COURT OF APPEALS OF VIRGINIA

Present: Judges Alst on, O’Brien and AtLee Argued at Fredericksburg, Virginia

ROBERT L. AYERS MEMORANDUM OPINION * BY v. Record No. 0068-18-4 JUDGE RICHARD Y. ATLEE, JR. OCTOBER 2, 2018 LINDA T. AYERS

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Stephen C. Shannon, Judge Phillip B. Leiser (The Leiser La w Firm, on brief), for appellan t. Jenna M. Maresco (Curran Moher Weis, P.C., on brief), for appellee.

Robert Ayers (“husband”) appeal s the decision of the Circuit Co urt of Fairfax County regarding the division of assets f ollowing his divorce from Lin da Ayers (“wife”). 1 On appeal, husband argues that the circuit court erred by a llocating the c losing costs from the sale of the marital home in accordance with the equitable shares of the pro ceeds rather than treating them as a joint debt. For the reasons that follow, we disagree and aff irm the circuit court.

I. BACKGROUND “Upon review, we consider the e vidence in the light most favor able to the wife, the prevailing party.” G ray v. Gray, 228 Va. 696, 699, 324 S.E.2d 677, 679 (1985). Prior to marriage, the parties entered int o a premarital agreement. Amo ng other things, the premarital agreement addresses the propert y and debts of t he parties. Par agraph 10 states,

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 We recognize that “former husband” and “former wife” would be more accurate, but we use less cumbersome titles in this memorandum opinion for ease of reference.UNPUBLISHED- 2 - The parties also agree that the manner in which such property i s titled during the marriage, including its placement in accounts in sole or joint names, shall contro l such property’s classificati on as joint or separate, its owners hip, and its distribution in the e vent of divorce, dissolution of marriage , or separation. If Separate Property is used for the purchas e of a home that both parties l ive in, the new home will be Joint Property, which would be equally divided under this Agreement in the event of divorce. Additionally, the premarital agr eement provides that joint or m arital debts are to be divided equally between the parties. Once married, the parties decide d to sell husband’s separate p roperty to purchase a new marital home to be titled jointly. In order to avoid husband l osing his separate property interest as provided in the premarital ag reement, the parties entered in to a second agreement (the “marital agreement”). The purpose of the marital agreement was to allow the parties to jointly

title the home and “allow for a percentage of the new home to b e determined as separate property.” Where one party contr ibuted separate property in pa rtial purchase of a new marital home, the marital agreement sta tes that “the amount of any such payment will be a separate-property interest in the asset, which will be a percen tage of the asset’s value, equal to the percentage of the a sset’s original purchase price that the payment represents.” The parties purchased the m arital home for $1,189,000. Husban d contributed $272,351.75 of his separate property. After husband’s contribu tion and a credit from the sellers, the parties jointly obtained a mortgage for the remaining $915, 000. Upon their separation, the partie s sold the marital home and e ntered into a marital settlement agreement. In relevan t part, the marital settlement agreement provides, The parties have sold the ma rital home . . . . The net proceed s of sale were $263,741.06. . . . The partie s disagree as to how th ese proceeds should have been divided, however they do agree that they must be divided in accordance with their Premarital Agreement . . . and their Marital Agreement . . . . The partie s expressly leave unresolved the i ssue of how these sale proceeds- 3 - shall be divided for later resol ution or court determination if the parties cannot agre e on a resolution. Paragraph 8(A) also states that “ [t]he parties are not jointly obligated to pay any debts.” The parties sold the marital home for $1,130,000, and they pai d the remaining balance of the mortgage from the sale pro ceeds. At closing, the parties w ere responsible for $71,603.79 in closing costs. The proceeds afte r the mortgage ba lance and clo sing costs had been deducted were $263,741.06. The parties agree th at husband was entitled to 69.27% as his separate share and 15.365% as his portion of the mar ital share, for a total of 84.635%. Wife’s marital share was 15.365%. The parties disagreed as to how the closing costs sho uld be allocated. Husband argued the closing costs should be t reated as joint debts and e venly divided between the parties. The circuit court rejected hus band’s argument and determined t hat under the three agreements (collectively “the agreements”), the asset’s value, or the amount to be allocated between the parties, equals the a mount after all of the costs ( both mortgage and closing) are deducted from the sale price. As such, the asset’s value was $ 263,741.06. Husband’s total share was $223,217.24, and wife’s total share was $40,523.82. Husban d filed this appeal.

II. ANALYSIS 2 Marital agreements and property settlement agreements are cont racts; “therefore, we must apply the same rules of int erpretation applic able to contr acts generally.” Smith v. Smith, 15 Va. App. 371, 374, 423 S.E.2d 851, 853 (1992) (quoting Tiffa ny v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985)). “[W]e review de novo the pure ly legal issues of what the terms

2 Husband cites no case law or aut hority in the argument section of his brief. Pursuant to Rule 5A:20(e), briefs must cont ain principles of law, argument, and the authorities related to each assignment of error. B ut see Wilson v. Commonwealth, 54 V a. App. 631, 638-39, 681 S.E.2d 74, 78 (2009) (noting in cases of first impression that appellants are not required to “cite to cases where no precedent exists or to cite a set number of c ases or code sections”). Therefore, we will address husband’s arguments on the merits. However, we also note that under Wilson, parties should cite to “any infor mative or illustrative cases.” Id. at 638, 681 S.E.2d at 78.- 4 - of a contract are . . . .” Spectra-4, LLP v. Uniwest Commercia l Realty, Inc., 290 Va. 36, 43, 772 S.E.2d 290, 293 (2015).

A court must construe a contract according to the intent of th e parties “ as expressed by them in the words they have used. ” Flippo v. CSC Assocs. III, 262 Va. 48, 64, 547 S.E.2d 216, 226 (2001) (quoting Ames v. Am. Nat’l Bank, 163 Va. 1, 38, 176 S.E. 204, 216 (1934)). “[C]ontracts must be construe d as written.” Ross v. Craw, 231 Va. 206, 213, 343 S.E.2d 312, 316 (1986). “[C]ontract language w ill not be treated as meanin gless where it can be given a reasonable meaning. Parties are not presumed to have included a provision of no effect.” Id. at 214, 343 S.E.2d at 317 (internal ci tations omitted). “Courts c annot read into contracts language which will add to or take away fro m the meaning of words alread y contained therein.” Bergman v. Bergman, 25 Va. App. 204, 214, 487 S.E.2d 264, 269 (1997) (q uoting Henderlite v. Henderlite, 3 Va. App. 539, 541, 351 S.E.2d 913, 914 (1986)). Additionally, “the omission of a particular term from a contract is evidence that the parties in tended to exclude that term.” Pocahontas Mining LLC v. CNX Gas Co., 276 Va. 346, 353, 666 S.E .2d 527, 531 (2008). The parties’ agreements do not e xpressly set out how closing c osts should be allocated between the parties upon the sale of the marital asset. 3 Husband argues that the closing costs should be treated as a joint de bt and divided equally between t he parties. But husband is asking this Court to adopt an interpret ation inconsistent with the exp ress language of the agreements. The agreements do not define clos ing costs as a debt, nor do th ey provide a definition of debt. 4

3 The only reference to closing cos ts is in section 3 of the mar ital agreement. That provision only deals with using sep arate property to pay the cl osing costs in acquiring a jointly titled marital asset . It does not deal with closing costs on t he sale of the marital asset.

4 Paragraph 14 in the premarital ag reement contains the only exp lanation of debt. It states, “Debts include but are not limited to car loans, credit card debts, student loans, mortgages, etc.”- 5 - Husband simply assumes that closing costs are debts without cit ing any authority for the proposition. Paragraph 8(A) of the marital set tlement agreement, entered int o after the residence was sold, specifically provides, “Th e parties are not jointly oblig ated to pay any debts.” Moreover, the marital settlement agreement sets out $263,741.06 as the sa le proceeds and reserved the “issue of how these sale proceeds shall be divided.” It contai ns no reservation of the issue of allocating closing costs, which had already been paid. 5 Thus, the language used in the marital settlement agreement specificall y demonstrates, first, that the parties agreed tha t no joint debts existed, and second, the parties’ intent to treat the closing c osts as something other than a joint

debt.

Husband asks this Court to inter pret the agreements in a way th at renders paragraph 8(A) meaningless and to read in a de finition of debt that is not pre sent. Husband’s argument directly contradicts the express terms of the agreements, and he provide s the Court with no case law or other authority to interpret th e contract in accordance with hi s argument.

III. CONCLUSION

The circuit court’s interpretation of the “asset’s value” as r eferring to the proceeds from

the sale after all of the costs have been deducted is consisten t with the language in the agreements. Therefore, we cannot say the circuit court erred i n allocating the clo sing costs as it

did. The trial court is affirmed.

Affirmed.

5 Even were we to assume that the closing costs were a joint deb t, we fail to see how they were treated any differently than t he mortgage costs, which wer e a joint debt. Both mortgage and closing costs were deducted f rom the total sale price befor e the remaining proceeds were divided between the parties.