COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Kloch*

Argued at Alexandria, Virginia 

JERRY P. WILSON 

 OPINION BY 

v. Record No. 2124-97-4 JUDGE LARRY G. ELDER 

 MAY 26, 1998 

MARILYN H. COLLINS (FORMERLY WILSON) 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael P. McWeeny, Judge 

 Beth A. Bittel (Law Offices of Beth A. 

Bittel, on briefs), for appellant. 

 Gwendolyn Jo M. Carlberg (Timothy Bryan 

Beason; Law Offices of Gwendolyn Jo M. 

Carlberg, on brief), for appellee. 

 Both parties appeal from a decree of the trial court 

declaring and enforcing their rights under a property settlement 

agreement that was incorporated into their earlier divorce 

decree. Jerry P. Wilson ("husband") contends the trial court 

erred by (1) ordering him to pay fifty percent of his retirement 

annuity under the Foreign Service Act of 1980 to Marilyn H. 

Collins ("wife"), (2) prohibiting him from making any future 

elections of survivor benefits against his retirement annuity for 

his current wife, and (3) finding him in civil contempt for 

failing to provide wife with a copy of a life insurance policy. 

Wife contends the trial court erred by ruling (1) that husband 

was not in contempt of court when he neglected to provide her 

 

 *Judge John E. Kloch took part in the consideration of this 

case by designation pursuant to Code § 17-116.01. 
 2 

with fifty percent of his retirement annuity following his 

retirement, (2) that wife's right under the parties' agreement to 

approve a life insurance policy obtained by husband was not 

enforceable by the contempt powers of the court, (3) that wife 

was entitled to only $750 in attorney fees as a sanction for 

husband's contempt, (4) that husband's election of a partial 

survivor benefit for his current wife prior to the commencement 

of his retirement annuity did not violate the parties' agreement, 

and (5) that wife was not entitled to interest at the judgment 

rate for all past due retirement payments owed to her by husband. 

 For the reasons that follow, we reverse in part, vacate in part, 

and remand. 

 I. 

 FACTS 

 The parties married in 1959, had two sons, the youngest of 

whom was born on March 23, 1968, separated in 1978, and were 

divorced on January 19, 1983. Beginning in the 1960s, husband 

was employed by the Foreign Service of the United States 

Department of State. 

 On December 31, 1981, after the parties separated but before 

they were divorced, they entered into a property settlement 

agreement ("agreement"). The agreement contained the following 

provisions regarding wife's entitlement to husband's retirement 

annuity from the State Department and husband's obligation to 

provide life insurance for wife and the parties' children: 

 9. LIFE INSURANCE. . . . When the youngest 
 3 

child attains the age of twenty-three (23) 

years, the Husband agrees to keep in full 

force and effect, at his expense, and to 

designate the Wife as irrevocable beneficiary 

and the children as secondary beneficiaries, 

a life insurance policy as approved by the 

Wife, in the amount of $50,000.00. 

* * * * * * * 

 14. RETIREMENT BENEFITS. The parties agree 

that the Wife shall receive fifty percent 

(50%) of any annuity that the Husband shall 

receive upon his retirement from the State 

Department, and the Husband agrees to file 

all necessary forms with the Treasury 

Department of the U.S. Government in order to 

accomplish the above transfer of retirement 

benefits to the Wife, in accordance with the 

Foreign Service Act of 1980, 22 USC Sec. 4054 

and 4060. 

(underline in original). 

 On November 16, 1982, the parties executed an amendment of 

the agreement ("amendment"). The relevant portions of the 

amendment stated: 

 6. Paragraph Fourteen (14) of the Agreement 

is hereby amended by labeling the existing 

Paragraph "A", and adding the following 

paragraph: 

 "14. A. Same as existing Paragraph Fourteen 

(14) of the Agreement. 

 B. The parties agree that if the 

Husband separates from the service prior to 

his qualifying for retirement benefits 

referred to in Paragraph 14A above, and, 

therefore, receives a lump-sum refund of his 

retirement contributions, the Wife shall 

receive fifty percent (50%) of any lump-sum 

amount that the Husband shall receive." 

 7. The Agreement is further amended by the 

addition of the following paragraph: 

 "SURVIVOR BENEFITS. The parties agree that 
 4 

the Wife shall receive a survivor annuity in 
 5 

 an amount equal to thirty-five percent (35%) 

of the Husband's retirement or full annuity." 

(underline in original). 

 On January 19, 1983, the trial court entered a decree 

divorcing the parties. The trial court's decree expressly 

"affirmed, ratified, and incorporated" the provisions of both the 

agreement and the amendment. 

 On January 14, 1984, wife remarried. She was forty-five 

years old at the time of her remarriage. Husband remarried on 

February 26, 1983. 

 On March 23, 1991, the parties' youngest son turned 

twenty-three years old. Despite his contractual obligation, not 

until September 16, 1996, did husband obtain a life insurance 

policy that designated wife as the irrevocable beneficiary and 

the parties' children as secondary beneficiaries. In addition, 

husband never consulted wife regarding the policy he obtained, 

and she neither approved nor obtained a copy of the policy he 

selected. 

 On September 29, 1996, husband retired from the State 

Department. He neither informed wife of his retirement nor 

arranged for her to receive fifty percent of his monthly annuity 

payments. Husband's first payments from his annuity were issued 

to him on November 2, 1996. His gross benefit was $5,218.33 for 

September and October 1996, $5,050 for November 1996, and $5,085 

every month thereafter. 

 On February 12, 1997, husband filed a bill of complaint for 
 6 

declaratory judgment with the trial court. Husband requested the 

trial court to determine the rights of the parties in his 

retirement annuity under paragraph fourteen of the agreement and 

in the related survivor benefits under paragraph seven of the 

amendment. 

 On March 11, 1997, wife filed a verified petition for a rule 

to show cause and a motion to dismiss husband's bill of 

complaint. She requested the trial court to find husband in 

contempt for failing to pay her fifty percent of his retirement 

annuity as required by the parties' divorce decree. She asserted 

that her remarriage did not terminate her entitlement to 

husband's annuity. She also requested the trial court to find 

husband in contempt for failing to obtain a life insurance policy 

previously approved by her and to award her attorney fees as a 

sanction. 

 On April 1, 1997, the trial court entered an order for a 

rule to show cause against husband. The trial court subsequently 

consolidated husband's bill of complaint and wife's show cause 

proceeding. 

 After the parties submitted briefs explaining their 

respective positions, the trial court held hearings on July 3 and 

July 25, 1997. At the hearing on July 3, the trial court ruled 

on husband's bill of complaint for declaratory judgment and the 

issues in wife's petition related to her entitlement to husband's 

retirement annuity. The trial court found that the language of 
 7 

paragraph fourteen was unambiguous and that wife was entitled 

fifty percent of husband's retirement annuity even though she had 

remarried in 1984. Although, under the Foreign Service Act of 

1980, wife's remarriage disqualified her from claiming benefits 

directly from the State Department, the trial court reasoned that 

the "remarriage bar" of the Act did not apply to the parties' 

agreement. The court stated: 

 The reference to the Foreign Service Act of 

1980 is an acknowledgement of the existence 

of the Act, an acknowledgement of its 

language, an acknowledgement of where the 

benefits flow from, but I see nothing here 

which incorporates limitations which run 

contrary to the express statement that wife 

shall receive [fifty] percent of any annuity. 

 The trial court concluded that husband was obligated under 

the agreement to pay wife fifty percent of his retirement annuity 

and ordered him to pay wife $22,931.67, an amount equal to fifty 

percent of all retirement benefits he had received to date. The 

trial court then ruled that husband was barred from reducing the 

amount of his gross monthly annuity payment by subsequently 

increasing the amount of the survivor benefit for his current 

wife and that wife's remarriage barred her from receiving the 

survivor benefit set forth in paragraph seven of the amendment. 

The trial court also ruled that husband was not in contempt of 

court for failing to pay wife her share of his retirement 

annuity. 

 At the hearing on July 25, the trial court ruled that "there 

was civil contempt" when husband failed to obtain a life 
 8 

insurance policy that complied with paragraph nine of the 

agreement after the parties' youngest son reached the age of 

twenty-three. However, the trial court found that "the vast 

majority" of husband's contempt had since been purged. 

Specifically, the court found that husband had obtained a policy 

that complied with the requirements of the agreement. The court 

concluded that wife's right to approve the insurance policy 

obtained by husband "was not enforceable as a contempt issue." 

The court stated: "What has not been done as of yet is to 

furnish a copy of that policy, which I think is implicit in the 

terms of the agreement." The court gave husband sixty days to 

purge his contempt by providing wife with a copy of the policy. 

The court also ordered him to pay $750 of wife's attorney fees as 

a sanction. 

 All of the trial court's rulings and findings were 

incorporated into a decree that was entered on August 4, 1997. 

 II. 

 RETIREMENT ANNUITY 

 Husband contends the trial court erred when it concluded 

that wife had any entitlement to his retirement annuity under the 

Foreign Service Act. He argues wife's remarriage at the age of 

forty-five disqualified her from receiving any portion of his 

annuity under the "remarriage clause" of 22 U.S.C. § 4054(a)(2) 

and that the parties did not expressly negate the effect of 22 

U.S.C. § 4054(a)(2) in their agreement. As such, he argues the 
 9 

trial court erred when it failed to apply 22 U.S.C. § 4054(a)(2) 

to the case at hand. We agree. 

 Generally, a former spouse who was married to a foreign 

service member for the requisite number of years is entitled to a 

share of the member's retirement annuity, regardless of the 

member's wishes. See 22 U.S.C. § 4054(a)(1). The United States 

Congress conferred this entitlement in 1981 after recognizing 

that, due to the frequent transfers of foreign service members 

from post to post, spouses of members rarely establish their own 

independent careers or retirement pensions. See Nicholson v. 

Nicholson, 21 Va. App. 231, 238 n.5, 463 S.E.2d 334, 338 n.5 

(1995) (citing S.Rep. No. 96-913, at 67 (1980), reprinted in 1980 

U.S.C.C.A.N. 4419, 4485). This entitlement essentially functions 

as a type of insurance for members' spouses to protect them 

against the risk that their marriages might dissolve after years 

of making the sacrifices inherent in being the spouse of a 

member. Under 22 U.S.C. § 4054(a)(1)(A), if the former spouse is 

married to a foreign service member throughout his or her 

creditable service, the former spouse is entitled to receive 

fifty percent of the member's retirement annuity. If the former 

spouse is divorced from the member prior to the end of his or her 

creditable service, the former spouse is entitled to a "pro rata 

share" of fifty percent of the member's annuity. 22 U.S.C. 

§ 4054(a)(1)(B). 

 The statutory entitlement of a former spouse to a foreign 
 10 

service member's retirement annuity under 22 U.S.C. § 4054 is not 

absolute. First, if a former spouse remarries "before becoming 

60 years of age" prior to the commencement of the member's 

annuity, then the former spouse is "disqualified" from receiving 

any annuity. 22 U.S.C. § 4054(a)(2).1

 In addition, the Foreign 

Service Act of 1980 includes a mechanism by which a former 

spouse's statutory entitlement may be altered through either 

negotiation or adjudication. See 22 U.S.C. § 4060(b)(1)(A). 

Through either a "spousal agreement" or a "court order," the 

parties or a court may vary "any right" the former spouse has in 

the member's retirement annuity from those set forth in 22 U.S.C. 

§ 4054(a). See 22 U.S.C. § 4060(b)(1)(A)(i); but see 22 U.S.C. 

§ 4054(a)(4); see also Nicholson, 21 Va. App. at 238, 463 S.E.2d 

at 338. However, a spousal agreement or court order has the 

legal effect of altering a former spouse's entitlement under 22 

U.S.C. § 4054(a) only "if and to the extent expressly provided 

for in the terms of that spousal agreement or court order." 22 

U.S.C. § 4060(b)(1)(A) (emphasis added).2

 Put another way: 

 

 122 U.S.C. § 4054(a)(2) states in full: "A former spouse 

shall not be qualified for an annuity under this subsection if 

before the commencement of that annuity the former spouse 

remarries before becoming 60 years of age." Both parties note 

that Congress subsequently lowered the age at which a former 

spouse may remarry and still preserve his or her right to the 

foreign service member's retirement annuity to age fifty-five. 

See 22 U.S.C. § 4068. This provision does not apply to this case 

because it covers only former spouses who remarried "on or after 

November 8, 1984." 22 U.S.C. § 4068. The record indicates that 

wife remarried on January 14, 1984. 

 222 U.S.C. § 4060(b)(1)(A) states in relevant part: 
 11 

 In the Act, Congress provided that this 

statutory entitlement would control division 

of the foreign service pension "[u]nless 

otherwise expressly provided by any spousal 

agreement [or court order]."3

Wilkinson v. Wilkinson, 785 F.Supp. 1037, 1039 (D.D.C. 1992), 

aff'd, 986 F.2d 546 (D.C. Cir. 1993) (citation omitted). 

 In this case, wife's remarriage at the age of forty-five, 

more than twelve years prior to the commencement of husband's 

retirement annuity, disqualified her from any statutory

entitlement she previously had in the annuity. See 22 U.S.C. 

 

 In the case of any participant or annuitant 

who has a former spouse who is covered by a 

court order or who is a party to a spousal 

agreement-- 

 (i) any right of the former spouse to 

any annuity under section 4054(a) of 

this title in connection with any 

retirement or disability annuity of the 

participant, and the amount of any such 

annuity; 

* * * * * * * 

 shall be determined in accordance with that 

spousal agreement or court order, if and to 

the extent expressly provided for in the 

terms of that spousal agreement or court 

order. 

 3We disagree with wife's argument that the act of entering 

into a spousal agreement preempts all of the "default provisions" 

of 22 U.S.C. § 4054. The language of 22 U.S.C. § 4060(b)(1)(A) 

is clear: a spousal agreement or court order negates the 

provisions of 22 U.S.C. § 4054(a) only "if and to the extent 

expressly provided for in the terms" of the agreement or order. 

Thus, unless the terms of a spousal agreement or court order 

expressly alter the respective rights of the parties under 22 

U.S.C. § 4054(a), the provisions of that statute govern the 

parties' respective entitlements to the member's annuity. 
 12 

§ 4054(a)(2). Thus, the sole issue in this case is whether the 

terms of paragraph fourteen of the agreement and paragraph seven 

of the amendment "expressly" altered the substance of wife's 

rights under 22 U.S.C. § 4054(a)(2). Cf. Nicholson, 21 Va. App. 

at 239-40, 463 S.E.2d at 338-39. If the provisions of the 

parties' agreement can be reasonably construed to "expressly" 

negate the disqualifying effect of remarriage before the age of 

sixty on wife's entitlement to husband's retirement annuity, then 

the trial court's judgment must be affirmed. See id. at 239, 463 

S.E.2d at 338. 

 "When a judgment is based upon the construction or 

interpretation of a contract, an appellate court is not bound by 

the trial court's construction of the contract's provisions." 

Id. at 239, 463 S.E.2d at 338 (citing Smith v. Smith, 3 Va. App. 

510, 513, 351 S.E.2d 593, 595 (1986)). 

 A separation agreement . . . is a contract 

and must be construed as such. Where the 

agreement is plain and unambiguous in its 

terms, the rights of the parties are to be 

determined from the terms of the agreement 

and the court may not impose an obligation 

not found in the agreement itself. 

Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764 

(1994). In order to expressly alter a former spouse's rights in 

a retirement annuity under the Foreign Service Act of 1980, 

"[t]he intent of the parties or court to waive or vary this 

federal statutory right must be manifest from the 'express' terms 

of the agreement or decree." Nicholson, 21 Va. App. at 240, 463 
 13 

S.E.2d at 339. 

 We hold that the language of paragraph fourteen of the 

agreement and paragraph seven of the amendment does not 

constitute an express negation of the "remarriage clause" of 22 

U.S.C. § 4054(a)(2). The only issues expressly addressed in 

these paragraphs are (1) the percentage of wife's share of 

husband's annuity upon his retirement or earlier separation from 

the foreign service, (2) wife's entitlement to a separate 

"survivor annuity," and (3) husband's duty to perfect wife's 

entitlement by filing the required paperwork. Neither paragraph 

includes any reference to 22 U.S.C. § 4054(a)(2) or the issue of 

whether wife's entitlement to a share of husband's retirement 

annuity is contingent upon her remaining unmarried. Although 

each paragraph states that wife "shall receive" the enumerated 

benefits, the intent of the parties to extend wife's statutory 

entitlement beyond the subsequent occurrence of her remarriage 

before the age of sixty can only, at most, be implied from this 

language. Because the intent of the parties to abrogate the 

effect of 22 U.S.C. § 4054(a)(2) is not manifest from the terms 

of their agreement, that code section applies to wife. See id.

 We disagree with wife's argument that paragraph fourteen was 

intended to obligate husband to personally pay her fifty percent 

of his retirement annuity regardless of her statutory 

entitlement. This argument ignores the legal backdrop on which 

the parties negotiated and drafted paragraph fourteen. At the 
 14 

time the parties negotiated their agreement, wife was already 

entitled to a pro rata share of husband's annuity under 22 U.S.C. 

§ 4054(a)(1)(B). The direct references to 22 U.S.C. § 4054 and 

22 U.S.C. § 4060 in the paragraph indicate that the parties were 

aware of wife's existing statutory entitlement and that they 

intended to alter it by expressly increasing wife's share from a 

pro rata portion of fifty percent of husband's annuity to fifty 

percent. We would contradict the clear intent of paragraph 

fourteen were we to construe it as creating a new right for wife 

in the income stream husband received from his retirement 

annuity. Instead, the paragraph's language indicates that it was 

intended only to modify wife's existing statutory rights under 

the Foreign Service Act. 

 Based on our construction of the parties' agreement, we hold 

that the trial court erred when it concluded that wife was 

entitled to fifty percent of husband's retirement annuity. The 

restriction on wife's qualification for a share of husband's 

annuity contained in 22 U.S.C. § 4054(a)(2) was not expressly 

altered in their agreement. Therefore, wife's remarriage in 1984 

at the age of forty-five and prior to the commencement of 

husband's benefits rendered her "not qualified for an annuity" 

under 22 U.S.C. § 4054(a)(2). Moreover, because wife no longer 

has any rights in husband's retirement annuity, the trial court 

also erred when it concluded that the agreement restricted 

husband from making future deductions from his annuity, including 
 15 

additional survivor benefit elections, that would have the effect 

of reducing the amount of his monthly payments. 

 In light of our conclusion that wife's remarriage terminated 

her entitlement to husband's retirement annuity, we need not 

address wife's arguments regarding (1) husband's pre-retirement 

election of a partial survivor benefit for his current wife, (2) 

husband's alleged contempt for failing to pay her any portion of 

his annuity prior to the show cause proceeding, and (3) the trial 

court's refusal to award her interest at the judgment rate on the 

past due retirement payments allegedly owed to her by husband. 

 III. 

LIFE INSURANCE POLICY 

 Husband contends the trial court erred when it found him in 

contempt for failing to provide wife with a copy of the life 

insurance policy he obtained pursuant to paragraph nine of the 

agreement. Wife contends the trial court erred when it concluded 

that her right under paragraph nine to approve the life insurance 

policy obtained by husband was not enforceable by the contempt 

power of the court. We agree with both contentions. 

 Under Code § 20-109.1, a trial court can enforce the 

provisions of a separation agreement that have been incorporated 

into a divorce decree "in the same manner as any provision of 

such decree." As such, the incorporated provisions of a 

separation agreement are enforceable by the contempt power of the 

court. Rodriguez v. Rodriquez, 1 Va. App. 87, 90, 334 S.E.2d 
 16 

595, 597 (1985) (citing Morris v. Morris, 216 Va. 457, 459, 219 

S.E.2d 864, 866-67 (1975)). A person is in "contempt" of a court 

order only if it is shown that he or she has violated its express

terms. See Winn v. Winn, 218 Va. 8, 10, 235 S.E.2d 307, 309 

(1977). "'[T]he process for contempt lies for disobedience of 

what is decreed, not for what may be decreed.'" Id. (quoting 

Taliaferro v. Horde's Adm'r, 22 Va. (1 Rand.) 242, 247 (1822)). 

 "[B]efore a person may be held in contempt 

for violating a court order, the order must 

be in definite terms as to the duties thereby 

imposed upon him and the command must be 

expressed rather than implied." 

Id. (citation omitted). If the actions of the alleged contemnor 

do not violate a clearly defined duty imposed upon him or her by 

a court's decree, the alleged contemnor's actions do not 

constitute contempt. Id. at 10-11, 235 S.E.2d at 309. 

 We hold that the trial court erred when it concluded, for 

the reason stated, that husband was in contempt of the parties' 

divorce decree. The divorce decree incorporated paragraph nine 

of the parties' agreement, which required husband "to keep in 

full force and effect" a life insurance policy with enumerated 

terms "as approved by the Wife." The trial court concluded that 

husband was in contempt of paragraph nine because he had not 

provided wife with a copy of the life insurance policy he had 

obtained. It stated: "What has not been done as of yet is to 

furnish a copy of that policy, which I think is implicit in the 

terms of the agreement." (Emphasis added). As noted by the 
 17 

trial court, the duty upon husband to provide wife with a copy of 

the insurance policy can be, at most, implied from the language 

of paragraph nine. The express duty imposed by paragraph nine 

upon husband was to obtain wife's approval of the life insurance 

policy he selected. Wife's approval of the policy can be 

obtained in a variety of ways, including sending her a copy for 

her review. Because sending a copy of the life insurance policy 

was not a clearly defined duty imposed upon husband by the 

agreement and the decree, husband's failure to do so could not 

constitute contempt. Cf. id.

 We also hold that the trial court erred when it concluded 

that wife's right under the decree to approve the life insurance 

policy selected by husband was "not enforceable as a contempt 

issue." The express terms of paragraph nine required husband to 

procure and maintain a life insurance policy of which wife 

"approved." Although it may be difficult to imagine how a life 

insurance policy that complied with the requirements of paragraph 

nine could be reasonably disapproved by wife, husband nonetheless 

has a clearly defined duty to obtain her approval of the policy 

he selected. Because the parties' divorce decree expressly 

required husband to obtain wife's approval of the life insurance 

policy in question, it was proper for wife to seek enforcement of 

this provision in a contempt proceeding.4

 

 4We also note that, as a sanction for his civil contempt, 

the trial court ordered husband to provide wife with a copy of 

the life insurance policy within sixty days of its order. 

Although the trial court could not hold husband in contempt for 
 18 

 

 IV. 

 ATTORNEY FEES 

 Based on our conclusion that the trial court erred when it 

found husband in contempt of the divorce decree, we vacate its 

order awarding wife $750 in attorney fees as a sanction. On 

remand, the trial court may reconsider the issue of attorney fees 

if it finds husband in contempt and deems such an award to be an 

appropriate sanction. 

 For the foregoing reasons, we reverse the trial court's 

orders (1) directing husband to pay wife fifty percent of his 

past and future retirement annuity, (2) requiring him to make 

related arrangements with the State Department and tax 

authorities, (3) restricting him from making future deductions 

from his retirement annuity, and (4) finding him in civil 

contempt for violating paragraph nine of the parties' agreement 

by failing to provide wife with a copy of the life insurance 

policy. We vacate the contempt sanctions imposed by the trial 

court and remand this case to the trial court for further 

contempt proceedings consistent with this opinion. 

 Based on the circumstances of this case, we deny wife's 

violating the divorce decree based upon his failure to provide 

wife with a copy of the policy, a trial court would be within its 

discretion to order husband to provide wife with a copy of the 

policy as a sanction for his previous failure to obtain her 

approval. "The punishment in a civil contempt proceeding 'is 

adapted to what is necessary to afford the injured party remedial 

relief for the injury or damage done by the violation of [the 

trial court's order]." Rainey v. City of Norfolk, 14 Va. App. 

968, 974, 421 S.E.2d 210, 214 (1992) (citation omitted). 
 19 

request for an award of attorney fees and costs related to this 

appeal. 

 Reversed in part,

vacated in part,

and remanded.