COURT OF APPEALS OF VIRGINIA

Present: Judges Humphr eys, Beales and Decker Argued by teleconference

BARBARA DEANNE SMITH MEMORANDUM OPINION * BY v. Record No. 1483-14-1 J UDGE MARLA GRAFF DECKER APRIL 7, 2015 ERIC WENDELL THOMPSON

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge Kellam T. Parks (T. Alexander Cl oud, Jr.; The Law Office of Kellam T. Parks, PLLC, on brief), for appellant. No brief or argument for appellee.

Barbara Deanne Smith (the wife ) appeals a decision of the circu it court that certain benefits

to which she was entitled pursuant to her written agreement with Eric Wendell Thompson (the husband) upon their separation and divorce terminated when she remarried. Th e wife contends that the agreement provided for payments that were expr essly “in lieu of” spousa l support. Accordingly, she argues that Code § 20-109(D), which states that spousal suppor t terminates upon the recipient’s remarriage absent an express provision to the contra ry, does not apply. We hold that the financial obligations at issue were spousal support for purpo ses of Code § 20-109(D) and terminated upon the wife’s remarriage. Therefore, we affirm the ci rcuit court’s ruling. We also decline the wife’s request for an award of attorney ’s fees and costs on appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - I. BACKGROUND The parties had a child together in 1991 a nd married in 1994. They separated in 2006. They signed a joint property settlement agr eement on May 1, 2008. Their child was seventeen years old at that time. The agreement was the pr oduct of the parties’ join t meeting with a lawyer, as well as input that they received from the husband’s stepsister, who wa s a paralegal, and the wife’s employer, who had a law degree but did not practice law. The agreement was structured as a series of twelve separately numbered paragraphs. The first section, titled “Generally,” included th e statement that the pa rties intended by “th[e] agreement[] to make a final and complete settle ment of all of [their] rights and obligations concerning child custody and divi sion of property.” This over view section did not mention spousal support. However, a subsequent sec tion, Paragraph IV, addressed child and spousal support. Paragraph V addressed the divi sion of marital property and debts. More specifically, the ag reement provided as follows regarding child and spousal support:

IV. WAIVER OF RIGHT TO SUPPOR T: In consideration of the other terms of this agreement, and whereas both spouses are fully self supporting, both par ties waive all right or claim which they may now have to receive support or maintenance from the other, subject to the below listed provisions . No court shall have jurisdiction to award spousal support at any time regardless of any circumstances that may arise, other [than] those expressly liste d within this agreement

. A. Husband acknowledges that he is presently liable to wife for the cost of child care and support in the amount of $200 a month . . . up to and including (with final payment) July 1, 2009. B. Wife agrees to waive receip t of spousal support in lieu of: 1. Husband maintaining the cost of medical, dental and auto insurance coverage for Wife and Minor Child, cost of all personal property taxes on the two vehicles currently owned by the parties and monthly cost of- 3 - maintenance and insurance of the Sprint cell phones for Wife and Minor Child.

2. Husband will continue to maintain life insurance policies on Husband, naming Wife as beneficiary and in the event of Wife pre-deceasing Husband, beneficiary will be Minor Child . . . . (Emphases added). A final decree of divorce that affirmed, ra tified, and incorporated the agreement was entered July 14, 2008. In February 2009, the wife remarried. About five years after the divorce, in August 2013, the wife filed a petition seeking issuance of a rule to show cause requiring the hu sband to explain why he had not maintained the various types of insurance require d by the parties’ agreement or paid the personal property taxes

and cellular tele phone expenses. 1 At the subsequent show cause hearing, the wife conceded that the parties’ agreement was not “the most artfully drafted do cument” but emphasized that it specifically referred to the payments at issue as being “in lie u of” spousal support. 2 She argued, in the alternative, th at if the agreement was ambiguous, th e intent of the parties would be relevant, and she presented he r own unrebutted testimony on the issue of intent. The husband contended that the insurance, ta x, and cell phone expenses were it ems to be paid “in kind” and were “in the nature . . . of spousal support” be cause they were grouped with the provision of the agreement concerning spousal support. As a result, he contended that his obligation to pay them terminated upon the wife’s remarriage in early 2009. The trial court agreed with the husband, characterizing the obligations at issue as “spousal support in kind” such that they terminated upon the wife’s remarriage.

1 The wife also contended that the husband failed to pay child support. That matter was addressed at the hearing, was decided in the wife ’s favor, and is not in dispute in this appeal.

2 The wife concedes that the husband’s oblig ation to pay the list ed expenses for the parties’ daughter terminated when th e daughter reached the age of majority.- 4 - II. ANALYSIS The wife argues on appeal that the circuit cour t erred in concluding th at the obligations at issue are for all practical purposes spousal support payments that terminated upon her remarriage. She also seeks an award of attorney’s fees and costs. We hold that the circuit did not err in classifying the obligations as spousal support payments. Further, we deny the wife’s request for an award of attorney ’s fees and costs on appeal. A. The Agreement and the Wife’s Remarriage Our appellate review of the circuit court’s ruling requires us to examine both the statutory scheme and the provisions of the parties’ agreement. That review is governed by well-established principles. The construction of a statute is a que stion of law that we review de

novo on appeal. See, e.g., Dowling v. Rowan, 270 Va. 510, 519, 621 S.E.2d 397, 401 (2005). Similarly, the construction to be given a settleme nt agreement entered into upon divorce, like any contract, is a question of law as long as the contract is not am biguous. See, e.g., Stacy v. Stacy, 53 Va. App. 38, 43-44, 669 S.E.2d 348, 350-51 (2008) ( en banc ). 3 Upon divorce, a spouse may seek court-or dered spousal support based on various statutory factors. See Code § 20-107.1. Alternat ively, the parties may enter into an agreement regarding the payment or nonpayment of spousal support. See Code § 20-109. “‘Court ordered support is intended to place the burden on a spouse or parent to maintain his or her family rather than placing that burden on the state.’” Wiencko v. Takayama, 62 Va. App. 217, 232, 745 S.E.2d 168, 175 (2013) (quoting Williams v. Williams, 4 Va. App. 19, 24, 354 S.E.2d 64, 66 (1987)). An agreement concerning spousal s upport may achieve the same goal. Cf. id.

3 Only if an agreement is ambiguous may parol testimony be accepted to determine its meaning. See, e.g., Stroud v. Stroud, 49 Va. App. 359, 367, 641 S.E.2d 142, 146 (2007). An agreement is not ambiguous “‘merely because the pa rties disagree as to the meaning of the terms used.’” Stacy, 53 Va. App. at 42 n.3, 669 S.E .2d at 350 n.3 (quoting Plunkett v. Plunkett, 271 Va. 162, 168, 624 S.E.2d 39, 42 (2006)).- 5 - Spousal support may take various forms. A court may order that statutory support be made in periodic payments for a defined or undefined duration, in lump sum, or “in any combination thereof.” Code § 20-107.1(C). Also, spousal support payments may be made directly to the obligee spouse or, upon court order or agreement, i ndirectly to a th ird party on the obligee spouse’s behalf. See, e.g., Code § 20-107. 1(H)(5) (implicitly recogni zing the ability of a court to order “in kind” payments by imposing certain requirements on spousal support payments “ordered to be paid directly to the obligee ”); Duvall, Blackburn, Ha le & Downey v. Siddiqui, 243 Va. 494, 496-98 & n.1, 416 S.E.2d 448, 449-50 & n.1 (1992) (classifying as “‘in kind’ support” certain payments, including utilities and au to expenses, that the husband agreed to make “directly” to third parties). Code § 20-109, in relevant part, provides that spousal support terminates upon the remarriage of the party receiving support “[u] nless otherwise provided by stipulation or contract.” Code § 20-109(D); see also Code § 20-109.1 (making clear that this principle also applies if the court affirms, ratifies, and in corporates an agreement between separating or divorcing parties into its decree). In order to avoid this automatic termination, the statute “contemplates an expressed, not implied, [contract ual] provision that [spousal] support shall not terminate upon death or remarriage.” Radf ord v. Radford, 16 Va. App. 812, 813, 433 S.E.2d 35, 36 (1993); see Hardesty v. Hardesty, 40 Va. App. 663, 669-70, 581 S.E.2d 213, 216-17 (2003) ( en banc ); Miller v. Hawkins, 14 Va. App. 192, 197, 415 S.E.2d 861, 864 (1992). The statute’s purpose in requiring an express pr ovision to continue spousal support after remarriage is to “resolv[e] ambiguity” and thereby “reduce [] litigation.” Radford, 16 Va. App. at 813, 433- 6 - S.E.2d at 36. 4 “To permit its mandate to be ove rcome by implication would introduce ambiguity, encourage litigation and, thereby, undermine the statute’s purpose.” Id. Here, the wife contends that the parties’ agreement for the husband to pay certain expenses on her behalf is not subject to automatic terminati on under Code § 20-109(D) because the payments at issue are made expressly “in li eu of” spousal support rath er than “as and for” spousal support. Paragraph IV(B) of the agreemen t, viewed alone, provides that the wife waives the right to spousal support a nd agrees to the husband’s paymen t—“in lieu of” spousal support— of the various other types of bene fits listed. Those benefits in clude health, automobile, and life insurance, personal property taxes, and expenses for cellular telephone service. Therefore, she argues, the trial court erred in holding that th e payments were spousal support for purposes of Code § 20-109(D) and terminated upon her remarriage. This Court, however, must review the docum ent in its entirety along with the applicable

statutes and case law. In constr uing a contract, settled principles provide that a court must avoid treating a word or clause as “‘meaningless if a reasonable meaning can be given to it.’” Stacy, 53 Va. App. at 48, 669 S.E.2d at 352-53 (quotin g Dominion Sav. Bank, FSB v. Costello, 257 Va. 413, 417, 512 S.E.2d 564, 567 (1999)) (internal quotati on marks omitted). Additional principles of construction provide that th e reviewing court must interp ret a contract as a whole, harmonizing its parts when possible. Id. at 48, 669 S.E.2d at 353. Mere “unartful[]” drafting does not render an agreement ambi guous “if its parts ca n be read together without conflict.” Doswell Ltd. P’ship v. Va. Elec. & Power Co., 251 Va. 215, 223, 468 S.E.2d 84, 88 (1996).

4 Such a statute is based on the presump tion that the “legal obligation of support embodied in the new marital relationship” minimizes the risk of need fo r state intervention to provide support. See Voyles v. Voyles, 644 P.2d 847, 849 (Alaska 1982), modified by Hixson v. Sarkesian, 66 P.3d 753, 760 (Alaska 2003). Ending “the obligation of support from the past marital relationship,” in turn, increases the ability of the “independent spouse” to “enter into a new marital relationship, raise a family, or take on [other] ne w financial responsibilities.” Voyles, 644 P.2d at 849.- 7 - Applying these principles, we conc lude that the trial court did not err in its construction of the parties’ agreement. Paragraph IV of the agreement covers s pousal support and child support. Although it is titled “Waiver of Right to Support,” it specifical ly provides for a set amount of monthly child support in Paragraph IV(A). Clearly, ther efore, it does not re flect a waiver of all support. Further, the introductory paragraph that follo ws the heading and pr ecedes the lettered and numbered subparagraphs contains additional rele vant language. The first sentence of that paragraph refers generally to all types of support. It states that both parties waive any right to “receive support or maintenance from th e other,” but it makes that waiver “ subject to the below listed provisions .” (Emphasis added). This languag e, although general, implies that the provisions that follow involve support. The seco nd sentence of the introductory paragraph is more specific and states that no court has ju risdiction to award “spousal support at any time regardless of any circumstances . . . , other [than] those expressly lis ted within this agreement .” (Emphasis added). This language, like the languag e in the first sentence, implies that payments made pursuant to other “circumstances” listed in this portion of the agreement do, in fact, constitute spousal support.

It was within this structural framework that the parties provided for the payment of child support in Paragraph IV(A) and the benefits at is sue in Paragraph IV(B). The meaning we glean from the language and structure of Paragraph IV as a whole is that the phrase “in lieu of [spousal support]” is simply shorthand for the fact that the agreement does not re quire the husband to pay periodic spousal support directly to the wife in a fixed monthly sum. We conclude that, in the context of the entire agreement, the payments to be made on the wife’s behalf are a form of spousal support for purposes of Code § 20-109(D).- 8 - This Court’s decision in McCoy v. McCoy, 55 Va. App. 524, 687 S.E.2d 82 (2010), supports this conclusion. In McCoy, this Court held that under the langu age of an agreement entered into between former spouses and incorp orated into their divor ce decree, the former husband’s obligation to provide health insu rance coverage for his former wife was not spousal support. Id. at 529-30, 687 S.E.2d at 84. The Cour t noted that “the spousal support section and the insurance section [of the agreement] are completely separate, with several sections regarding

distribution of the marital assets and debt comi ng between them.” Id. at 529, 687 S.E.2d at 84.

We further noted that the struct ure and operation of the two provisi ons were also separate. Id. The former “[h]usband’s obligation to provide th e insurance arose when he signed the agreement . . . .” Id. Regarding spousal support, howev er, the former wife specifically released her ex-husband “‘from any and all claims for her s upport and maintenance as his [former] [w]ife, provided that the [former] [h]usband shall, at all times, perform his obligations as stated in th[e] [a]greement.’” Id. at 526, 687 S.E.2d at 82-83 (e mphasis omitted). The Court ultimately ruled that health insurance was not a form of spous al support under the agreement. Id. at 530, 687

S.E.2d at 84. We reached this conclusion for tw o reasons: (1) the agreement defined spousal support as an obligation that would arise, if at all, “in the futu re due to [the former] husband’s failure to abide by the agreement” and (2) the former husband’s obligation to provide health insurance “[did] not arise because he breached the agreement.” Id. at 529-30, 687 S.E.2d at 84 (emphasis added). In the instant case, by contrast, the husba nd’s obligation to provide the insurance and other benefit payments at issue was specifically set out in the same section in which the wife agreed to waive the “recei[pt] [of] support or maintenance [direc tly] from the [husband].” Most importantly, her waiver of the right to that s upport was expressly made “subject to the below listed provisions,” which were specifically itemized in that same section of the agreement.- 9 - Those provisions included the husband’s duty to ma intain the cost of medical, automobile, and life insurance coverage for or on behalf of th e wife; all personal pr operty taxes on the two vehicles owned by the parties; and monthly “maintenance and in surance” for the wife’s cell phone. Thus, the wife waived one form of spousal support, periodic monthly payments to her in a set dollar amount, in exchange for receiving su pport in a different fo rm, various “in kind” payments for insurance, personal property taxes, and cell phone service. Cf. Code §§ 20-60.3(8)(a), 20-107.1(H )(3) (providing that certain orders directing the payment of spousal support shall include a “statement as to whether th ere is an order for health care coverage” for a spouse or former spouse); Code § 20-108.1(C) (a uthorizing a court determining child support “to order either party or both part ies to provide . . . health care coverage for a spouse or former spouse”); Wroblewski v. Russell, 63 Va. A pp. 468, 480-81 & n.6, 759 S.E.2d 1, 7 & n.6 (2014) (holding that “the Code evinces an unmistakable legislative intent to permit trial courts to enter . . . an order” directing one spouse in a divorce to pay the health insurance premiums of the other spouse and that “[a]n order directing [such payment] . . . is best conceptu alized as a component part of the maintenance and support of the spouse receiving the premiums”). The parties could easily have opted to ove rride the automatic termination effected by Code § 20-109(D) by expressly provid ing that the payments at issu e were not to terminate under that code section upon the wife’s remarriage. They did not do so. Accordingly, we conclude that Code § 20-109(D) applies and th e husband’s obligation terminated by operation of law. To hold otherw ise on the facts of this case would defeat the General Assembly’s purpose of resolving any uncerta inty in favor of termination. Cf. Hardesty, 40 Va. App. at 667-70, 581 S.E.2d at 216-17 (hol ding that a provision stating “that spousal support ‘cannot be terminated for any reason’” is insufficient to m eet the specificity requirement of Code § 20-109(D) and that “‘any attempt to abrogate [its effect] requires express language- 10 - either citing the statute or expr essly stating that remarriage does not terminate the obligation’” (quoting MacNelly v. MacNelly, 17 Va . App. 427, 430, 437 S.E.2d 582, 584 (1993))). B. Attorney’s Fees on Appeal The wife seeks an award of attorney’s f ees and costs on appeal. Whether to award attorney’s fees and costs on appeal is discretionary. This Court takes into consid eration factors such as whether the requesting pa rty has prevailed or other reasons exist to support an award of fees and costs. See, e.g., Estate of H ackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004); O’Loughlin v. O’Loughlin, 23 Va. A pp. 690, 695, 479 S.E.2d 98, 100 (1996). Here, the wife has not prevailed. In addition, she ha s presented no evidence or argument on brief advancing any other grounds upon which an award of fees and costs might be warranted. Thus, we decline the wife’s request for an award of attorney’s fees and costs.

III. CONCLUSION We hold that the financial obligations at issu e were spousal support for purposes of Code § 20-109(D) and terminated upon the wife’s remarr iage. Therefore, we af firm the circuit court’s ruling. We also decline the wife’s request for an award of attorney’s f ees and costs on appeal.

Affirmed.