COURT OF APPEALS OF VIRGINIA
Present: Judges Humphr eys, Haley and Alston Argued at Alexandria, Virginia

KATHLEEN MARIE ROTH MEMORANDUM OPINION ∗ BY v. Record No. 1332-10-4 J UDGE JAMES W. HALEY, JR. MARCH 1, 2011 DONALD DAVIS ROTH, II

FROM THE CIRCUIT C OURT OF LOUDOUN COUNTY Thomas D. Horne, Judge David L. Duff (The Duff Law Firm, on brief), for appellant. Christopher W. Schinstock (Cottr ell, Fletcher, Schinstock, Bartol & Cottrell, on brief), for appellee.

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication. I. INTRODUCTION Kathleen Marie Roth (wife) and Donald Da vis Roth, II (husband) entered into a property settlement agreement (PSA) in December 1988, which was incorporated in a final divorce decree in February 1990. Wife maintains the PSA grants her an equitable inte rest in a retirement pension that did not exist at the time of execution of that agreement. We disagree and affirm the trial court’s ruling denying her that interest.
II. BACKGROUND Given our resolution of this case, the relevant facts may be succinctly stated. The parties married in December 1965. During the marriage, husband worked as a teacher for Fairfax County. In th is employment, he acquired pensi on benefits with the county.- 2 - Paragraph thirteen of the PSA addresses the division of husband’s retirement benefits:
13. Retirement Pension The Parties acknowledges [sic] th at the Husband is entitled to retirement benefits through hi s employment with the Fairfax County Board of Education including the Educational Employees Supplemental Retirement System. The Husband agrees that the Wife is entitled to a monetary aw ard from the pension benefits, if, as, and when received by the Husb and; said award being a sum of money equal to forty percen t (40%) of each payment or disbursement received, multiplied by a fraction, the numerator of the fraction being the number of years of the marriage up to the date of separation of the Parties while the Husband was employed by the Fairfax County Board of E ducation; the denominator being the total number of years of th e Husband’s employment with the Fairfax County Board of Education. The Husband further agrees to furnish to the Wife any and all documents necessary to assist her in obtaining direct payment of such funds. The Husband agrees that this Agreement shall serve as authorization to the Virginia Supplemental Retirement System, which administers his retirement be nefits on behalf of the Fairfax County School Board or the custodian of said pension and benefit plan or to his estate to pay to the Wife her agreed upon share of said benefits or lump sum payment. We note for purposes of clarity that the E ducational Employees Supplemental Retirement System and the Virginia Supplemental Retireme nt System (VSRS) are the same entity. Paragraph 2 of the PSA waives any interest s “real or personal . . . whether now owned or hereafter acquired .” (Emphasis added). Likewise, Paragraph 4 of the PSA reads: Except as otherwise specifically provided in this Agreement, each Party shall own, have and enjoy independently of any claim or right of the other, a ll items of tangible and intangible personal property of every kind, now or hereafter owned by him or her . . . . Each Party hereby waives and releases fully any claim or right he or she may have in the a ssets held by or titled in the name of the other Party. The foregoi ng shall apply to all property, including, but not limited to, savings accounts, stocks, bonds, money market accounts, pensions, annuities, and ready asset accounts. (Emphasis added). While both parties had legal counsel, wife’s counsel drafted the agreement.- 3 - Husband acquired an interest in a separa te retirement system run by the Commonwealth, the Virginia Retirement System (VRS), upon its institution in 1990. Husband received benefits under this plan based on his years as a teacher during the marriage. At the time of the agreement, husband possessed an interest only in the VSRS, for the VRS did not yet exist. Husband alone has received benefits from the VRS since his retirement in 1999. When wife learned of husba nd’s interest in the VRS, she filed a motion seeking a portion of those benefits under the PSA. The trial co urt held a hearing on the motion on April 13, 2010. Wife testified that when making the agreem ent, she and husband never discussed husband’s retirement assets. The trial court denied wife a share in the VRS funds. The court held: “Nothing in the Agreement suggests that the partie s contemplated future benefits would accrue to Mr. Roth as a result of his years of service during the marriage.” It went on to state: “Had the parties contemplated the conveyance of future benefits, no t in existence at the ti me of the execution of the Agreement they would have said so.” Wife now appeals.
III. ANALYSIS On appeal, wife argues the parties’ agreem ent plainly grants her a share in husband’s VRS benefits. She maintains th e word “including” in the ag reement shows that she should receive a share of all retirement benefits hus band obtained because of his work during the marriage. For the following reasons, we disagree. We consider the parties’ property settlemen t agreement under the same rules applicable

to contracts. Bailey v. Bailey , 54 Va. App. 209, 215, 677 S.E.2d 56, 59 (2009). It is “the intent of the parties as expressed in the c ontract [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,- 4 - 351 (2008) ( en banc ). We “‘are bound to say that th e 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)). Where a contract contains ambiguity, courts may receive parol evidence to determine the parties’ intention. Aetna Cas. & Sur. Co. v. Fireguard Corp. , 249 Va. 209, 215, 455 S.E.2d 229, 232 (1995). “Contract language is ambiguous when ‘it may be understood in more than one way or when it refers to two or more things at the same time.’” Eure v. Norfolk Shipbldg. & Drydock Corp. , 263 Va. 624, 632, 561 S.E.2d 663, 668 (2002) (quoting Granite State Ins. Co. v. Bottoms , 243 Va. 228, 234, 415 S.E.2d 131, 134 (1992)). Permissible parol evidence includes evidence of “facts and circumstances surroundi ng the parties” and “negotia tions between the parties.” Stroud v. Stroud , 49 Va. App. 359, 367, 641 S.E.2d 142, 146 (2007) (internal quotation marks omitted). Courts generally construe ambiguous language ag ainst the party that drafted the contract, Martin & Martin, Inc. v. Bradley Enters., Inc. , 256 Va. 288, 291, 504 S.E.2d 849, 851 (1998), but will not apply this rule to defeat otherwise persuasive evidence of contractual intent, Jennings v. Jennings , 12 Va. App. 1187, 1194, 409 S.E.2d 8, 13 (1991). We must first determine whether the agreemen t here admits of ambiguity. The relevant provisions tend to support husband ’s interpretation. Both para graphs under the retirement section expressly mention the VSRS, while making no express statement of other plans or future plans. Husband “is entitled to retirement benefits” that “includ[e]” the VSRS. The agreement describes the VSRS as having “his retirement bene fits.” Furthermore, the agreement indicates the parties desire to conclude th eir legal obligations by the contractual language . To that end, the agreement contains an express waiver of retire ment assets except as “specifically provided” by the contractual terms. This reveals a desire for a definitive settlement of retirement assets at the time of contracting. Southerland v. Estate of Southerland , 249 Va. 584, 589, 457 S.E.2d 375,- 5 - 378 (1995). The waiver seems inconsistent with allocation of unnamed, n on-existent assets. Nonetheless, wife correctly notes that saying husband has retirement be nefits “including” the VSRS tends to connote a non-exclusive list. Nextel WIP Lease Corp. v. Saunders , 276 Va. 509, 517, 666 S.E.2d 317, 321-22 (2008). Assuming, without deciding, that the agreement contains an ambiguity permitting the introduction of parol evid ence, and even giving wife this benefit, we find the trial court correctly construed the agreement as giving wife an interest in only the VSRS. The evidence offered by wife does not support her position. Wife testified that when she made the agreement, she had no knowledge of the retirement plans husband possessed. This contradicts the agreement, which expressly mentions the VSRS. See Prospect Dev. Co. v. Bershader , 258 Va. 75, 84, 515 S.E.2d 291, 296 (1999) (stating that parol evidence may not contradict the cont ractual terms). Under familiar principles, if ambiguity exists in a contract, that ambiguity is to be construed against the dr after, here wife. Martin & Martin, Inc. , 256 Va. at 291, 504 S.E.2d at 851; Mahoney v. NationsBank of Va., N.A. , 249 Va. 216, 222, 455 S.E.2d 5, 9 (1995); Jennings , 12 Va. App. at 1194, 409 S.E.2d at 13. Without persuasive evidence concerning an ambiguous provision, it was proper to construe th e provision against the drafter.
III. ATTORNEY FEES Both parties seek attorn ey’s fees upon appeal. “The rationale for the appellate court being the proper forum to determine the propriety of an award of attorney’s fees for efforts expended on appeal is clea r. The appellate court has the opportunity to view the record in its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment.” Rice v. Rice , 49 Va. App. 192, 204, 638 S.E.2d 702, 708 (2006) (quoting O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996)). We have considered the record and conclude “the litigation addr essed appropriate and substantial issues and that neither party- 6 - generated unnecessary delay or expe nse in pursuit of its interests.” Estate of Hackler v. Hackler , 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004); see also Tyszcenko v. Donatelli , 53 Va. App. 209, 225, 670 S.E.2d 49, 57 (2008). Accordingly, both pa rties’ requests for at torney’s fees are denied. For the foregoing reasons, the judgment of the trial court is affirmed. Affirmed.