COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

MERI DELL SHARBUTT-RIDGE 

 

v. Record No. 0736-97-1 

 

JAMES JOSEPH RIDGE 

 MEMORANDUM OPINION* BY 

and JUDGE NELSON T. OVERTON 

 FEBRUARY 24, 1998 

JAMES JOSEPH RIDGE 

v. Record No. 0870-97-1 

MERI DELL SHARBUTT-RIDGE 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Marc Jacobson, Judge 

 Priscilla M. Rae; Louis W. Kershner (Kershner 

and Hawkins, P.C., on briefs), for Meri Dell 

Sharbutt-Ridge. 

 J. Barry McCracken (Cook & McCracken, on 

briefs), for James Joseph Ridge. 

 Mrs. Meri Dell Sharbutt-Ridge (wife) and James Joseph Ridge 

(husband) appeal an order of the City of Norfolk Circuit Court 

denying wife's motion to reopen their divorce decree. Wife 

asserts that the trial court erred when it refused to increase 

her share of her husband's military pension, refused to require 

that husband pay federal income taxes on her share of the pension 

and refused her request for attorney's fees. Husband has 

appealed only that portion of the order denying him his 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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attorney's fees. For the reasons set forth below, we affirm in 

part and remand for reconsideration. 

 The parties were married on June 25, 1960, separated on 

April 18, 1985 and divorced on October 14, 1988. Their divorce 

decree incorporated the parties' separation agreement. The 

agreement disposed of all the marital assets including the 

pension husband received after retiring from thirty-one years of 

service in the United States Navy. It classified the pension as 

a "personal property right authorized under 10 U.S.C.A. 1408 et 

seq. ('Uniformed Service Former Spouses Protection Act')" 

(USFSPA). Under the terms of the agreement, wife would receive 

thirty-nine percent (39%) of the "gross retirement to which he is 

then entitled." 

 Beginning on June 1, 1988 the United States Navy paid wife 

39% of husband's retirement pay minus applicable federal income 

taxes. Husband characterized the payment as alimony on his 

federal tax returns; deductible to the payor, included by the 

payee. At the same time, wife characterized her share as a 

property split incident to divorce; excluded from her taxable 

income. In 1990, the Internal Revenue Service assessed over six 

thousand dollars in back taxes, penalties and interest against 

her. Wife paid the assessment and has paid taxes on her share 

ever since. 

 Wife filed her motion to reopen on December 12, 1994 

alleging the intent of the separation agreement was for her to 
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receive her share before his taxes had been deducted, not after. 

 Additionally, she claimed that he was responsible for past and 

future payments of the taxes levied on her share. Husband 

claimed that the definition of "disposable retired or retainer" 

pay existing at the time of the agreement allowed payment of her 

share only after his taxes had been deducted. Additionally, he 

disputed the jurisdiction of the circuit court to hear what was 

essentially an appeal of the decision of a federal administrative 

agency, the IRS. 

 The trial court denied wife's motion to reopen on March 27, 

1997. Both parties have appealed that decision. 

USFSPA

 The main bone of contention between the parties is the 

intended effect of USFSPA on the incorporated separation 

agreement they created in 1988. USFSPA authorizes state courts 

to treat a retiree's "disposable retired or retainer pay . . . 

either as property solely of the member or as property of the 

member and his spouse in accordance with the law or the 

jurisdiction of such court." 10 U.S.C. § 1408 (1988). In 1988 

"disposable retired pay" was defined by 10 U.S.C. § 1408(a)(4) as 

 the total monthly retired or retainer pay to 

which a member is entitled less amounts which 

. . . (C) are properly withheld for Federal, 

State, or local income tax purposes, if the 

withholding of such amounts is authorized or 

required by law to the extent such amounts 

are withheld are not greater than would be 

authorized if such member claimed all 

dependents to which he was entitled. 
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 USFSPA was amended on November 5, 1990. The amendment 

removed subsection C from the definition of "disposable retired 

or retainer pay." The effect was to allow courts to divide 

military pensions before taxes were withheld and award a 

percentage of this net amount to spouses. However, the amendment 

was not retroactive, applying only to divorces effective 90 days 

after the amendment. 10 U.S.C. § 1062(a) (1990). 

 The trial court looked to the definition in effect at the 

time the divorce was decreed. It concluded that the trial court 

at that time could not have had jurisdiction to award more than 

what was encompassed by the statute. Thus, in order to interpret 

the agreement in accord with the decreeing court's jurisdiction, 

the trial court found that wife's 39% share came from the net, 

not the gross, amount. It held that the 1990 amendment was 

irrelevant to the case because it was not retroactive. 

 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. See

Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986). 

 An appellate court is equally able to construe the meaning of 

the provisions of an unambiguous contract. See Wilson v. 

Holyfield, 227 Va. 184, 188, 313 S.E.2d 396, 398 (1984). The 

rules of construction that apply to contracts also apply to 

settlement agreements. Tiffany v. Tiffany, 1 Va. App. 11, 15, 

332 S.E.2d 796, 799 (1985). 
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 We agree with the trial court's ruling that USFSPA did not 

authorize the decreeing court in 1988 to award more than was 

defined by the federal law. If the decreeing court had acted in 

conflict with the definition of USFSPA, it would have done so 

without jurisdiction. A decree rendered by a court which lacked 

jurisdiction is void ab initio. Rook v. Rook, 233 Va. 92, 95, 

353 S.E.2d 756, 758 (1987). We affirm that portion of the trial 

court's decision. 

 There is a separate issue, however, which the trial court 

apparently failed to address. Wife has argued that the amendment 

to USFSPA was a change contemplated by the parties when they 

created the agreement. Thus, even though the statute does not 

make itself retroactive, the parties may have done so by 

operation of contract. "A quid pro quo of entering into a 

comprehensive agreement is the 'possibility that the law may 

change in one's favor.'" Bragan v. Bragan, 4 Va. App. 516, 519, 

358 S.E.2d 757, 759 (1987) (citations omitted). The separation 

agreement does expressly tie wife's share to the definition of 

"disposable retired pay" from 10 U.S.C. § 1408. It is possible 

that by this express reference to the United States Code they 

intended to do by contract what Congress did not see fit to do by 

legislation, make any change in USFSPA applicable to computation 

of wife's property right. See Cook v. Cook, 18 Va. App. 726, 

730-31, 446 S.E.2d 894, 896 (1994) (holding that the parties 

could contract around the ten-year marriage requirement contained 
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in 10 U.S.C. § 1408(d)(2)). While we do not here express an 

opinion as to whether the parties did so intend, we remand the 

issue back to the trial court for determination. 
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Tax Treatment

 Wife's second ascription of error is that the trial court 

failed to assign husband the duty of paying the federal income 

taxes due on her share of his pension. She asserts that if the 

government has levied improper taxes, then it becomes the 

responsibility of husband to reimburse her both retroactively and 

prospectively. Because this position is without support in law 

or in the terms of the agreement, we reject it. 

 We look to the four corners of the agreement for any 

indication that the parties sought to address tax liability on 

their respective shares of husband's pension. See Blunt v. 

Lentz, 241 Va. 547, 551, 404 S.E.2d 62, 64 (1991) (citing Ross v. 

Craw, 231 Va. 206, 212, 343 S.E.2d 312, 316 (1986)). Upon a 

careful reading of the agreement, we find no support for wife's 

contention that the last lines of Paragraph 14 require husband to 

pay her taxes. Those lines read, "Should the United States Navy 

Finance Center or other appropriate United States Government 

agency fail to pay Wife hereunder, the Husband must pay wife 

direct on all his obligations under this paragraph." No organ of 

the federal government has failed to pay her the funds to which 

she claims she is entitled. Therefore the paragraph does not 

address the question at issue: whether one party must give back

some of the money in the form of taxes. 

 Nowhere in the agreement are the tax burdens of the parties 

mentioned, much less apportioned. We would, in theory, agree 
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with wife's position that the pension is a property division, not 

alimony and is, therefore, a tax-neutral event for which she 

should not owe income tax. However, it is not within the 

jurisdiction of this Court to order the IRS to cease collecting 

taxes. Nor do we "rewrite contracts to insert provisions that 

have been omitted by the parties." Jones v. Harrison, 250 Va. 

64, 68, 458 S.E.2d 766, 769 (1995) (citing Westbury Coal Min. 

Partnership v. J.S. & K. Coal Corp., 233 Va. 226, 229, 355 S.E.2d 

571, 572-73 (1987)). Wife's remedy for overpayment of federal 

income taxes lies not in an appeal to the state courts, but in a 

prompt challenge to the IRS in the appropriate federal forum. 

Attorney's Fees

 The separation agreement provides that if either party 

retains counsel for the purpose of "enforcing or preventing the 

breach of any provision hereof, then the prevailing party shall 

be entitled to be reimbursed by the losing party." The trial 

court, however, decided to leave each party responsible for its 

own attorney's fees. 

 "An award of attorneys fees is a matter submitted to the 

trial judge's sound discretion 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) (citing Ingram v. Ingram, 217 Va. 

27, 29, 225 S.E.2d 362, 364 (1976)). The record indicates that 

neither party has asserted frivolous arguments or false 

allegations. None of the litigation has been motivated by bad 
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faith or a desire to hinder or delay the other party. While 

suits involving separation and divorce are always emotional, 

hotly-contested affairs, we find no special circumstances which 

would lead us to conclude that the trial court's decision was not 

warranted. We, therefore, affirm his decision and refuse to 

award attorney's fees for the expenses of trial or appeal. 

Conclusion

 Because it appears that the trial court did not consider 

wife's contention that the parties had, through contract, tied 

the computation of wife's property interest to a future amendment 

to USFSPA, even where Congress had chosen not to make the change 

retroactive, we remand to the trial court with instructions to 

reopen the decree and examine that possibility. On the issues of 

tax liability and attorney's fees, we affirm. 

 Affirmed in part,

remanded in part.