COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Cole man and Lemons ∗ Argued at Richmond, Virginia

SHARON LUANNE WALKER MEMORANDUM OPINION ∗∗ BY v. Record No. 1872-99-2 JUDGE SAM W. COLEMAN III JULY 11, 2000 CHARLES R. PFEIFFER

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Theodore J. Markow, Judge Lori A. Rinaldi (Bru ce E. Arke ma; Cantor, Arkema & Edmonds, P.C., on briefs), for appellant. S. Keith Barker (S. Keith Barker , P.C., on brief), for appellee.

∗ Justice Lemons participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia.

∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. This appeal involves the construction and enforcement of a covenant in the parties' Separation and Property Settlement Agreement dealing with their jointly-owned time share. The covenant concerned how the parties would pay and be responsible for the mortgage on the time share and how they would ultimately liquidate the property and distribute the assets. The pertinent provision of the Agreement provided as follows:- 2 - The parties agree that the Voyager Beach Club time share financed by loan account no. 2500202-0070 will be listed and sold by them for $9,000.00, and any net proceeds or shortfall will be income or funded by wife solely, and she agrees to save and hold harmless husband for any liability on any loan or advance of monies for the purchase or financing of the payment of the time share. Husband will make the monthly payments on the time share and any annual assessments, from the date of this agreement; the parties agree that while the time share is being marketed it shall be rented by the Voyager Beach Club management and the proceeds shall be applied by them toward the monthly payments which accrue after this agreement or shall be the property of husband in an amount not to exceed the monthly payments on the time share he has paid, and the balance of any excess beyond what husband has so paid, if any, shall be the property of the wife. The trial court construed the covenant to require that Sharon Luanne Walker , the former wife, re imburse Ch arles R. Pfeiffer, her form er husband, $4,872.58 fo r mortgage payments he made on the time shar e plus interest at th e statutory rate from January 2, 1996, plus costs. The co urt further orde red that the parties list the time share for sale for $9,000, "or for such other amount as they may agree." The co urt denied Pfeiffer's request for reimbursement of the paym ent for the annual assessments on the time share and denied bothparties' requests for attorney's fees. On appeal, Walker argues that the tria l court erred in: (1) determining th at it had juri sdiction; (2) or dering her to- 3 - reimburse Pfeiff er $4,872.58 fo r mortgage payments he made; (3) ordering her to pa y interest on the sum from Ja nuary 2, 1996, and costs; and (4) orde ring the parties to se ll the time share for $9,000 or "for such other amount as they may agree." Pfeiffer cross-appeals, arguing that the court erred by failing to order Walker to reimbu rse him for the an nual assessment s paid on the time share and by fail ing to order Walker to pay attorney's fees. We find that the tr ial court retain ed jurisdiction and that the "save and hold harmless" clause is unambiguou s and requires Walker to reimbu rse Pfeiffer for mortgage payments made on the time share. We furt her find that the "sav e and hold harmless" clause does not requ ire Walker to reimburse Pfei ffer for the annual assessments he made. We also findthat the award of prejudgment in terest and costs and the de nial of atto rney's fees was not an abuse of discretion. Accordin gly, we affirm the foregoing ruli ngs of the trial court co nstruing the separation agreement. However, we find that th e trial cour t erred by construing the covenant to require that the parties list the time share for sale "for su ch other amount as th ey may agree," and we reverse and vacate that portion of the order. I. BACKGROUND The parties were divorced by decree dated Oc tober 17, 1990, that affirmed, ratifi ed, and incorp orated the Separation and- 4 - Property Settlement Agreement whic h included the foregoing covenant concerning the Voyager Beach Club time share. From 1990 through 1999, the time share was never li sted for sale. In 1999, Pf eiffer filed a motion to hold Walker in contempt of court for failure to comply with th e provision in the separation agreement to "save and hold harmle ss [Pfeiffer] for any liability on any loan or advance of monies for the purc hase or financing of the paymen t of the time share" and the prov ision that purportedly re quired her to market and sell the time share. Walker responded, asse rting that the court lacked jurisdiction because the divorc e decree was final and any further co nstruction or enforcement of the Separation Agreement wa s not a part of the divorce action. After a hearing, the trial judg e found that the court retained jurisdictionto enforce the or der by a contempt proceeding, wh ich required the court to construe the separation agreement. The court ruled, however, th at Walker was not in contempt of th e court's order. The trial ju dge found that although the terms of the agreement re quired that th e time share be listed and sold, Wa lker did not bear sole responsibility for the default in having the property sold. Th e court furt her held that the provision in the separation agreemen t was unambi guous and obligated Walk er to reimburse Pf eiffer for the mo rtgage payments he had made on the time share after the divorce decree was- 5 - entered. Walk er argued that th e covenant only re quired her to pay or be responsibl e for any outstand ing mortgage paym ents or balance owing when the time sh are was sold, wh ich was when she would be entitled to "the balanc e of any excess beyondwhat husband has so paid." The tr ial judge found that, under the terms of the agreement, Pfeiffer was not entitled to reimburs ement of the annual fees paid by him for the time shar e. The tr ial judge ordered that the partie s list the time share for sale for $9,000, or "for such other am ount as they may agre e which is reasonably calculated to pr oduce a sale." The trial cour t denied both parties' requests fo r attorney's fees. II. ANALYSIS A. Jurisdiction Walker asserts that although the court retains juri sdiction to enforce its de crees, the court lacked ju risdiction to interpret and amend the sepa ration agreement. Walker argues that Rule 1:1 bars the trial court fr om amending or modi fying the se paration agreement becaus e more than twenty -one days have elapsed after the final divorce decree was entered. It is well settled that court orders beco me final twenty-one days after entry. See Rule 1:1. However, a trial co urt retains jurisdiction to construe and enforce a fi nal divorce de cree that has incorporated a property settlement an d separation agreement. See Gloth v. Gloth , 154 Va. 511, 548-51, 153 S.E. 879, 891-92- 6 - (1930) (stating that a trial court ha s jurisdiction in a divorce suit to enforce the terms of a settleme nt agreement when it incorporates them in its decree); see also McLoughlin v. McLoughlin , 211 Va. 365, 368, 177 S.E.2d 781, 78 3 (1970) (stating that prior to the enac tment of Code § 20-109 .1, the inco rporation of a settlement agreem ent "meant the court co uld use its contempt power to enforce the agreement"); Casilear v. Casilear , 168 Va. 46, 55, 190 S.E. 314, 316-17 (1937) (stating that a trial court retains jurisd iction after a final decree of divorce to enforce agreements between th e parties). The Supr eme Court st ated in McLoughlin , 211 Va. at 368 n.1, 177 S. E.2d at 783 n.1, that a divorce court may incorporate a prop erty settlement agreement in a final divorce decr ee and may therea fter construe and enforce the decree through its co ntempt power and the enactment of Code § 20-109.1 merely faci litated the exis ting power of a court to enforce an incorp orated agreement. Accordingly, we find that the trial court had ju risdiction to en force the separati on agreement. B. Separation Agreement 1. Reimburs ement for Mort gage Payments We next consider whether the tria l court erred by requiring Walker to reimburs e Pfeiffer for the mortgage payments he had made on the time share. Walker argues that th e provision that she "agrees to save and hold harmless husband for any liability on any loan or advance of monies for the purchase or financing of- 7 - the payment of the time share" does not require that she reimburse Pfeiffer for the mortgage payments he had made on the time share. Rather, she contends that the provision requires only that she hold Pfeiffer harmless for any liability remaining on the loan when the time share is sold. We disagree. "Property settle ment agreements are cont racts; therefore, we must apply the same rules of interpretation applicable to contracts ge nerally." Tiffany v. Tiffany , 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (198 5). "Where the agre ement is plain and unambiguous in its term s, the rights of th e parties ar e to be determined from the terms of the agreemen t and the co urt may not impose an obli gation not found in th e agreement itself." Jones v. Jones , 19 Va. App. 265, 268-69, 450 S.E.2d762, 764 (1994) (citation omit ted). "A contra ct term is not ambiguous merely because the part ies disagree as to the term's meaning." Bergman v. Bergman , 25 Va. App. 204, 211, 48 7 S.E.2d 264, 267 (1997). "The question of whethe r a writing is ambiguou s is not one of fact but of law." Langman v. Alumni Ass'n of the Un iv. of Virginia , 247 Va. 491, 498, 442 S.E.2d 669, 67 4 (1994) (citat ion omitted). "Thus, we are no t bound by the trial cour t's conclusion s on this issue, and we are pe rmitted the same opportunity as the trial court to consider the co ntract provisions." Tuomala v. Regent University , 252 Va. 368, 37 4, 477 S.E.2d 50 1, 505 (1996) (citations omitted).- 8 - We hold that the ph rase, "and [Walker] agrees to save and hold harmless [Pfeiffe r] for any liability onany loan or advance of monies for the purcha se or financin g of the payment of the time share[,]" is not ambigu ous. Because no ambiguity in the terms of the agreement exis ts, "we are not at liberty to search for the meaning of the provisions beyond the pertinent instrument itself." Smith v. Smith , 3 Va. App. 510, 514, 351 S.E.2d 593, 596 (1986) (citations omitted). The language of the covenant requires that Walker will reimburse Pfeiffer for payments he made on the loan for the purchase or financing of the time share. Th e language expressly prov ides that Walker will "save and hold harmless" Pfeiffer for "any liab ility on any loan or advance of monies for the purchase or financing of the payment of the time share." The purpose of the provisio n is clear. The wi fe would receive the proceeds from th e sale of the time share; however, she would be required to reimburse Pfeiffer or "save and hold [him] harmless" for any mortgage paymen ts that he had made on the property. Nothing in the language of the "save and ho ld harmless" clause requires that Pfeiffer wait until the property is sold to recover or seek reimburs ement for the mort gage payments. Thus, the trial court did not err by construing the agreemen t to require Walker to reimburse Pfeiff er $4,872.58, the amount Pfeiffer had expended in mortgage payments, less the amount of re nt received.- 9 - 2. Interest and Costs Walker argues that the tria l court erred inassessing interest on the ju dgment amount from Januar y 2, 1996, an d erred in assessing court co sts. She conten ds the separationagreement does not provide for pa yment of interest or co sts and that January 2, 1996 is an arbitrary da te, which has no relati on to the events in this case. She argu es that in the abse nce of a contractual provision provid ing for interest , the court ca nnot assess interest. Code § 8.01-382 provides, in pertinent part, that: [i]n any action at law or suit in equity, the verdict of the jury, or if no jury the judgment or decree of the court, may provide for interest on any principal sum awarded, or any part thereof, and fix the period at which the interest shall commence. The judgment or decree entered shall provide for such interest until such principal sum be paid. If a judgment or decree be rendered which does not provide for interest, the judgment or decree awarded shall bear interest from its date of entry . . . . The award of prejudgmen t interest is a matt er committed to the sound discretionof the trier of fact. See Marks v. Sanzo , 231 Va. 350, 356, 345 S.E. 2d 263, 267 (1986) (s tating that "whether interest should have been awarded and, if so, from what date interest should run, were matters within th e sound disc retion of the chance llor"); see also Ragsdale v. Ragsdale , 30 Va. App. 283, 292, 516 S.E.2d 69 8, 702 (1999).- 10 - "The award of prejudgment interest is to compensate Plaintiff for the loss sustained by not receiving the amount to which he was entitled at the time he was entitled to receive it, and such award is considered necessary to place the [plaintiff] in the position he would have occupied if the party in default had fulfilled his obligated duty." Marks , 231 Va. at 356, 345 S. E.2d at 26 7 (quoting Employer-Teams ters Joint Counci l No. 84 v. Weat herall Concrete,

Inc. , 468 F. Supp. 1167 , 1171 (1979)). Here, we find no abuse of di scretion in th e trial court's award of prejudgment interest. As the tr ial court no ted, the separation agreement co ntemplated that the time share would be marketed and sold muchearlier, probably be fore the mortgage was retired. Howeve r, the mortgage payments were paid in full by Pfeiffer before the pr operty was sold. Acco rdingly, because the separation agreement pr ovided that Walker wo uld reimburs e Pfeiffer for the mortgage paymen ts and Pfeiffer has sa tisfied the debt in full, the award of interest was not an ab use of discretion since it compensated Pf eiffer for the debt from the date incurred. Moreover, the tr ial court did no t abuse its di scretion by arbitrarily fi xing the date from which the interest should run from January 2, 1996, a date after which Pf eiffer had paid the entire loan. A court of equity has "discretion . . . over the subject of costs." Code § 17.1-6 00. "[I]n the exercise of this discretion- 11 - the [court] should award costs in favor of the party or parties 'substantially prevailing.'" McLean v. Hill , 185 Va. 346, 351, 38 S.E.2d 583, 586 (194 6) (interpretin g former Code § 14.1-177) (citations omitted). Here, although not find ing that Walker was solely responsible fo r the default, the tr ial court fo und that Pfeiffer, who inst ituted the show cause pr oceeding, wa s entitled to reimbursement of the funds expe nded to pay the mortgage payments. See Smith v. Woodla wn Constr. Co. , 235 Va. 424, 431, 368 S.E.2d 699, 703 (1988) (holding it to be an abuse of discretion if co sts are not awar ded to the part y substantially prevailing below). Ac cordingly, we find that the award of costs to Pfeiffer, the party substantially prevaili ng below, was not an abuse of discretion. 3. Sale of Time Share Last, Walker argues that the trial cour t erred in ordering the parties to list the time share for sale at $9,000 or "for such other amount as they may agree wh ich is reasonably calculated to produce a sale." She contends that the court's order is a modification of the terms of the separa tion agreement, which unequivocally provided that th e parties would li st and sell the property only if it so ld for at le ast $9,000. We find that the ph rase "for such other amount as they may agree which is reasonab ly calculated to prod uce a sale" contained in the court's order is a modification of the separation- 12 - agreement. Alth ough the language of th e agreement co ntemplates that the time share may be sold for less than$9,000 by providing that any shortfall from the sale of the pr operty in which the proceeds do not produce an amount sufficient to pay the mortgage balance be funded by Walker, the tria l court erred inordering the parties to list the pr operty for sale for less than $9,000. But cf. Stanley's Cafe teria, Inc. v. Abramson , 226 Va. 68, 72, 306 S.E.2d 870, 873 (1983) (stating that "[ c]ontracting parties may . . . modify the terms of thei r contract by express mutual agreement"). Therefore, even th ough the shortfal l provision and the parties' correspond ence envision that th e property may sell for less than the $9 ,000 listing price, unless the parties mutually agree to modify the te rms of the separa tion agreement which provides that the property is to be listed for $9,000, they cannot be othe rwise compelled to do so. See Stanley's Cafeteria , 226 Va. at 73, 306 S.E.2dat 873. Ac cordingly, we find that the trial court erre d by construing the ag reement to compel the parties to sell the ti me share for less than$9,000. Thus, we reverse and vacate that portion of the or der that required the parties to list and se ll the property "for such other amount as they may agree which is reasonably calculated to produce a sale." 4. Reimburs ement For Paym ent of Annual Assessments In his cross-appeal , Pfeiffer argues th at the trial court erred in finding that he was not enti tled to reimbu rsement for the- 13 - annual fees paid on th e time share. He ar gues that the annual

assessments we re part of the "payment of the time share" and because the "save and hold harmless" clause required that he be held harmless for the payments, he was entitl ed to reimbursement of these expenses. We find that the "save and hold harmle ss" clause does not require Walker to reimburse Pfeiff er for the annual assessments paid on the time shar e. The term "payment s" is unambiguous in this case and, accord ing to its plain meanin g, the term applies only to the mort gage payments. "When th e terms of a disputed provision are clea r and definite, it is axiomatic th at they are to be applied accord ing to their ordi nary meaning." Smith , 3 Va. App. at 514, 351 S.E.2dat 595-96 (citation omitted). In common usage, "payment" is "s omething that is give n to discharge a debt or obligation." Webster's Third New International Dictionary 1659 (1981). The annual as sessments includ e the costs for maintenance, upkeep and cleaning, ta xes and insuranc e, and replacem ent costs. Thus, because the "save and hold harmless" clause only requires repayment of the advanc e of monies for the pu rchase or financing of the time share, which do es not encompas s the annual assessments, the "save and hold harmless" clau se is not applicable to annual asse ssments.- 14 - 5. Attorney's Fees Pfeiffer argues that the tr ial court erred in denying his request for attorn ey's fees. Pfeiffer asserts that Walker's unwillingness to market and sell the ti me share was willful and unjustified. A trial court's denial of attorn ey's fees is reviewed only for abuse of discretion. See Head v. Head , 24 Va. App. 166, 181, 480 S.E.2d 780, 788 (1997). Here, the tr ial court fo und that Walker was not solely responsibl e for the default and failure to market and sell the ti me share. The tria l court note d "[t]he problem is that these people refu se to cooperate to accomplish a task which is mutual ly beneficial." We find no abuse of discretion in th e trial court's denial of atto rney's fees. Additionally, we deny Pfeiffer's reques t for attorney 's fees on appeal. III. CONCLUSION In summary, we find the trial court retained ju risdiction to construe and enforce th e separation agreemen t that was ratified and incorporated in its final divorce decree; the separation agreement was unambiguous and ob ligated Walker to reimburse Pfeiffer for the mortgage payments he made on the time share after the divorce decree was entered; and Pfeiff er was not en titled to reimbursement for the annual assessment fees paid by him for the time share. Furt her, we find th at the trial cour t did not err by- 15 - denying Pfeiffer 's request for atto rney's fees or ordering Walker to pay interest on the judgment and to pay costs. Accordingly, we affirm the trial cour t's order with respec t to those issues. However, we find th at the trial court er red by ordering the parties to list th e time share for sale "for such other amount as they may agree which is reasonably calculatedto produce a sale" and, therefore, we re verse and vacate that portion of the trial

court's or der. Affirmed, in part; reversed and vacated, in part.