COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Hale y and Senior Judge Annunziata Argued at Alexandria, Virginia

DIANE BARKER, F/K/A DIANE HUTSON-WILEY MEMORANDUM OPINION * BY v. Record No. 0740-06-4 J UDGE JAMES W. HALEY, JR. MARCH 20, 2007 JAMES HUTSON-WILEY

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Robert W. Wooldr idge, Jr., Judge Brian D. West (The West Law Grou p, P.C., on briefs), for appellant. Gregory L. Murphy (Joseph B. Mullaney; Vorys, Sater, Seymour and Pease, LLP, on brief), for appellee.
Diane Barker (wife) appeals the trial cour t’s decision terminating James Hutson-Wiley’s (husband) spousal support obligations under the di vorced couple’s Septem ber 1, 2001 property settlement agreement (PSA). Wife argues: (1 ) the trial court erred in holding that husband’s spousal support obligation terminated upon her re marriage, pursuant to Code § 20-109(D); and, (2) the trial court erred in denying the admissio n of parol evidence to establish the meaning and intent of ambiguous language in the PSA. Finding no er ror, we affirm.
FACTS Husband and wife separated on May 24, 1993. On November 17, 1993 , husband and wife executed a Comprehensive Agre ement Concerning Marital Sepa ration, Support, and Property Settlement (Comprehensive Agreement) documenting each party’s mutual ma intenance and support obligations, in addition to “all of their property rights, and all rights, claims, relationships, or

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - obligations between them . . . .” The Comprehensive Agreement wa s incorporated into a divorce decree entered on Au gust 2, 1994. Several years later, on September 1, 2 001, husband and wife executed the PSA to “supercede and repl ace the aforesaid Co mprehensive Agreement in its entirety.” The PSA outlined husband’s spousal support obligation and explained th at “such payments . . . shall not be modified or terminated except in the sole event of the d eath of either party.” Th e document further stated, “The parties agree that this [PSA ] shall constitute the entire agreemen t of the parties and that there are no other agreements or representations . . . made or relied upon by either party in executing this document.” The PSA was incorporated into a Consen t Order entered by the Ci rcuit Court of Fairfax County on October 9, 2001. Wife remarried on November 27, 2004. Husband, therefore, terminated his spousal support payments pursuant to Code § 20-109(D). Wife subsequently filed a Veri fied Petition for Rule to Show Cause on July 11, 2005, alleging that husban d’s discontinued support violated the terms of the PSA. Pursuant to Code § 20- 109(D), the trial cour t dismissed wife’s pe tition, explaining, “In short, the [PSA] does not clearly, expressly, and unequivocally preserve [wife’s] right to spousal support . . . in the ev ent of remarriage.”
PAROL EVIDENCE Wife argues that the trial cour t should have admitted parol evidence to de termine the parties’ intent and the meaning of the PSA. We disagree. “[M]arital property se ttlements . . . are contracts subjec t to the rules of construction applicable to contracts generall y, including the appli cation of the plain me aning of unambiguous contractual terms.” Pysell v. Keck , 263 Va. 457, 460, 559 S.E.2d 677, 678 (2002). See also Southerland v. Southerland , 249 Va. 584, 588, 457 S. E.2d 375, 378 (1995). Therefore, when the terms of a contract are clear and unambiguous, the trial court must construe them according to their- 3 - plain meaning. Bridgestone/ Firestone, Inc. v. Prince William Square Assocs. , 250 Va. 402, 407, 463 S.E.2d 661, 664 (1995 ). Whether a contract is ambiguou s is a question of law subject to de

novo review on appeal. Wilson v. Holyfield , 227 Va. 184, 187, 313 S. E.2d 396, 398 (1984). Extrinsic evidence is admissible to explain an ambiguity in a contract. Cohan v. Thurston , 223 Va. 523, 525, 292 S.E.2d 45, 46 (1982) . However, as the Suprem e Court of Virginia has explained, “[c]ontracts are not rendered ambiguou s merely because the parties or their attorneys disagree upon the meaning of the language empl oyed to express the agre ement.” Doswell Ltd. P’ship v. Va. Elec. & Power Co. , 251 Va. 215, 222- 23, 468 S.E.2d 84, 88 (1996); see also Wilson , 227 Va. at 187, 313 S.E.2d at 398. Rath er, it is the job of the trial court to: construe the contract ma de by the parties, not to make a contract for them. The question for the court is what did th e parties agree to as evidenced by their contract. The gui ding light in the construction of a contract is the intention of the pa rties as expressed by them in the words they have used, and courts are bound to say that the parties intended what the written in strument plainly declares. Magann Corp. v. Electrical Works , 203 Va. 259, 264, 123 S.E.2d 377, 38 1 (1962); Meade v. Wallen , 226 Va. 465, 467, 311 S.E.2d 103, 104 (19 84). Therefore, if the intent of the parties can be determined from the language they employ in their co ntract, parol evidence re specting their intent is inadmissible. Amos v. Coffey , 228 Va. 88, 91-92, 320 S.E.2d 335, 33 7 (1984); see also Godwin v.
Kerns , 178 Va. 447, 451, 17 S.E.2d 410, 412 (1941) (“[P]aro l evidence . . . is inadmissible to vary, contradict, add to, or explain the terms of a complete, unambi guous, unconditional, written instrument.”). In this cause, wife argues that the trial court sh ould have considered language from the original Comprehensive Agreement when interpreting the parties’ in tentions, as expressed in the PSA. The PSA, however , explicitly states: This Settlement Agreement shall supercede and replace the aforesaid Comprehensive Agreement in its entirety . Hereafter, such Comprehensive Agreement shall be null and void as concerns the- 4 - parties’ remaining obligations ther eunder, but not as to the fully executed obligations of the parties. This Settlement Agreement shall henceforth constitute the parties’ sole and entire agreement

. (Emphasis added). The PSA also clearly states that husband’s obl igation to pay spousal support “shall not be modified or terminated except in th e sole event of the death of either party.” Most importantly, the PSA unambig uously declares that its terms “shall constitute the entire agreement of the parties and that there are no other agreements or representations , written or oral, made or relied upon by either party in executing this document.” (Emphasis added). We hold, therefore, that the PSA plainly declares the parties’ intent that th e PSA operate as their so le agreement, and parol evidence is inadmissible. Wife argues that th is cause is similar to Gayler v. Gayler , 20 Va. App. 83, 455 S.E.2d 278 (1995), where parol eviden ce was admitted to evince the parties’ intent that spousal support would survive the wife’s remarriage. The Gayler decision, however, is clea rly distinguisha ble from this cause. In Gayler , the parties executed an original separati on agreement, followed by an addendum, and both agreements were incorpor ated in a final decree of divo rce. This Court approved the admission of parol evidence becaus e “the addendum was executed in contemplation of the parties’ forthcoming final divorce decree.” Id. at 86-87, 455 S.E. 2d at 280. In this cause, however, the parties origina lly executed the Comprehensive Agreement that was later incorporated into a final divorce decr ee on August 2, 1994. The parties subsequently created a new agreement, the PSA , which was intended to replace the Comprehensive Agreement “in its entirety.” The PSA was then incorporated into a final consent order. Therefore, as the trial court declared, “Unlike in Gayler , where two documents formed the contract between the parties, here only the current [PSA] does so, and only the [PSA] may be considered.” For the above reasons, we uphold the trial court’s decisi on denying the admission of parol evidence to prove th e terms of the PSA.- 5 - TERMINATION OF SPOUSAL SUPPORT UPON REMARRIAGE Code § 20-109(D) plainly stat es, “Unless otherwise provided by stipulation or contract, spousal support and maintenance shall terminate upon the death of either party or remarriage of the spouse receiving support.” (Emphasis added). This Court, on several occasions, has discus sed at length the function and the purpose of Code § 20-109. In Radford v. Radford , 16 Va. App. 812, 813, 433 S.E.2d 35, 36 (1993), we explained, “By resolving ambiguity, Code § 20-109 reduces litigation. To permit its mandate to be overcome by implication would introduce am biguity, encourage litigation and, thereby, undermine the statute’s purpose.” Therefore, to overcome the requirements of the statute, “the agreement must contain clear and express languag e evincing the parties’ intent that spousal support will continue after remarri age; otherwise, remarriage termin ates the obligation.” Miller v. Hawkins , 14 Va. App. 192, 197, 415 S.E.2d 861, 864 (1992). We have articulated the principl e of judicial precedent, stating: Under Virginia law, a decision of one panel “becomes a predicate for application of the doctrine of stare decisis ” and cannot be overruled except by the Cour t of Appeals sitting en banc or by the Virginia Supreme Court. This pr inciple applies not merely to the literal holding of the cas e, but also to its ratio decidendi , the essential rationale in the case that determines the judgment. Congdon v. Congdon , 40 Va. App. 255, 265, 578 S.E.2d 833, 838 (2003) (quoting Johnson v. Commonwealth , 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996)). The cause at hand, therefore, is controlled by our decisions in MacNelly v. MacNelly , 17 Va. App. 427, 437 S.E.2d 582 (1993), and Hardesty v. Hardesty , 40 Va. App. 663, 581 S.E.2d 213 (2003). In MacNelly , the parties agreed that husband woul d pay spousal support for a fixed term of seven years or until the death of either party. The trial court ruled in favor of wife, because their agreement was “silent” on the issue of remarriage. 17 Va. App. at 429, 437 S.E.2d at 583. We reversed, holding that “in order to accomplish the stated objective of the statute to resolve- 6 - ambiguity and thereby reduce litigat ion, any attempt to abrogate the effect of the statute requires express language either citing th e statute or expressly stating th at remarriage does not terminate the obligation.” Id. at 430, 437 S.E.2d at 584. Later, in Langley v. Johnson , 27 Va. App. 365, 373, 499 S.E.2d 15, 19 (1998), 1 we declared, “MacNelly could not be clearer. The absence of express language stating that remarriage w ill not terminate the obligation mandates the conclusion that spousal support terminates upon remarriage by operation of the statute[].” In Hardesty , the PSA stated that spousal support “cannot terminate for any reason.” 40 Va. App. at 665, 581 S.E.2d at 215. Wife argued th at the agreement expressed a desire for support to survive her remarriage. We upheld th e trial court’s termination of spousal support, explaining, “no language in any part of the PSA e xplicitly evinces the par ties’ intent to avoid operation of the statute as to remarriage.” Id. at 669, 581 S.E.2d at 216. In so holding, we specifically relied on the language in MacNelly , requiring “‘express langu age either citing the statute or expressly stating that remarriage does not term inate the obligation.’” Id. at 667-68, 581 S.E.2d at 216 (quoting MacNelly , 17 Va. App. at 430, 437 S.E.2d at 584); see also Baldwin v. Baldwin , 44 Va. App. 93, 101, 603 S.E.2d 172, 175 (2004) (“Hardesty can best be understood as recognizing a statutory preset that can be undone only by the clearest possible expression of contractual intent.”).

1 As here, the wife in Langley relied on Gayler , where this Court ru led that the language of the agreement evinced the parties’ intent th at spousal support would survive remarriage. 27 Va. App. at 373-74, 499 S.E.2d at 19. The Langley Court, however, rejected wife’s argument, focusing on a footnote in Gayler where we explained: “The use of the term ‘only’ by the parties is alone not determinative of the issue. Absent the reference to the effect of remarriage in the original agreement, the language of the addendum standing alone would not be sufficient to evince an intent of the parties to avoid the operation of [Code § 20-109(D)].” Id. at 374, 499 S.E.2d at 19 (quoting Gayler , 20 Va. App. at 86 n.2, 455 S.E.2d at 280 n.2).- 7 - In this cause, the PSA stat ed that husband’s spousal s upport obligation “shall not be modified or terminated except in the sole event of the death of either party. ” The PSA, therefore, was silent on the issue of remarriage. Based on our hold ings in MacNelly and Hardesty , we agree with the trial court’s ruling that “the [PSA] does not clearly, expressly, and unequivocally preserve [wife’s] right to spousal support . . . in the even t of remarriage.” For the above reasons, we uphold the decision of the trial court. Affirmed.