COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Willis 

Argued at Salem, Virginia 

STUART M. BERGMAN 

v. Record No. 1876-96-3 

JANICE L. BERGMAN 

 OPINION BY 

 JUDGE SAM W. COLEMAN III 

JANICE L. BERGMAN JULY 15, 1997 

v. Record No. 1948-96-3 

STUART M. BERGMAN 

 FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE 

Martin F. Clark, Jr., Judge 

 Philip G. Gardner (Gardner, Gardner, Barrow & 

Sharpe, P.C., on briefs), for Stuart M. 

Bergman. 

 H. Morgan Griffith for Janice L. Bergman. 

 The issue in these appeals is whether the trial court erred 

in interpreting the terms "reside" and "cease" when construing 

the spousal support provision of the parties' separation 

agreement. Both parties appeal the trial court ruling. We hold 

that the trial court erred in finding that the word "reside" was 

an ambiguous term requiring the admission of parol evidence. 

Further, we hold that the evidence failed to prove that the 

former wife violated the "reside" provision in the separation 

agreement. Finally, we hold that the trial court erred in 

finding that the word "cease" was ambiguous and interpreting that 

term in the agreement to mean "temporarily suspend." 
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Accordingly, we reverse the trial court's decision. 

FACTS

 In April 1989, Stuart and Janice Bergman entered into a 

property settlement agreement in which Mr. Bergman agreed to pay 

spousal support in an amount equal to twenty-five percent of his 

salary up to $160,000 and twenty percent of his salary, including 

bonuses, that exceeded $160,000. The paragraph of the agreement 

in controversy stated, "[s]pousal maintenance and support shall 

cease in the event Janice L. Bergman resides with a male person 

to whom she is not married excluding immediate relatives such as 

her father or a brother or male child." (Emphasis added). The 

trial court ratified, confirmed and approved the agreement and 

incorporated certain provisions, including the spousal support 

provision, into the final divorce decree. 

 In 1994, Mr. Bergman filed a petition to terminate spousal 

support based on the foregoing provision of the settlement 

agreement. He alleged that Janice Bergman was residing with a 

male to whom she was not married. 

 At the hearing on Mr. Bergman's petition, Mr. Bergman 

presented evidence that he had observed a man at his former 

wife's home on several occasions. Mr. Bergman then hired a 

private investigator, who began surveillance of Janice Bergman's 

home to determine whether the man was "residing" with her. The 

combined surveillance by Mr. Bergman and the investigator lasted 

several years. During that time, the man's vehicle and Janice 
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Bergman's vehicle were seen at the same location, either at her 

home or his home, late at night on numerous occasions. Mr. 

Bergman introduced into evidence detailed notes and a calendar 

chronicling the dates and times on which he and the investigator 

observed that the man "spent the night" with Janice Bergman. 

 Janice Bergman confirmed that the truck seen at her home by 

her former husband and the investigator was that of a male friend 

whom she dated. She testified that they had a dating 

relationship and acknowledged that they had spent nights together 

but only on intermittent weekends. When the man stayed 

overnight, he slept in her room. Janice Bergman testified that 

her friend did not keep his clothing or toiletries at her home 

and did not have a key to her house. Further, her male friend 

did not receive mail at her house, nor did they have a joint post 

office box. Janice Bergman further testified that she and the 

man never helped each other financially and that she did not use 

his truck and he did not use her car. Janice Bergman refuted 

several of the investigator's entries, stating that she and her 

friend were out of town together at a time when, according to the 

investigator's notes, the investigator had purportedly observed 

their cars moving between the two houses. 

 The man's brother and sister, who lived with him at their 

parents' home, testified that he had moved into a bedroom in the 

basement of their parents' home in July or August of 1993. His 

sister testified that he usually had dinner with the family and 
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rarely spent the night away from their home. The man's father 

testified that his son did not spend the night away from home 

often and that he did not pay rent or contribute to household 

expenses. 

 The man's employer testified that, due to the nature of his 

job in the maintenance department for Glass Dynamics, he was 

subject to being called to work at any time. However, the man 

never gave Janice Bergman's address or telephone number to his 

employer. Instead, he gave his home and his parents' home phone 

numbers and addresses. 

 The parties' son, Robert, lived at home with his mother 

until he went to college in 1994. He testified that, although 

his mother and the man had a dating relationship, the man kept no 

clothing or personal effects at his mother's home. The only item 

in the house that the son could recall that belonged to the man 

was a broken shop vacuum kept in the garage. While Robert was 

living at home, the man stayed at the house, at most, three or 

four nights per month and never two nights in a row. Robert also 

testified that the investigator's notes concerning the man's 

staying at the house during the weekend of December 4, 1993 were 

incorrect because he recalled being home alone studying. 

 The trial judge ruled that the term "reside" as used in the 

settlement agreement was ambiguous; therefore, the judge received 

parol evidence to determine the parties' intent when using the 

term, "reside." After receiving the evidence, the trial judge 
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ruled that the term "reside" as used in the agreement meant: 

 that either party would move into the home of 

the other a significant amount of clothing or 

personal property[,] . . . that the parties 

would spend more than four nights . . . 

together per calendar month under the same 

roof with each other[,] . . . that the 

parties would spend more than two consecutive 

nights together under the same roof, that 

would exclude vacations and out-of-town 

trips[, and] . . . that a party received mail 

or had a phone listing or made a significant 

economical or nonmonetary contribution to the 

home or the residence of the other . . . . 

The judge found that, based upon the evidence presented, the man 

was "residing" with Janice Bergman in violation of the settlement 

agreement provision. The trial judge then interpreted the term 

"shall cease" in the same provision to mean that spousal support 

would be suspended while Janice Bergman was "residing" with an 

unrelated male but would be reinstated once she was no longer 

"residing" with "a male person" other than her father, brother, 

or male child. 

ANALYSIS

 Property settlement agreements are contracts subject to the 

same rules of formation, validity, and interpretation as other 

contracts. Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 

595 (1986); Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 

796, 799 (1985). "Extrinsic evidence can be admitted to explain 

an ambiguity in a document. However, the ambiguity must be 

apparent on the face of the instrument." Cohan v. Thurston, 223 

Va. 523, 525, 292 S.E.2d 45, 46 (1982). A contract term is not 
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ambiguous merely because the parties disagree as to the term's 

meaning. Ross v. Craw, 231 Va. 206, 212-13, 343 S.E.2d 312, 316 

(1986); Smith, 3 Va. App. at 513-14, 351 S.E.2d at 595. Rather, 

the question of whether a writing is ambiguous is a matter of 

law, not of fact. Langman v. Alumni Ass'n of the Univ. of 

Virginia, 247 Va. 491, 498, 442 S.E.2d 669, 674 (1994); Wilson v. 

Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984). "Thus, 

we are not bound by the trial court's conclusions on this issue, 

and we are permitted the same opportunity as the trial court to 

consider the contract provisions." Tuomala v. Regent University, 

252 Va. 368, 374, 477 S.E.2d 501, 505 (1996). 

 "It is the function of the court to construe 

the contract made by the parties, not to make 

a contract for them. The question for the 

court is what did the parties agree to as 

evidenced by their contract. The guiding 

light in the construction of a contract is 

the intention of the parties as expressed by 

them in the words they have used, and courts 

are bound to say that the parties intended 

what the written instrument plainly 

declares." 

Wilson, 227 Va. at 187, 313 S.E.2d at 398 (quoting Meade v. 

Wallen, 226 Va. 465, 467, 311 S.E.2d 103, 104 (1984)). 

 "In construing the terms of a property settlement agreement, 

just as in construing the terms of any contract, we are not bound 

by the trial court's conclusions as to the construction of the 

disputed provisions." Smith, 3 Va. App. at 513, 351 S.E.2d at 

595 (citations omitted); Hedrick v. Hedrick, 3 Va. App. 452, 455, 

350 S.E.2d 526, 528 (1986). "[I]f all the evidence which is 
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necessary to construe a contract was presented to the trial court 

and is before the reviewing court, the meaning and effect of the 

contract is a question of law which can readily be ascertained by 

this court." Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 

342, 346 (1987). 

 We hold that the term "reside," as used by the parties in 

this contract, is not ambiguous. No other provisions in the 

contract render the term confusing or ambiguous. The contract 

does not evidence any intent that the word was used in a special 

way or was intended to have a meaning other than its ordinary 

meaning. Thus, in construing and enforcing the provision of the 

agreement we apply the plain meaning of the term, "resides with." 

Smith, 3 Va. App. at 514, 351 S.E.2d at 595-96 ("When the terms 

of a disputed provision are clear and definite, it is axiomatic 

that they are to be applied according to their ordinary meaning. 

. . ."). In common usage, to "reside" is "[to] settle oneself or 

a thing in a place, to be stationed, . . . to dwell permanently 

or continuously, [to] have a settled abode for a time, [to] have 

one's residence or domicile." Webster's Third New International 

Dictionary 1931 (1981).1 

 

 1Stuart Bergman argues that "reside" is capable of being 

interpreted in more than one way, rendering the term ambiguous. 

Although "reside" is not synonymous with "resident" or 

"residence," the definition of those terms supports our holding 

that "reside" is not an ambiguous term. To "reside" is to be a 

"resident" or have a "residence" as those terms have been 

interpreted by Virginia courts. Virginia cases interpreting the 

terms "residence" and "resident" have generally given the terms 

their plain meaning. See Long v. Ryan, 71 Va. (30 Gratt.) 718 

(1878) (conflict of laws case interpreting "residence" to mean a 
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 Thus, the factors that determine whether a person "resides" 

with another, as that term is used in the parties' agreement, 

include determining whether the persons are living together on a 

continuous or frequent basis with some degree of permanency, 

whether they have clothing and/or personal belongings in the same 

home or residence, whether they receive mail or frequent phone 

calls at each other's home, whether they contribute to the 

payment of bills or make significant nonmonetary contributions to 

the home, and whether they intend the home to be their residence. 

 Unlike the term "cohabit," the term "reside" does not encompass 

consideration of the personal relationship between the 

individuals. See Schweider v. Schweider, 243 Va. 245, 248, 415 

S.E.2d 135, 137 (1992); Frey v. Frey, 14 Va. App. 270, 273, 416 

S.E.2d 40, 42 (1992). Thus, no proof of an intimate relationship 

would be necessary to prove that Janice Bergman was "residing" 

with an unrelated male. Furthermore, the length of time that a 

(..continued) 

place "to abide, to sojourn, to dwell . . . permanently or for a 

length of time[,] . . . as contradistinguished from the mere 

temporary locality of existence"); Smith v. Smith's Ex'r, 122 Va. 

341, 94 S.E. 777 (1918) (same); Griffin v. Woolford, 100 Va. 473, 

41 S.E. 949 (1902) (same). Although the terms "resident" and 

"residence" have been interpreted to have the same meaning as 

"domicile" for purposes of the election laws and tax laws, see

Dotson v. Commonwealth, 192 Va. 565, 66 S.E.2d 490 (1951) 

(election laws); Talley v. Commonwealth, 127 Va. 516, 103 S.E. 

612 (1920) (tax laws), the contract in this case contains nothing 

to indicate an intent by the parties that the term "reside" be 

given any meaning other than its ordinary one. Compare USAA Cas. 

Ins. Co. v. Henley, 251 Va. 177, 181, 465 S.E.2d 791, 793 (1996) 

(giving special meaning to the term "resident of the household" 

as compared to "resident"); Allstate Ins. Co. v. Patterson, 231 

Va. 358, 361, 344 S.E.2d 890, 892 (1986) (same). 
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person lives at a particular location is but one factor that 

governs whether the person "resides" at a location. Accordingly, 

we look to the circumstances of each case to determine whether 

one person "resides with" another. 

 Under the facts of this case, the evidence failed to prove, 

as a matter of law, that Janice Bergman was residing with the man 

she was dating. He did not have clothing, toiletries, or 

personal belongings at Janice Bergman's home. In addition, he 

did not have a key or access to her home. No evidence proved 

that he spent time there while Janice Bergman was away, as a 

person who "resides" at the home would have done. See Pendleton 

v. Pendleton, 918 P.2d 159, 160 (Utah 1996). No evidence was 

presented that the man intended to "reside with" Janice Bergman. 

 In fact, the evidence indicated that he was no more than a 

frequent overnight visitor during the two year period that they 

dated. Thus, we hold that the trial court's finding that Janice 

Bergman was "residing with" the man is not supported by the 

record. 

 Turning to the trial court's ruling concerning the term 

"shall cease" in the parties' agreement, we hold that the trial 

court erred in finding that the term meant "temporarily suspend." 

 "'[C]ourts cannot read into contracts language which will add to 

or take away from the meaning of the words already contained 

therein.'" Henderlite v. Henderlite, 3 Va. App. 539, 541, 351 

S.E.2d 913, 914 (1986) (quoting Wilson v. Holyfield, 227 Va. 184, 
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187, 313 S.E.2d 396, 398 (1984)). "Where there is no ambiguity 

in the terms of a contract, we must construe it as written, . . . 

and we are not at liberty to search for the meaning of the 

provisions beyond the pertinent instrument itself." Smith, 3 Va. 

App. at 514, 351 S.E.2d at 595-96. 

 At the hearing, neither party contended that the term "shall 

cease" was ambiguous and no parol evidence was introduced as to 

what the parties intended when they used the term. The term 

"shall cease" is not ambiguous; its meaning is clear and certain. 

 The contract provides that spousal support "shall cease" in the 

event of death of either party, the remarriage of Janice Bergman, 

or in the event she should reside with a male person to whom she 

is not married other than relatives, such as a father, brother, 

or son. As the term is used, it is clear that the parties 

intended "shall cease" to mean "end permanently." 

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

decision and hold that Stuart Bergman failed to prove a change in 

condition under the terms of the parties' settlement agreement. 

Accordingly, we dismiss the case. 

Reversed and dismissed.