Jerry C. Pate v. Barbara R. Pate, etc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JERRY C. PATE
MEMORANDUM OPINION *
v. Record No. 0479-96-4 PER CURIAM
OCTOBER 1, 1996
BARBARA R. PATE, N/K/A
BARBARA R. WILEY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gerald Bruce Lee, Judge
(James R. Hart; Dixon, Smith & Stahl, on
briefs), for appellant.
(Paula W. Rank; Lawrence H. Bowen; Byrd,
Mische, Bevis, Bowen, Joseph & O'Connor,
P.C., on brief), for appellee.
Jerry C. Pate (husband) contends the trial court erroneously
amended the final decree of divorce as it pertained to his
military retirement, erroneously computed an arrearage to include
cost of living increases, and erroneously awarded attorney's fees
to his former wife, Barbara R. [Pate] Wiley (wife). Upon
reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. Rule 5A:27.
"Property settlement and support agreements are subject to
the same rules of construction and interpretation applicable to
contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180,
355 S.E.2d 342, 346 (1987). "[O]n appeal if all the evidence
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 court." Id.
"Amended Decree"
Husband contends that the trial court's order was an
extra-jurisdictional attempt to modify the terms of the final
decree more than twenty-one days after the order was entered in
violation of Rule 1:1. In addition, husband contends the court's
order was an impermissible attempt to rewrite the parties'
agreement.
Two years after entry of the final decree, the wife filed a
motion to interpret and enforce the terms of the existing
agreement. The court retains jurisdiction, even after the
expiration of twenty-one days from the date the final decree was
entered, to enforce the parties' existing agreement as
incorporated in the final decree. Rook v. Rook, 233 Va. 92,
95-96, 353 S.E.2d 756, 758 (1987). Thus, we hold that the
husband's contention concerning jurisdiction is without merit.
The agreement provides in paragraph 23(g) as follows:
[Husband] agrees that [wife] is awarded
a monetary sum equal to FORTY PERCENT (40%)
of the disposable retired pay and costs of
living increases if, as and when received.
Disposable military retired pay is defined by
the applicable laws and regulations. [Wife]
shall receive FORTY PERCENT (40%) of the said
disposable retired pay. To the extent that
said portion of retired pay is not paid
directly to [wife] by the Secretary of the
Army or his designated agent, [husband] is
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designated as a constructive trustee for
[wife] . . . .
[Husband] agrees that if there is a
diminution, reduction or cessation of the
amount paid to [wife] hereunder, due to an
act or omission of [husband], he shall
personally pay to [wife] that amount not paid
directly to her by the United States Army
. . . . Specifically, the election by
[husband] of any survivor benefit plan
benefits in the future shall not affect in
any way [wife's] share of the military
retired pay set forth herein.
These provisions were "ratified, affirmed, and incorporated" into
the final decree as permitted by Code § 20-109.1. In 1993, when
the final decree was entered, husband was receiving regular
retirement pay and wife was receiving $1,478.
The evidence proved that husband began to receive disability
retirement pay in July 1994. Husband's election of disability
retirement reduced the amount received by wife. Thus, the trial
judge correctly ruled that the provision of paragraph 23(g) was
implicated.
In Owen v. Owen, 14 Va. App. 623, 419 S.E.2d 267 (1992),
under similar circumstances, we ruled as follows:
[F]ederal law does not prevent a husband and
wife from entering into an agreement to
provide a set level of payments, the amount
of which is determined by considering
disability benefits as well as retirement
benefits.
* * * * * * *
The trial court correctly found that the
guarantee/indemnification clause created a
separate agreement between the parties to
maintain a certain level of payments to the
wife. The husband acknowledged that he had
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no disability rating at the time the
agreement was signed. . . . The lengthy
provisions of the PSA . . . show the parties'
clear intent to maintain a stable payment
level. If we adopted the husband's
interpretation of the guarantee language, the
guarantee would be rendered virtually
meaningless, due to potentially large-scale
conversion of retirement benefits to
disability benefits. Conceivably, husband's
disability payments could eliminate
completely the wife's benefits. Such a
result is irrational and does not comport
with the clear intent expressed by the
language of the PSA.
Id. at 628-29, 419 S.E.2d at 421.
Here, the trial court found that the terms of the agreement
and the final decree were consistent and "that the act of
electing military disability retirement pay is an act that the
husband sought that had the effect of a diminution, reducing the
amount of the military retirement pay payable to the wife." We
agree with the trial court's interpretation of the agreement and
with its conclusion.
Furthermore, the trial court's order enforced, but did not
amend, the terms of the parties' agreement and final decree.
Therefore, the trial court did not exceed its jurisdiction.
Rook, 233 Va. at 95-96, 353 S.E.2d at 758.
Arrearage
Husband also contends that the trial court erroneously
interpreted the final decree to include cost of living increases.
The agreement and decree clearly provide for wife to receive
cost of living increases "if, as and when received." Husband's
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interpretation that $1,478 per month was a cap on wife's benefits
is not supported by the plain language of the agreement and the
decree. Therefore, we find no error in the trial court's
calculation of the arrearage.
Attorney's Fees
Under the terms of the parties' agreement, "the party who is
found to be substantially in violation of this Agreement shall
pay to the party who substantially prevails . . . reasonable
attorneys' fees . . . ." Husband's failure to comply with
paragraph 23(g) of the agreement caused him to be substantially
in violation of the agreement. Moreover, wife substantially
prevailed in enforcing the agreement.
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court 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). The trial court noted that
several factual issues could have been resolved prior to the
hearing. Based on the terms of the agreement, the number of
issues involved, and the respective abilities of the parties to
pay, we cannot say that the trial judge abused his discretion in
awarding wife $750 in attorney's fees.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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