COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

JERRY C. PATE 

 MEMORANDUM OPINION*

v. Record No. 0479-96-4 PER CURIAM 

 OCTOBER 1, 1996 

BARBARA R. PATE, N/K/A 

 BARBARA R. WILEY 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Gerald Bruce Lee, Judge 

 (James R. Hart; Dixon, Smith & Stahl, on 

briefs), for appellant. 

 (Paula W. Rank; Lawrence H. Bowen; Byrd, 

Mische, Bevis, Bowen, Joseph & O'Connor, 

P.C., on brief), for appellee. 

 Jerry C. Pate (husband) contends the trial court erroneously 

amended the final decree of divorce as it pertained to his 

military retirement, erroneously computed an arrearage to include 

cost of living increases, and erroneously awarded attorney's fees 

to his former wife, Barbara R. [Pate] Wiley (wife). Upon 

reviewing the record and briefs of the parties, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the decision of the trial court. Rule 5A:27. 

 "Property settlement and support agreements are subject to 

the same rules of construction and interpretation applicable to 

contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180, 

355 S.E.2d 342, 346 (1987). "[O]n appeal if all the evidence 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

which is 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." Id.

 "Amended Decree" 

 Husband contends that the trial court's order was an 

extra-jurisdictional attempt to modify the terms of the final 

decree more than twenty-one days after the order was entered in 

violation of Rule 1:1. In addition, husband contends the court's 

order was an impermissible attempt to rewrite the parties' 

agreement. 

 Two years after entry of the final decree, the wife filed a 

motion to interpret and enforce the terms of the existing 

agreement. The court retains jurisdiction, even after the 

expiration of twenty-one days from the date the final decree was 

entered, to enforce the parties' existing agreement as 

incorporated in the final decree. Rook v. Rook, 233 Va. 92, 

95-96, 353 S.E.2d 756, 758 (1987). Thus, we hold that the 

husband's contention concerning jurisdiction is without merit. 

 The agreement provides in paragraph 23(g) as follows: 

 [Husband] agrees that [wife] is awarded 

a monetary sum equal to FORTY PERCENT (40%) 

of the disposable retired pay and costs of 

living increases if, as and when received. 

Disposable military retired pay is defined by 

the applicable laws and regulations. [Wife] 

shall receive FORTY PERCENT (40%) of the said 

disposable retired pay. To the extent that 

said portion of retired pay is not paid 

directly to [wife] by the Secretary of the 

Army or his designated agent, [husband] is 
 3 

designated as a constructive trustee for 

[wife] . . . . 

 [Husband] agrees that if there is a 

diminution, reduction or cessation of the 

amount paid to [wife] hereunder, due to an 

act or omission of [husband], he shall 

personally pay to [wife] that amount not paid 

directly to her by the United States Army 

. . . . Specifically, the election by 

[husband] of any survivor benefit plan 

benefits in the future shall not affect in 

any way [wife's] share of the military 

retired pay set forth herein. 

These provisions were "ratified, affirmed, and incorporated" into 

the final decree as permitted by Code § 20-109.1. In 1993, when 

the final decree was entered, husband was receiving regular 

retirement pay and wife was receiving $1,478. 

 The evidence proved that husband began to receive disability 

retirement pay in July 1994. Husband's election of disability 

retirement reduced the amount received by wife. Thus, the trial 

judge correctly ruled that the provision of paragraph 23(g) was 

implicated. 

 In Owen v. Owen, 14 Va. App. 623, 419 S.E.2d 267 (1992), 

under similar circumstances, we ruled as follows: 

 [F]ederal law does not prevent a husband and 

wife from entering into an agreement to 

provide a set level of payments, the amount 

of which is determined by considering 

disability benefits as well as retirement 

benefits. 

* * * * * * * 

 The trial court correctly found that the 

guarantee/indemnification clause created a 

separate agreement between the parties to 

maintain a certain level of payments to the 

wife. The husband acknowledged that he had 
 4 

no disability rating at the time the 

agreement was signed. . . . The lengthy 

provisions of the PSA . . . show the parties' 

clear intent to maintain a stable payment 

level. If we adopted the husband's 

interpretation of the guarantee language, the 

guarantee would be rendered virtually 

meaningless, due to potentially large-scale 

conversion of retirement benefits to 

disability benefits. Conceivably, husband's 

disability payments could eliminate 

completely the wife's benefits. Such a 

result is irrational and does not comport 

with the clear intent expressed by the 

language of the PSA. 

Id. at 628-29, 419 S.E.2d at 421. 

 Here, the trial court found that the terms of the agreement 

and the final decree were consistent and "that the act of 

electing military disability retirement pay is an act that the 

husband sought that had the effect of a diminution, reducing the 

amount of the military retirement pay payable to the wife." We 

agree with the trial court's interpretation of the agreement and 

with its conclusion. 

 Furthermore, the trial court's order enforced, but did not 

amend, the terms of the parties' agreement and final decree. 

Therefore, the trial court did not exceed its jurisdiction. 

Rook, 233 Va. at 95-96, 353 S.E.2d at 758. 

Arrearage

 Husband also contends that the trial court erroneously 

interpreted the final decree to include cost of living increases. 

 The agreement and decree clearly provide for wife to receive 

cost of living increases "if, as and when received." Husband's 
 5 

interpretation that $1,478 per month was a cap on wife's benefits 

is not supported by the plain language of the agreement and the 

decree. Therefore, we find no error in the trial court's 

calculation of the arrearage. 

Attorney's Fees

 Under the terms of the parties' agreement, "the party who is 

found to be substantially in violation of this Agreement shall 

pay to the party who substantially prevails . . . reasonable 

attorneys' fees . . . ." Husband's failure to comply with 

paragraph 23(g) of the agreement caused him to be substantially 

in violation of the agreement. Moreover, wife substantially 

prevailed in enforcing the agreement. 

 An award of attorney's fees is a matter submitted to the 

sound discretion of the trial court and is reviewable on appeal 

only for an abuse of discretion. Graves v. Graves, 4 Va. App. 

326, 333, 357 S.E.2d 554, 558 (1987). The trial court noted that 

several factual issues could have been resolved prior to the 

hearing. Based on the terms of the agreement, the number of 

issues involved, and the respective abilities of the parties to 

pay, we cannot say that the trial judge abused his discretion in 

awarding wife $750 in attorney's fees. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.