended to reference the military retirement benefit by the use of this
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term in the MSA, especially when here there was no reference to the federal statute providing for
military retirement survivor benefits in the agreement.
Contrary to husband’s contentions, we conclude that we cannot discern the parties’ intent
regarding the survivor benefit based upon the plain wording of the MSA. The plain language of
the MSA provides only that wife was “currently named as the beneficiary on Husband’s Survivor
Benefit Plan and . . . shall remain the beneficiary until she dies, remarries, or is in a relationship
analogous to marriage for a period of one (1) year or more.” Further, the parties would “share
the cost of maintaining the Survivor Benefit equally.” Nothing in the plain language setting out
this benefit makes clear whether the parties were referencing husband’s FERS annuity or his
military retirement. Absent from the survivor benefit language is any reference to husband’s
FERS benefits or military retirement benefits. Because there is no indication from the plain
language of the survivor benefit provision as to whether it applies to husband’s FERS annuity or
to his military retirement, we conclude this provision is ambiguous.
Because we find ambiguity in the terms of the MSA, we review the parol evidence
provided to the circuit court “to determine the intention of the parties.” Stroud, 49 Va. App. at
367 (quoting Tuomala, 252 Va. at 374).5 Wife attached several exhibits to her motion to enforce,
5
In its ruling, the circuit court did not make clear whether it determined that the survivor
benefit applied to husband’s FERS annuity based on the plain language of the parties’ MSA or if
it considered parol evidence in making its decision. However, “[a]bsent clear evidence to the
contrary in the record, the judgment of a trial court comes to us on appeal with a presumption
that the law was correctly applied to the facts.” Yarborough v. Commonwealth, 217 Va. 971,
978 (1977). Thus, we assume the circuit court considered the parol evidence provided by the
parties in making its determination.
Husband also takes issue with the court’s statement in its ruling that it was granting
wife’s motion “because based upon my reading of what this is, is that that’s what should have
happened.” Husband argues that this statement demonstrated that the court was improperly
modifying the parties’ MSA instead of applying its plain terms. We disagree, as this statement
can be read as the court simply stating that wife should receive a survivor benefit in connection
with husband’s FERS annuity because that was the parties’ intention as demonstrated by the
parol evidence.
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including email communication between the parties’ attorneys showing that on April 2, 2020,
counsel for wife asked counsel for husband for an explanation of a payment made to wife.
Counsel for husband explained that this payment was “April 2020 FERS: $2,128.00 ($2,400
award less $272 for half of SBP).” Husband’s explanation for his payment shows that he paid
wife her monthly $2,400 from his FERS annuity while subtracting $272 for “half of SBP.” Thus
the “SBP,” or survivor benefit plan, is clearly related to his FERS annuity. Further, his actions
track the language found in Paragraph 4(B) of the MSA, where the parties agreed that “[h]usband
and [w]ife shall share the cost of maintaining the Survivor Benefit equally.” In deducting the
premium for the survivor benefit from wife’s FERS payment, husband demonstrated that he
understood that the parties’ agreement was for wife to be awarded a survivor benefit in
connection with his FERS annuity. “It is long established that ‘[w]hen the terms of an agreement
are . . . uncertain, the interpretation placed thereon by the parties themselves is entitled to great
weight and will be followed.’” Stroud, 49 Va. App. at 368 (alterations in original) (quoting Dart
Drug Corp. v. Nicholakos, 221 Va. 989, 995 (1981)). Husband’s own actions showed that he
was aware that the survivor benefit contained in Paragraph 4 applied to his FERS annuity.
Therefore, the circuit court did not err in entering a COAP providing wife with a FERS annuity
survivor benefit.
B. COAP Terms
Husband further contends that the circuit court erred in entering wife’s proposed COAP
that materially varied from the terms of the MSA.
“Where the court affirms, ratifies and incorporates by reference in its decree [an]
agreement or provision thereof, it shall be deemed for all purposes to be a term of the decree, and
enforceable in the same manner as any provision of such decree.” Code § 20-109.1. Code
§ 20-107.3(K) provides for the continuing jurisdiction of a circuit court to enter orders
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“necessary to effectuate and enforce any order entered pursuant to [that] section.” This includes
the authority to enter qualified domestic relations orders dividing a party’s retirement account
after the expiration of twenty-one days following the entry of the final decree. See Caudle v.
Caudle, 18 Va. App. 795, 797 (1994) (noting that Code § 20-107.3(K)(4) “creates a limited
exception to the strict directive of Rule 1:1”). However, the qualified domestic relations order
entered may not “modify a final divorce decree simply to adjust its terms in light of the parties’
changed circumstances”; rather, it must be “consistent with the substantive provisions of the
original decree.” Id. at 798.
Husband contends the circuit court erred in entering the COAP because it varied from the
MSA in two ways—the COAP as entered did not contain the automatic termination language
found in the MSA, nor did it include the termination date set forth in the MSA. We conclude
that neither modification constituted a substantive change from the provisions of the MSA.
In regard to the termination language in the MSA, the agreement provides in Paragraph
4(B) that wife would remain the beneficiary of the survivor benefit “until she dies, remarries, or
is in a relationship analogous to marriage for a period of one (1) year or more.” This language
was not included in the COAP entered by the circuit court. We conclude the omission of this
language from the COAP was not a substantive change from the terms of the MSA because
husband still retained the ability to terminate his monthly payments if wife entered into such a
relationship. The only effect resulting from the absence of the termination language would be
that wife’s payments would not automatically end upon her remarriage or entry into a
relationship analogous to marriage. Because any potential effect would be procedural in nature
rather than substantive, the lack of termination language in the COAP was not an impermissible
modification of the parties’ MSA.
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As for the termination date of the FERS annuity payments, the MSA provides in
Paragraph 14 that wife “will receive the non-modifiable amount of Two Thousand Four Hundred
dollars ($2,400.00) per month for a period of ten (10) years, from March 1, 2020 to March 1,
2030, from Husband’s FERS Disability Retirement Annuity.” The MSA further provides that
[i]n the event that the federal government agency and/or financial
institution that will transfer funds to Wife does not begin the
transfer process upon entry of the Final Order of Divorce, Husband
shall be responsible for making these payments each month to
Wife until the federal government agency and/or financial
institution begins making these payments to her directly, and said
payments are due on the first day of each month.
The COAP entered by the circuit court does not include the termination date of March 1, 2030.
Instead, it provides that payments to wife will terminate upon “the payment of ONE HUNDRED
FIFTEEN (115) monthly payments to the [wife].” During the hearing before the circuit court on
this issue held July 24, 2020, following the entry of the final decree in March 2020, counsel for
wife told the court that she had included the term of 115 months to take “into account the five
months that it’s been before this [c]ourt,” during which husband was making the FERS annuity
payments directly to wife. She represented to the court that the Office of Personnel Management
(“OPM”) needed “the total of months” instead of an end date because that is what she thought
the agency would “accept.”
Because the inclusion of a term of months instead of a termination date did not change
the timing or amount of payments, we conclude that the absence of the specific termination date
was a not modification of the substantive provisions of MSA. In the MSA, wife was awarded
ten years of monthly payments from husband’s FERS annuity, which would commence on
March 1, 2020 and terminate on March 1, 2030. The MSA further provided that in the event that
the OPM did not begin making payments to wife upon entry of the final decree of divorce,
husband would pay wife directly until OPM began making its payments. At the hearing before
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the circuit court, held on July 24, 2020, it was not disputed that since March 2020 husband had
been making direct payments from his FERS annuity to wife on the first of each month, as
mandated by the MSA, for a total of five months of payments. The COAP’s 115-month term
added to the five months of husband’s prior payments amounts to a total of 120 months, or ten
years. Modifications that “alter critical terms of the [equitable distribution order], such as timing
or amount of payments, exceed the authority granted under Code § 20-107.3(K)(4).” Turner v.
Turner, 47 Va. App. 76, 80 (2005) (quoting Hastie v. Hastie, 29 Va. App. 776, 781 (1999)).
Here, the absence of the March 1, 2030 termination date did not alter the timing or amount of
payments. The parties agreed that husband would pay a portion of his FERS annuity to wife for
ten years and that is what the COAP effectuates, only by using a term of months instead of a
termination date. Accordingly, the circuit court did not err in entering a COAP without the
March 1, 2030 termination date.6
C. Attorney’s Fees at Trial
Husband further argues that the circuit court erred in granting wife her attorney’s
fees in relation to the preparation of the COAP and for her motion to enforce the final decree of
divorce.
In exhibits attached to their motions before the circuit court, wife and husband both
provided emails between their respective counsel demonstrating the parties’ actions in relation to
the preparation of the COAP. The emails show that on April 2, 2020, about three weeks after the
6
Husband argued at the hearing before the circuit court that OPM would take several
months to process the COAP and that this delay would result in an overpayment to wife because
he was obligated to pay wife directly prior to OPM processing the COAP. However, he provided
no evidence other than the representations of his counsel regarding the federal agency’s
processing times or procedures. The COAP was entered on July 24, 2020, the same date of the
hearing, and as of that date the COAP provided exactly what the parties agreed on—that wife
would receive a total of ten years of payments from husband’s FERS annuity. Further, in the
event of any delay in the processing of the order, husband has the ability to seek a court order for
overpayments that might ensue from the timing of OPM’s initial distribution of funds to wife.
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parties’ divorce decree was entered, counsel for wife asked counsel for husband whether husband
had retained an attorney to prepare the COAP. That same day, counsel for husband responded
that Sarah Broder, an attorney that wife’s counsel suggested prepare the COAP, had informed
counsel for husband that she was unsure if it was possible to set up a term or time-limited
division of the FERS annuity, and until counsel for husband had certainty over this issue,
husband would make the FERS annuity payment directly to wife. On April 6, 2020, counsel for
wife emailed counsel for husband and asked if husband objected to wife retaining Broder to
complete the COAP. Husband replied that he “object[ed] to [counsel for wife] unilaterally
retaining an attorney for the FERS COAP at this juncture, especially if I am responsible for the
cost involved.” He further stated that “efforts toward a suitable COAP will prove futile” because
OPM would “not respect a division of FERS that automatically terminates after ten (10) years.”
Counsel for wife emailed husband and told him that his actions were “a violation of the
MSA” and that he would further violate the MSA if he refused to sign or pay for the preparation
of a COAP that she would “arrange to be prepared.” Husband responded that he did “not have
an objection in principle to a COAP” but was “concerned that OPM will not recognize or honor a
time-limited FERS division.” He stated that he had “reached out to Ms. Broder and offered to
pay her retainer to formally research this issue and proffer a written opinion as [to] the efficacy
of a time-limited FERS division” and would keep counsel for wife “posted” regarding Broder’s
progress.
On April 8, 2020, counsel for wife told husband that because husband claimed that a
COAP could not be entered pursuant to the terms of the MSA, wife would retain counsel to
prepare a COAP. In response, husband told counsel for wife that he had retained Broder and that
she was working on the issue. He stated that as he had retained Broder, he objected to counsel
for wife hiring an attorney to prepare a COAP.
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Following this exchange, on April 9, 2020, counsel for wife emailed a draft COAP,
prepared by an attorney retained by wife, to Broder. In the email, counsel for wife stated, “We
will need to add language about the survivor benefit.” In an April 10, 2020 email, Broder told
counsel for wife that she did not see a provision for a FERS survivor benefit in the parties’ MSA.
Counsel for wife emailed back that she would “add that,” and then emailed a second draft COAP
to Broder. Broder again told counsel for wife that she did not believe the parties’ MSA included
a FERS survivor benefit, and counsel for wife responded that it was located in Paragraph 4 of the
MSA. Broder disagreed, stating that Paragraph 4 “refer[ed] to the Survivor Benefit Program,
which is for the military, not FERS.” Broder noted in a later email that there was “no reference
in Paragraph 4 to FERS.”
In an April 21, 2020 email to counsel for wife, Broder stated that “the language in the
MSA clearly does not provide a Former Spouse Survivor Annuity under the FERS to your
client” and that husband had “fulfilled his obligations under [the MSA] and taken all reasonable
and necessary actions to process the COAP in a timely fashion to enforce the terms of the [MSA]
as written.” Broder attached a draft COAP to this email that she stated was “in accordance with
the terms of his [MSA]” and asked counsel for wife to have wife sign the document and return
for husband’s signature.
“It is well-settled that parties may ‘adopt contractual provisions shifting the responsibility
for attorneys’ fees to the losing party in a contract dispute.’” Jones v. Gates, 68 Va. App. 100,
107 (2017) (quoting Ulloa v. QSP, Inc., 271 Va. 72, 81 (2006)). Code § 20-109(C) provides that
in divorce cases where the parties have an agreement, “no decree or order directing the payment
of . . . counsel fee . . . shall be entered except in accordance with that stipulation or contract.”
“[T]he statutory proviso, that no order ‘shall be entered except in accordance with the . . .
contract,’ requires the trial judge to examine the parties’ agreement to ascertain whether the
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relief sought by the moving party is encompassed within the terms of the agreement.” Rutledge
v. Rutledge, 45 Va. App. 56, 63 (2005).
“[P]roperty settlement agreements are contracts and subject to the same rules . . . of
interpretation as other contracts.” Irwin v. Irwin, 47 Va. App. 287, 292-93 (2005) (quoting
Smith, 3 Va. App. at 513). “In reviewing a property settlement agreement, the court must
determine ‘the intent of the parties and the meaning of the language . . . from an examination of
the entire instrument, giving full effect to the words the parties actually used.’” Jones, 68
Va. App. at 105 (alteration in original) (quoting Layne, 232 Va. at 337-38). “Where there is no
ambiguity in the terms of a contract, [this Court] must construe it as written.” Smith, 3 Va. App.
at 514. “The trial court’s interpretation of the PSA is an issue of law that we review de novo.”
Stacy, 53 Va. App. at 43.
In addition to setting out the sum of money wife was to receive from husband’s FERS
annuity, Paragraph 14 of the parties’ MSA also includes the following language:
The monthly sum of the FERS Disability Retirement Annuity due
to Wife, shall be transferred to an account in Wife’s name by a
Court Order Acceptable For Processing, (COAP). Husband shall
pay the expense for preparation of the COAP, and for preparation
of a Transmittal letter to the Plan Administrator. The COAP shall
be submitted to the Court and to the Plan Administrator by
Husband.
Paragraph 33 of the parties’ MSA, titled “Costs of Enforcement,” includes the following
language:
The parties agree that any costs, including but not limited to
counsel fees, court costs, investigation fees and travel expenses,
incurred by a party in the successful enforcement of any of the
covenants or provisions of this Agreement, whether through
litigation or other action necessary to compel compliance herewith
shall be borne by the defaulting party.
On appeal, husband argues that wife’s motion was not an action for enforcement, thus
wife was not entitled to attorney’s fees under Paragraph 33 of the MSA. Based upon our holding
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above, we disagree, as wife’s motion involved the “successful enforcement . . . of the covenants
or provisions of [the MSA].” As we found above, the parties intended for the COAP to include a
FERS annuity survivor benefit for wife. However, after receiving advice from counsel not
involved in the drafting of the MSA that the agreement did not provide for a FERS survivor
benefit for wife, husband refused to include this provision in his draft COAP or sign wife’s
version that included this term. Because husband refused to provide or sign a COAP with this
term, a term that the parties had agreed upon, wife was forced to file a motion requesting that the
circuit court enter her draft COAP. Based upon the specific facts of the instant case, we
conclude that wife’s motion was an enforcement action, as she filed the motion to compel
husband’s compliance with one of the provisions of the MSA—the survivor benefit contained in
the agreement that, as reflected in our holding above, the parties intended to apply to husband’s
FERS annuity.7 See Jones, 68 Va. App. at 107 (“Enforcement is defined as ‘[t]he act or process
of compelling compliance with a . . . decree or agreement.’” (quoting Enforcement, Black’s Law
Dictionary (9th ed. 2009)).
Further, wife was also entitled to the attorney’s fees associated with the preparation of the
COAP. Under the terms of the MSA, husband was responsible for the preparation of the COAP,
and he refused to prepare or sign a COAP with the FERS annuity survivor benefit, which we
7
In making his argument that wife’s motion was not a motion for enforcement, husband
places emphasis on wife’s request made in her motion to enforce that the circuit court compel
husband to execute an addendum explicitly granting her a survivor benefit in connection with the
FERS annuity. Husband argues that this request demonstrated that wife’s motion was an action
to add terms to the MSA and not an action to enforce the current terms of the MSA. However,
the circuit court did not order husband to sign the addendum, did not rely on this addendum in its
ruling, and did not enter the addendum as part of the parties’ MSA. Based on the court’s actions
regarding the addendum, we conclude that wife’s request concerning the proposed addendum
does not provide support for husband’s assertion that her motion was one to modify rather than
enforce the agreement—because the addendum was not entered, no such modification occurred.
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conclude was an agreed-upon term of the MSA. Thus, wife was entitled to the attorney’s fees
for the preparation of the COAP as a successful enforcement of a provision of the MSA.
Because wife successfully enforced a provision of the MSA, we conclude that the circuit
court did not err in awarding wife attorney’s fees for the preparation of the COAP and her
motion to enforce pursuant to Paragraph 33 of the MSA.8
Attorney’s Fees on Appeal
Both husband and wife request that this Court award attorney’s fees and costs incurred on
appeal. As noted above, Code § 20-109(C) provides that in cases where the parties have
executed a property settlement agreement prior to the entry of a final decree of divorce, “no
decree or order directing the payment of . . . counsel fee[s] . . . shall be entered except in
accordance with that stipulation or contract.” Like the proceeding in the circuit court, this appeal
is an enforcement action. Under the terms of the parties’ MSA, wife is entitled to attorney’s fees
for the successful enforcement of any provision of the MSA. Therefore, wife is entitled to
appellate attorney’s fees under the agreement as the prevailing party. Accordingly, this Court
remands this matter to the circuit court to determine what fees wife is entitled to under the terms
of the MSA.
III. CONCLUSION
For the foregoing reasons, we affirm the decision of the circuit court granting wife’s
motion to enforce the final decree and its entry of the COAP. We also affirm the court’s award
of attorney’s fees, and remand for a determination of appellate attorney’s fees.
Affirmed and remanded.
8
Husband finally argues that the circuit court erred in not awarding him attorney’s fees
for defending wife’s motion. Because we conclude that wife was entitled to attorney’s fees for
her successful motion to enforce pursuant to the parties’ MSA, we find no error in the circuit
court’s denial of husband’s request for attorney’s fees.
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