COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Huff and Senior Judge Haley

ANTHONY S. ALLEN, III MEMORANDUM OPINION * v. Record No. 0527-13-1 PER CURIAM SEPTEMBER 17, 2013 LINDA L. ALLEN

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Mar tin, Jr., Judge (Soyoung Lee; Sae W. Lee; Le e & Meier, PLLC, on brief), for appellant. Appellant submitting on brief. (Jeffrey M. Summers, on brief), for appellee. Appellee submitting on brief.
Anthony S. Allen, III (husba nd) appeals an order clarifying Linda L. Allen’s (wife’s) interest in husband’s retirement. Husband argues that the trial court erred by (1) receiving parol evidence where the parties’ memo randum of agreement (the Agre ement) is a fu lly integrated document into their final decree; (2) modifying the terms of the Agreement where there is no ambiguity; and (3) ordering the entry of a Qualif ied Domestic Re lations Order (QDRO) when the trial court had no jurisdiction to do so because the final divorce did not pr ovide for the entry of a QDRO. We find no error, and affi rm the decision of the trial court. BACKGROUND On October 13, 1984, the parties married, and on March 2, 2005, the parties separated. With the assistance of a mediator, the partie s reached an agreement regarding equitable distribution, spousal support, cu stody, visitation, and child su pport. On January 23, 2006, the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - parties signed the Agreement, which included th e following provision: “Wife shall receive 40% of the General Motors retirement and 40% of the United States Marine Corps retirement with a cap at $2,500 for each pension. In the event Wife remarries, the USMC pension shall be
forfeited.” The parties divorced in 2006, and the Agreemen t was incorporated into the final decree of divorce. 1 Husband subsequently gave wife a check for $2,500 for her share of the General Motors retirement. Wife did not deposit the ch eck and, instead, filed a motion with the trial court seeking clarification of the re tirement provision of the Agreement. On July 18, 2012, the trial court heard evid ence and argument rega rding the parties’ Agreement. On February 20, 2013, the trial cour t entered an order clar ifying that wife was entitled to forty percent of husband’s monthly military retirement pay from the United States Marine Corps, with a cap of $2,500 per month, a nd forty percent of husband’s monthly pension from General Motors, with a cap of $2,500 per mont h. The trial court directed wife to submit a Qualified Domestic Relations Or der. This appeal followed. ANALYSIS Assignment of error 1 – Parol evidence Husband argues that the trial court erred by receiving parol evidence to interpret the terms of the Agreement. The Agreement between husband and wife is governed by the same rules of construction as are applicable to other contracts. Plunkett v. Plunkett, 271 Va. 162, 166, 624 S.E.2d 39, 41 (2006).

1 The record does not include a copy of th e final decree of divorce, but both parties acknowledge that the Agreement was incorpor ated into the final decree of divorce.- 3 - The parties differed in their in terpretations of the retirement provision in the Agreement. Wife argued that the language in the Agreemen t meant that she received forty percent of husband’s monthly retirement pay from General Mo tors and the military, with a cap on each of $2,500 per month, whereas husband argue d that wife received forty percent of his retirement, with a cap on each of a lump-sum payment of $2,500. “The question whether contract language is ambiguous is one of law, not fact. Thus, the trial court’s conclusion regardi ng ambiguity is accorded no defe rence on appeal.” Id. at 166-67, 624 S.E.2d at 41 (citing Tuomala v. Regent Univ., 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996)). “A contract is not ambiguous merely becau se the parties disagree as to the meaning of the terms used.” Id. at 167, 624 S.E.2d at 42. He re, however, the contract is ambiguous because an objectively reasonable readi ng of the language in the contr act is susceptible of being understood “in more than one way.” Pocahont as Mining LLC v. Jewell Ridge Coal Corp., 263 Va. 169, 173, 556 S.E.2d 769, 771 (2002) (citations omitted). “‘When the language of a contract is ambi guous, parol evidence is admissible, not to contradict or vary contract terms, but to establis h the real contract between the parties . . . [and] to determine the intention of the parties. ’” Stroud v. Stroud, 49 Va. App. 359, 367, 641 S.E.2d 142, 146 (2007) (quoting Tuomala, 252 Va. at 374, 477 S.E.2d at 505 (citations omitted) (emphasis added)). Therefore receiving paro l evidence was appropriate. Eure v. Norfolk Shipbuilding & Drydock Corp

. , 263 Va. 624, 632, 561 S.E.2d 663, 667-68 (2002). Assignment of error 2 – Modifyi ng the terms of the Agreement Husband argues that the trial court erre d by modifying the terms of the Agreement because it “essentially wrote in ‘per month’ into a contract negotiated and executed by the parties.”- 4 - On review, our task is to “construe the contr act made by the parties . . . [asking] what did the parties agree to as evidenced by . . . the words they have us ed.” Irwin v. Irwin, 47 Va. App. 287, 293, 623 S.E.2d 438, 441 (2005). In that role, the contract’s provisions “are to be harmonized when possible.” Virginian Ry. Co. v. Hood, 152 Va. 254, 258, 146 S.E. 284, 285 (1929). In the case at bar, the testimony offered by the parties suggests that the intent behind the Agreement was to address the monthly pension payments and subject them to a monthly cap. Wife testified that she and husba nd negotiated the terms of the retirement provision. At first, she requested fifty percent of his monthly retirement. She explained that ultimately, they agreed to her receiving forty percent of his monthly re tirement, with a cap of $2,500 per month. She testified that their intent was fo r her to receive a monthly amount. Wife further explained that if she remarried, she would lose the military retirement. As the trial court noted, if the parties intended for wife to receive a lump-sum payment, she would reach the cap on the Ge neral Motors retirement in two months and the cap on the military retirement in three months. If the C ourt accepted husband’s argument that the payments were lump-sum payments, the forfeiture clause , where wife would lose her interest in the military retirement if she remarried, would be a nu llity. The Agreement must be considered as a whole, and the two sentences need to be “harmoni zed so as to effectuate the intention of the parties.” Plunkett, 271 Va. at 168, 624 S.E.2d at 42. Moreover, the terms of the Agreement express wife’s share as a forty percent interest in the pensions which are paid periodically, not paid in a lump sum. Interpreting the terms of the Agreement to allow husband to make a one-tim e lump-sum payment of $2,500 and discharge the ongoing obligation of forty percent of the monthly pension payments would create an internal- 5 - inconsistency. Interpreting the inte nt of the parties as expressed by the words they used in their Agreement does not result in a modification of the Agreement, as husband suggests. Assignment of error 3 – Ju risdiction to enter a QDRO Husband argues that the trial court did not have jurisdiction to order the entry of a QDRO when such order was not part of the final decree of divorce. Husband, however, failed to include a copy of the final decree in the record. Unde r the circumstances, we believe that the final decree should have been included; however, si nce the third assignment of error raises the question of jurisdiction to act, we believe that we can reach the issue without the final decree being included in the record because Code § 20-107.3(K)(4) provides “continuing authority and jurisdiction” to “modify any or der entered” that is intended to “affect . . . any pension.” “Such modification, however, must be ‘consiste nt with the substantive provisions of the original decree’ and not ‘simply to adjust its terms in light of the parties’ changed circumstances.’” Williams v. Williams , 32 Va. App. 72, 75, 526 S.E.2d 301, 303 (2000) (quoting Caudle v. Caudle, 18 Va. App. 795, 798, 447 S.E.2d 247, 249 (1994)). Here, in light of its ruling re garding the interpreta tion of the retirement provision, the trial court ordered wife to submit a QDRO for entry on ce General Motors approved it. Pursuant to Code § 20-107.3(K)(4), the trial court had the powe r and authority to modify the final decree, and allow for entry of a QDRO, consistent with the terms of the Agreement. CONCLUSION For the foregoing reasons, the tr ial court’s ruling is affirmed. Affirmed.