COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Hale y and Senior Judge Bumgardner Argued at Alexandria, Virginia

DOROTHY D. TOBIN MEMORANDUM OPINION * BY v. Record No. 1137-05-4 J UDGE JAMES W. HALEY, JR. APRIL 18, 2006 RICHARD J. TOBIN

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Leslie M. Alden, Judge Joyce M. Henry-Schargorods ki (Shannon L. Kroeger; Schargorodski & Associ ates, PLC, on briefs), for appellant. Edward V. O’Connor, Jr., for appellee.
In this cause, Dorothy D. Tobin (wife) mainta ins the trial court (1) failed to address two procedural motions; (2) erred on January 28, 2005, in concluding that an issue was mature for decision without an evidentiary hearing; (3) erre d in determining that la nguage in a qualified domestic relations order, incorporating a prope rty settlement agreement, was not ambiguous; and (4) erred in interpreting that languag e. We find no error and affirm.
I.
Facts Wife and Richard J. Tobin (husband) were divorced by final decree entered December 19, 2003. The parties had separated on April 6, 2002. The decree incorporated a property settlement agreement (the Agreement), which contained the following paragraph: 10. The parties’ retirement asse ts, except as otherwise set forth herein, shall be divided in principal as follows:

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - (a) Fifty percent of the marita l share of all TIAA and CREF accounts shall be tran sferred to the Wife by qualified domestic relations order, or other appropria te tax-free transfer instrument. The marital share shall reflect contributions made prior to March 1, 2002, as adjusted by passive gains or losses after the date of separation until the date of rollover/transfer. (Emphasis added). On March 12, 2004, wife’s counsel prepared, husband’s counsel endorsed as “seen,” and the court entered a qualified domestic relations order (QDRO) which incorporated the language from paragraph 10(a) of the Agreement. A dispute arose as to whether wife ’s agreed share was 50% of husband’s contributions to the retirement plan, or 50% of the contributions, plus the growth of those contributions, that is, 50% of the value of the retirement plan assets upon the date of separation. The plan administrator, at the urgings of the respective parties, adopted both interpretations at different times. Accordingly, husband filed a motion for en try of a decree “setting forth the proper division of the assets” referred to in paragraph 10(a). Wife then filed a motion to dismiss husband’s motion for failure to comply with Rule 1:4(d) and lack of subj ect matter jurisdiction. Wife’s motion was set for a hearing on January 28, 2005. At that hearing, counsel for the parties argued their respective positions as to the appropriate interpretation of pa ragraph 10(a) and offered case la w in support of the same. The following exchanges occurred du ring the January 28, 2005 hearing: THE COURT: So is the claim that the agreement is ambiguous? . . . [Husband’s counsel]: No. Each side is saying th at there’s no ambiguity, and we’re saying that th e [50% of contributions] is the correct one. They’re saying that [ 50% of value] is the correct one.
* * * * * * *- 3 - THE COURT: So, you contend that it’s simply a legal argument about what the language means. [Husband’s counsel]: Correct. . . .
* * * * * * * [Wife’s counsel]: [H]e wants you to interpret it so that it means that she only gets the contributions . . . but that flies in the face of the definition of “marital share.” And if he’s not going to offer any evidence at trial, Your Honor ha s everything in front of you that you need to know today. You understand what it means. . . .
* * * * * * * [Wife’s Counsel]: That’s all I have, Your Honor. THE COURT: All right. I’ll take the matter under advisement. . . .
* * * * * * * THE COURT: I do agree that ther e’s no need for an evidentiary hearing. This is strict ly a question of law. Wife made no objection to the court’s stat ement that it would take the matter under advisement for decision nor to th e court’s statement that the deci sion was a matter of law without the need for an ev identiary hearing. By a letter opinion dated February 2, 2005, the court noted that even though “the parties agreed that the disputed language is not ambi guous,” it independently f ound that the language was not ambiguous. The court concluded that husband’s interpre tation of the language was the correct one and wrote: [T]he clear wording of the provision evinces the parties’ intent to distinguish between the contributio ns made to the account, and the passive increase/decrease associat ed with them, measured from time to time. Indeed . . . the word “contribute” means “to give jointly with others to a common fund.” This language denotes the parties’ recognition that “contributio ns” form a separate part of the account. Surely, had the parties intended to divide the entire- 4 - balance of the account, or the valu e of the account, as it existed prior to March 1, 2002, they could have said so. . . . Paragraph 10(a) provides that her entitlement to contributions ends on March 1, 2002 and the date of separation was April 6, 2002. This arrangem ent belies [wife’s] argument now that the parties meant to rely on the definition of “marital share” found in Va. Code Section 20-107.3 (G) (1) [because that code section defines marital share as ] “earned during the marriage and before the last separa tion of the parties.” (Citation omitted). A decree entered February 14, 2005 adopted the trial court’s letter opi nion of February 2, 2005 and directed husband’s counsel to prepar e an amended QDRO in accordance with the

same. Wife then filed a motion to reconsider, th e core of which was that Paragraph 10(a) was ambiguous , and, accordingly, an evidentiary heari ng was appropriate. Wife obtained new counsel, who filed essentia lly the same motion. Af ter hearing argument, th e trial court entered a decree May 4, 2005, denied both motions to recons ider, and made the February 14, 2005 order final. 1
II. Analysis
A. Wife’s initial contention is that the trial c ourt failed to address her motion to dismiss for lack of subject matter jurisdiction and her moti on to dismiss for an insufficient pleading. We first note that the trial court did rule on those motions, denyi ng both in its February 14, 2005 decree and in the final decree. Furtherm ore, we find no error in those decisions.

1 By decree entered March 7, 2005 the trial court had stayed the finality of its decree of February 14, 2005, pending resolution of the motions to reconsider.- 5 - Assuming that husband’s motion was, in fact, a pleading, it “clearly informs the opposite party of the true nature of the claim or defense” as required by Rule 1:4(d). Husband asked for the court to “set[] forth the proper division of the assets set forth in Paragraph 10(A) [sic] of the parties’ Outline of Settlement Terms . . . .” The outline referred to was already in the record of the case, and paragraph 10(a) refers only to the TIAA-CREF accounts. Gi ven the previous proceedings and events of this case, husband’s mo tion was quite sufficient to inform wife of his claim and, accordingly, complied with Rule 1:4(d). As to wife’s second motion, the trial cour t had subject matter ju risdiction under Code § 20-107.3(K)(4). That section gi ves jurisdiction for a trial court to “[m]odify any order . . . intended to affect or divide any pension, profit-sharing or deferred compensation plan or retirement benefits . . . to revise or conform its terms so as to effectuate the expressed intent of the order.” Wife contends that the trial court’s interpretation of the Agreement altered the contract between the parties, constituting an overreaching of Code § 20-107.3(K)(4). In support, wife cites Hastie v. Hastie , 29 Va. App. 776, 514 S.E.2d 800 (1999), and Fahey v. Fahey , 24 Va. App. 254, 481 S.E.2d 254 (1997), for the proposition that a trial court cannot enter a QDRO changing the terms of an agreemen t entered into by the parties. We concur in that proposition. Here, however, the trial court’s actions are clearly distinguishable fr om those overturned in Hastie and Fahey

. In Fahey , we held that a QDRO distri buting to the wife one-half of the account’s assets in kind substantially modified the final decree. 24 Va. App. at 257, 481 S.E.2d at 497. The decree only provided for her to receive one-half of the value of the account at the date of separation, while the assets in kind at the time of the QDRO ha d substantially increased in value. Thus, the- 6 - QDRO gave the wife far more than the final de cree and therefore changed the intent of the decree in violation of C ode § 20-107.3(K)(4). Id. Similarly, in Hastie the trial court’s final decree awar ded wife 40% of the marital portion of the pension, then defined the exact dollar am ount that constituted and provided an exact dollar amount for payment until paid in full. 29 Va. App. at 781, 514 S.E.2d at 803. A later QDRO ordered husband to pay 40% of the marital share of each monthly installment indefinitely, and we held that order to criti cally alter the terms of the c ontract and be beyond the court’s jurisdiction. Id. at 782-83, 514 S.E.2d at 804. In the case at bar, however , the trial court was asked only to interpret and clarify the meaning of the language in its fina l order, not to change the langua ge of the agreement that order had incorporated. So long as a trial court’s new QDRO faithfully interprets and applies its own previous order, it is fully within the court’ s jurisdiction under Code § 20-107.3(K)(4). Because we concur with the trial court’s interpretation of the Agreement as incorporated into the divorce decree, the trial court did not exceed its jurisdiction.
B. For decisional purposes, we comb ine two assignments of error. In reading the exchanges between the court and the pa rties at the January 28, 2005 hearing, the only reasonable conclusion is that wife agreed that paragraph 10(a) was not ambiguous, that the court should in terpret it, and that, accordingly, an evidentiary hearing was not just unnecessary, but would vi olate the parol evidence rule. In Berry v. Kilinger , 225 Va. 201, 206, 300 S.E.2d 792, 795 (1983), the Supreme Court of Virginia was concerned with whether the tria l court had correctly inte rpreted language in a contract. The Court noted that at trial Berry ha d first argued that the re levant language was not ambiguous. When the trial court pointed out th at accordingly extrinsic evidence was barred by- 7 - the parol evidence rule, “[c]ounsel stated his agreement with th e definition, promptly changed his position, and asserted that [the] paragraph . . . was ambiguous.” Id. The Supreme Court concluded that appellants, “havi ng contended . . . in their initia l arguments at trial that the language in question was unambiguous, will not be allowed to take a contrary position thereafter.” Id. at 207, 300 S.E.2d at 795. A litigant cannot assume inconsistent and contradictory positions during the course of a single litigation. Rohanna v. Vazzana , 196 Va. 549, 553-54, 84 S.E.2d 440, 442 (1954); Bd. of Supervisors v. Spilman , 113 Va. 391, 394, 74 S.E. 151, 153 (1912). Likewise, a party may not “change his position to the prejudic e of his adversaries in contradi ction of [a] stipulation freely entered into.” McLaughlin v. Gholson , 210 Va. 498, 501, 171 S.E.2d 816, 818 (1970); see also Burch v. Grace St. Bldg. Corp. , 168 Va. 329, 340, 191 S.E. 672, 677 (1937) (“a litigant is estopped from taking a position which is inconsistent with one previously assumed”). Here, wife clearly stipulated by agreement that the disputed language was not ambiguous and that its interpretation was a question of la w mature for decision without an evidentiary hearing. The trial court’s statement in its Februa ry 2, 2005 opinion letter that “the parties agreed that the disputed language is not ambiguous” refl ects that conclusion. That recital constitutes a finding of fact substantially supported by the evidence. Wife may not adopt a position inconsistent to that earlier taken and may not change her position in contradiction to a stipul ation. For these reasons, we find that the trial co urt did not err in concluding that the issue was mature for d ecision without an evidenti ary hearing and did not err in concluding that the di sputed language was not am biguous. Accordingly, wife’s assignments of error (2) a nd (3) are without merit.- 8 - C. “[P]roperty settlement agreements are cont racts and are subject to the same rules of construction that apply to the interpretation of contracts generally.” Southerland v. Estate of Southerland , 249 Va. 584, 588, 457 S.E.2d 375, 378 (1995); see also Plunkett v. Plunkett , 271 Va. 162, 166, 624 S.E.2d 39, 41 (2005); Boedeker v. Larson , 44 Va. App. 508, 518, 605 S.E.2d 764, 769 (2004); Shenk v. Shenk , 39 Va. App. 161, 170, 571 S.E.2d 896, 901 (2002). “We are not bound by the trial court’s construction of contract terms, but rather, ‘we have an equal opportunity to consider the words within the four corner s of the disputed provision.’” T.M. Delmarva Power, L.L.C. v. NCP of Va., L.L.C. , 263 Va. 116, 119, 557 S.E.2d 199, 200 (2002) (quoting Wilson v. Holyfield , 227 Va. 184, 188, 313 S.E.2d 396, 398 (1984)). Furthermore, “whether contract language is am biguous is [a question] of law, not fact.” Plunkett , 271 Va. at 166-67, 624 S.E.2d at 41. Thus, we review the trial cour t’s decisions on this issue de novo

. In that consideration “[t]he guiding light . . . is the intention of the parties as expressed by them in the words they have used, and courts ar e bound to say that the parties intended what the written instrument plainly declares.” Golding v. Floyd , 261 Va. 190, 192, 539 S.E.2d 735, 737 (2001) (quoting Magann Corp. v. Elec. Works , 203 Va. 259, 264, 123 S.E.2d 377, 381 (1962)) (omission in original). Finally, especially relevant here is another principle of cont ract construction. In Winn v. Aleda Constr. Co. , 227 Va. 304, 307, 315 S.E.2d 193, 195 (1984) (citation omitted), the Supreme Court of Virginia held that: “[n]o word or clau se will be treated as meaningless if a reasonable meaning can be given to it, and there is a pres umption that the partie s have not used words aimlessly.” See also Ross v. Caw , 231 Va. 206, 214, 343 S.E.2d 312, 316-17 (1986) (noting different uses of the word “may” in a contract were necessary to give full e ffect to all parts of a- 9 - contract). “Parties are not presumed to have included a provision of no effect.” Hughes & Co. v. Robinson Corp. , 211 Va. 4, 7, 175 S.E.2d 413, 415 (1970). Initially, as the trial court noted in its letter opinion of Fe bruary 2, 2005, if the parties had intended to evenly divide the “value” of the account as of March 1, 2002, all they had to do was say so. Similarly, if they wanted to divide the “marital share” as C ode § 20-107.3(G)(1) defines the term, they could have tracked the statutory language or refe rred to the Code’s definition. Instead, the parties chose to define a “marita l share” and then said “[t]he marital share shall reflect contributions made prior to Marc h 1, 2002, as adjusted by passive gains or losses after the date of separation until the date of ro llover/transfer.” In so doing, the contract demonstrates a specific intent of the parties to de part from the statutory definition. The statutory marital share includes more than just contributions and relates to the date of separation, April 6, 2002 in this case, not the date agreed to by the pa rties. Moreover, to in terpret the Agreement as wife argues, the court would render the word “contributions” meani ngless and as having no effect as precluded by Winn and Hughes & Co. We also note that wife does not want to stri ke the phrase “as adjust ed by passive gains or losses after the date of separation until the date of rollover/transfer” ev en though such gains or losses are not part of the statutory “marital shar e.” She takes this position because it increases her share of the pension. Furthermore, this language would be unnecessary if the parties had intended the marital share to in clude passive gains or losses before the date of separation, that is, as of March 1, 2002. We find the Agreement unambiguous. The c ontested language includes a definition of the “marital share” to which the wife is entitl ed -- the contributions made by husband before March 1, 2002 and the passive gains or losses fr om that date until th e rollover/transfer. Accordingly, the trial cour t correctly interpreted th e language at issue here.- 10 - III. Conclusion For these reasons we hold the trial court prope rly denied wife’s procedural motions and correctly interpreted the langua ge contained in paragraph 10( a) of the Agreement. Affirmed.