COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Decker Argued at Alexandria, Virginia

EVANGELIA GONZALES MEMORANDUM OPINION * BY v. Record No . 0911-17-4 JUDGE RANDOLPH A. BEALES JANUARY 16, 2018 RAFAEL A. GONZALES

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Craig D. John ston, Judge Mariam Ebrahimi for appellant. Maureen A. Kersey for appellee.

Evangelia Gonzales (“wife”) appeal s the Circuit C ourt of Prince William County’s interpretation of P aragraph 28 of the parties’ property settlem ent agreement (the “Agreement” or “PSA”). 1 The trial court int erpreted that paragr aph as entitling wife to one-half of the marital share of the United States Secr et Service (“Secret Service”) pe nsion for Rafael Gonzales (“husband”) after his spousal s upport obligation concluded. Ho wever, the trial court ruled that Paragraph 28 did not entitle wife t o a retroactive lump sum of the pension income that husband received between January 4, 2007 and September 1, 2016. Wife t imely appealed, contending that the “trial court erred i n its interpretation of Paragraph 28 of the Agreement, denying [sic] to

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

1 The Court recognizes that the p arties have been divorced for m ore than ten years. However, because the Agreement in question refers to the partie s as “husband” and “wife,” we have used these same descriptions in referring to the parties f or the sake of consistency and clarity.UNPUBLISHED- 2 - award [wife] the one-half of the marital share of [husband’s] s ecret service pension calculated as of the date of execution of t he parties’ Agreement . . . .”
I. BACKGROUND During the marriage, husband was employed with the Secret Serv ice, and he earned a pension from this employment. A t the time of the parties’ sepa ration on August 31, 2004, husband was newly retired from th e Secret Service and receiving income from the Secret Service pension. On January 4, 2007, the part ies entered into the Agre ement, which was subsequently “affirmed, ratified and incorporat ed but not merged” into the A ugust 23, 2007 final decree of divorce, pursuant to Code § 20-109.1. Under the terms of the Agreement, husband made monthly spousal support payments for a period of ten years that be gan on October 1, 2006 and conclud ed on September 1, 2016. After husband’s spousal support obligat ion concluded, w ife filed a mo tion to reinstate the case in the trial court. On October 17, 2016, she filed a motion for decla ratory judgment asking the trial court to declare that “Paragr aph 28 of the parties’ Agreement e ntitles Ms. Gonzales to her full one-half of the marital share of the Plaintiff’s [husband’s] Se cret Service pens ion, including for the time period for the last ten y ears, for which her entitleme nt to receive the retirement was put on hold.” Wife also asked that the trial court order “Plaintif f to pay the lump sum of the last ten years.” At issue in this matter is the trial court’s interpretation of three sentences of the Agreement’s Paragraph 28, entitle d “Pension, Retirement Plans a nd Other Investments.” The disputed portion of Paragraph 28 states: Wife shall be entitled to rece ive one-half portion of any sums or benefits, whether matured or un- matured, accrued or un-accrued, vested or otherwise, together wi th all increases thereof, relat ed to husband’s retirement plans, pens ion plans, 401 K or otherwise, arising from husband’s employ ment from April 26, 1995 (date of marriage) until August 31, 2004 (date of separation). Payment of- 3 - any retirement benefits herei n awarded would not be due to wife until cessation of spousal support and maintenance as provided hereinabove in Paragraph 24. 2 . . . Husband agrees to take all steps reasonably necessary to maintain and to protect wife’s in terests in his pension plans, retirement plans, 401 K or otherwise. 3

2 Paragraph 24 of the Agreement is entitled “Spousal Support and Maintenance Payments.” It states: Husband shall pay to wife as and for spousal support and her maintenance the sum of f our thousand dollars ($4,000.00) per month beginning October 1, 2006 an d continuing thereafter uninterrupted every month on the f irst of each and every month for a total period of ten (10) years , for the total sum of four hun dred eighty thousand dollars ($480,000.00). Husband agrees that he shall not seek a downward modi fication or termination of his obligation to pay spousal support an d maintenance to wife excep t as provided herein. Husband sha ll treat spousal support paymen ts as an income tax deduction, and wif e shall claim spousal suppor t payments as reportable gross income for tax purposes. Husband acknowledges and promises that he shall pay spousal support and maintenance to wif e for ten (10) full years at $4,000.00 per month, regardless of a ny change in husband’s or wife’s circumstances, except, onl y, in case of wife’s remarriag e, either parties’ death or wife’s habitual cohabitation with anot her person in a relationship analogous to a marriage for one year o r more, as defined by applicable law . Other than the foregoing exceptions, husband’s obligations h erein are not modifiable by a court of law. By way of d emonstration and not limitation, husband’s obligation to pay spous al support shall not terminate nor be modified in case of husband’s disability, change of income, job loss, retirement, re-marriage or other change in either party’s circumstances.

3 On March 24, 2017, prior to the t rial court’s hearing on the m otion for declaratory judgment, the parties filed an addendum to the Agreement that e xcluded certain retirement accounts – not including husband’s Secret Service pension – fro m the scope of Paragraph 28. By court order, that addendum was subsequently incorporated, but n ot merged, into the original January 4, 2007 Agreement. We nee d not address the details of this addendum because the parties do not disput e its provisions.- 4 - On April 18, 2017, the trial court he ard the parties’ arguments on wife’s motion for declaratory judgment. On Ma y 5, 2017, the trial court denied w ife’s motion. The trial court found that “there does not exist a ny ambiguity in the parties’ Property Settlement and Support Agreement” – and that “the overall purpose of Paragraph 28 of t he Agreement and its most reasonable reading is that the D efendant/Counter-Plaintiff [wif e] shall receive her ex-spouse’s retirement benefits after spousal support ends.” The trial cou rt also found “it is not reasonable to make payments for the Plaintiff/ Counter-Defendant’s [husband’s] secret service pension retroactive to the date of execution of the Agreement.” This appeal followed.
II. ANALYSIS Appellate courts review a trial court’s interpretation of a con tract de novo . Plunkett v. Plunkett, 271 Va. 162, 166, 624 S.E.2d 39, 41 (2006). “Propert y settlement agreements entered into pursuant to a divorce proceeding are contracts; ‘therefore , we must apply the same rules of interpretation applicable to c ontracts genera lly.’” Smith v. S mith, 15 Va. App. 371, 374, 423 S.E.2d 851, 853 (1992) (quoting Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985)). These rules of contract inter pretation are well-settled. Contracts are construed as writt en, without adding terms that w ere not included by the parties. Whe re the terms in a contract are clear and unambiguous, the contract is construed accord ing to its pla in meaning. A contract is not amb iguous merely because the partie s disagree as to the meaning of the terms used. Furthermore, contracts must be considered as a whole without giving emphasis to isolated terms. Plunkett, 271 Va. at 167-68, 624 S.E.2d at 42 (internal citatio ns and quotations omitted) (quoting TM Delmarva Power, L.L.C. v. NCP of Virginia, L.L.C., 263 Va. 1 16, 119, 557 S.E.2d 199, 200 (2002)). Also, “we are not to tre at any word or clause in the PSA as meaningless if a reasonable meaning can be given to it, and th ere is a presumption that the parties have not used words- 5 - needlessly.” Stacy v. Stacy, 53 Va. App. 38, 48, 669 S.E.2d 34 8, 352-53 (2008) ( en banc ) (internal citations and quotations omitted). The parties conceded in the tr ial court and on appeal that the Agreement’s language is clear and unambiguous, and there fore, its meaning should be con strued from the four corners of the document. See Brooks v. Bankson, 248 Va. 197, 204, 445 S.E .2d 473, 476-77 (1994) (“The guiding light in the construction of a contract is the intentio n of the parties as expressed by them in the words they have used, and c ourts are bound to say that t he parties intended what the written instrument plainly decl ares.” (quoting W.F. Magann Corp . v. Virginia-Carolina Elec. Works, Inc., 203 Va. 259, 264, 123 S.E.2d 377, 381 (1962))). W hile this Court is not bound by the parties’ or the trial cour t’s interpretati ons of the Agreem ent, we concur that its language is clear and unambiguous. Therefore, we must interpret the Agreem ent’s plain language in the context of the four corners of t he entire document. See Eure v . Norfolk Shipbldg. & Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002) (“[O]n appe al we are not bound by the trial court’s interpretation of the cont ract provision at issue; rath er, we have an equal opportunity to consider the words of the contra ct within the four corners of t he instrument itself.” (citing Wilson v. Holyfield, 227 Va. 184, 187-88, 313 S.E.2d 396, 398 (1984)))

. We begin with the plain meaning of the three disputed sentences of Paragraph 28. The first disputed sentence of Paragraph 28 states: Wife shall be entitled to rece ive one-half portion of any sums or benefits, whether matured or un- matured, accrued or un-accrued, vested or otherwise, together wi th all increases thereof, relat ed to husband’s retirement plans, pens ion plans, 401 K or otherwise, arising from husband’s employ ment from April 26, 1995 (date of marriage) until August 31, 2004 (date of separation). This sentence serves two functi ons. First, it es tablishes in v ery broad terms wife’s right to receive one-half portion of the m arital share of husband’s Secr et Service pension. Second, it explicitly defines the marita l share based upon the dates provi ded. The second disputed sentence- 6 - of Paragraph 28 modifies the fir st sentence, and it states, “Pa yment of any retirement benefits herein awarded,” i.e., what was awarded in the previous sentenc e, “would not be due to wife until cessation of spousal support and maintenance as provided hereinabove in Paragraph 24.” Thus, the second sentence places an explicit limitation as to when wife receives the award given in the first sentence. Specifi cally, wife’s righ t to receive o ne-half of the marital share of the Secret Service pension become s due only at the cessation of spo usal support. In noting what this sentence’s plain language does, w e also recognize that which it does not do; it do es not state whether wife’s award is due to he r retroactively (i.e., from pe nsion payments that husband had received while he was paying wif e spousal support) – or whether she simply receives it prospectively. The third disput ed sentence of Paragraph 28 sta tes, “Husband agrees to take all steps reasonably necessary to m aintain and to protect wife’s in terests in his pension plans, retirement plans, 401 K or otherwise.” Similar language is oft en used in property settlement agreements to prevent a party fro m taking action that could end anger the other party’s right to receive his or her portion of a pension or a 401 K deferred com pensation plan, and we interpret the last sentence of Par agraph 28 as doing just that. Therefore, while the first disp uted sentence uses broad terms t o establish wife’s right to one-half of the marital share of the Secret Service pension, it is unclear from Paragraph 28’s plain meaning whether that right applies retroactively or wheth er the parties intended solely for it to apply prospectively upon the cessation of spousal support. Consequently, we must look to other parts of the Agreement to de termine the parties’ intentio ns in Paragraph 28. See Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983) (“The con tract must be read as a single document. Its meaning is to be gathered from all its associate d parts assembled as the unitary expression of the agreement of t he parties. However inartfully it may have been drawn, the court cannot make a new contract for t he parties, but must construe i ts language as written.”).- 7 - On brief, wife disagr ees with the trial c ourt’s interpretation that she is not entitled to retroactive payments of her porti on of the Secret Service pensi on. Wife argues that the following language in the first dispute d sentence is broad and unlimited, “Wife shall be entitled to receive one-half portion of any sums or bene fits, whether matured or un -matured, accrued or un-accrued, vested or otherwise . . . .” Bas ed upon this broad language, w ife argues that she is entitled to one-half of the marital share of husband’s Secret Service pensi on as of January 4, 2007 (the date that the parties entered the Agr eement). Wife argues that the second sentence does not limit the

amount of her half portion of the marit al share of husband’s pension (which she claims began accruing on January 4, 2007); rather, she argues that the secon d sentence merely states when she can claim this amount. Finally, the last disputed sentence req uires husband to “take all steps reasonably necessary to maintai n and to protect wife’s interest s . . . .” Wife argues that this language implies the existence of her retroactive share of husb and’s pension – and that this is her interest that husband was r equired to protect. In support of her interpretation of the Agreement, wife argues that the language of Paragraph 28 is clear and unambig uous. Therefore, she claims t hat the trial court did not need to look to the rest of the Agreemen t to interpret Paragraph 28’s m eaning. Thus, wife argues that Paragraph 28 should be read in isol ation, and the trial court e rred by looking to the rest of the Agreement to interpret it. This argument is unpersuasive for two reasons. First, it is co ntrary to the settled principle of contract interpretation that r equires this Court to interpre t an agreement in its entirety. “In reviewing the agreement, we must gather the intent of the parti es and the meaning of the language, if we can, from an examination of the entire instrument , giving full effect to the words the parties actually used.” Smith, 15 Va. App. at 374, 423 S.E .2d at 853 (emphasis added) (quoting Layne v. Henderson, 232 Va. 332, 337-38, 351 S.E.2d 18 , 22 (1986)). Second, wife’s- 8 - argument that Paragraph 28 shoul d be read in isolation contradi cts the plain language of Paragraph 28, which explicitly r eferences Paragraph 24. Paragr aph 28 states, “Payment of any retirement benefits herein awa rded would not be due to wife unt il cessation of spousal support and maintenance as provided hereinabove in Paragraph 24.” Ther efore, based upon a settled principle of contract law and also based upon Paragraph 28’s pl ain language – to which the parties agreed – we must examine other portions of the Agreemen t to interpret Paragraph 28. Paragraph 24 describes husband’s payment of spousal support to wife. From Paragraph 24’s plain language, it is clear t hat the parties drafted the A greement with caref ul detail so as to protect their respec tive interests. For example, the details c ontained in Paragraph 24 include the date that spousal support began, the length of time spousal sup port would be paid, the day of each month when spousal support was due, the amount of each mon thly payment, and the total amount of spousal support paid ove r the ten-year support period . Paragraph 24 also details how the parties would claim spousal s upport on their income taxes; husband would claim it as a deduction and wife woul d claim it as income. Finally, Paragrap h 24 lists the very limited circumstances that would cause an early termination of husband’ s spousal support obligation. Reading Paragraphs 24 and 28 togeth er, as Paragraph 28 requires , it is apparent that Paragraph 28 lacks a commensurat e level of detail – when compar ed to the Agreement’s other paragraphs – if its purpose is to require reserving or escrowin g pension payments from January 4, 2007 until September 1, 2016, and then require the payment t o wife of those funds that have been presumably reserved by husband (and not spent by him over those nearly ten years). On the contrary, other paragraphs t hat require payments by husband to wife (or to wife’s daughters) have those requirements spel led out in considerable detail. 4 This lack of detail directly

4 For example, Paragraph 30 states the exact amount of property to be retained by wife (“Wife shall have as her sole a nd separate property the balance of the $30,000.00 insurance claim from the parties’ last move without any claim whatsoever by husband.”). Paragraph 27- 9 - contradicts wife’s claim that th e parties intended for her to r eceive a lump sum of husband’s pension dating back to Januar y 4, 2007. For example, Paragraph 28 contains no detail regarding how that amount of the pension w ould be paid – i.e., (1) as a l ump sum, (2) over a defined payment plan, or (3) in monthl y installments (a) in conjunctionwith the regular payments; or (b) separately from the regular payments. If this large portion of the pension was to be paid to wife over a period of time, then t he Agreement fails to state t he number of payments or the amounts of these payments. Also, if what was actually wife’s s hare of the pension was paid to husband for nearly ten years, and if he presumably paid income taxes on it, there is no detail regarding whether the parties w ould need to amend their respect ive income tax returns – or whether husband would pay wife th e portion of the pension less any federal and state income taxes he has already paid on wif e’s portion. Finally, there is simply no detail at all even regarding whether the amount ar guably owed to wife included acc rued interest for ten years and at what interest rate. At oral argument, the Court aske d wife’s counsel about the lack of detail in Paragraph 28 regarding how husband would main tain wife’s claimed portion of the Secret Service pension until the time of payment of it to her. Wife’s counsel indicat ed that the partie s intended to leave these details to husband’s discretion. 5 If doing so were actually the case, it would be an obvious

describes husband’s health ins urance obligations to wife and he r daughters and his life insurance obligation to wife. Paragraph 25 r equires husband to continue to pay the college tuition of wife’s daughters who were then attending William and Mary. Specifical ly, Paragraph 25 even goes so far as to detail the minimum grad e point average that the daugh ters must maintain to continue receiving husband’s assistance in paying their tuition.

5 In another provision of the Agreem ent where the parties could not provide the details of every possible contingency, the Agr eement specifically states t hat “the parties shall cooperate with one another” in order to e ffect the purpose of the provisi on. There is no similar language in Paragraph 28 about the parties c ooperating to decide these impo rtant details about the payment of the Secret Service pension. O n the contrary, in Paragraph 2 2 of the Agreement, which deals with the parties’ marital home, it is apparent that the parties intended to retain some flexibility and discretion as to whether wif e would keep the home. The rel evant portion of Paragraph 22- 10 - departure from the parties’ intent elsewhere in the Agreement. By looking at the entirety of the Agreement, as we must, it is apparent that the parties intended to draft the Agreement with precise detail to protect their re spective interests – without leaving important details to the other party’s discretion. Reading the Agr eement as a whole, if the p arties had intended for wife to receive a significant lump sum ( or escrowed installment payment s) of husband’s pension that had accrued all the while over the ten years that he was paying her spousal support, the parties would have drafted Paragraph 28 i n significantly greater detail to protect their interests in relation to this asset. The l ack of detail in the language of Paragraph 28 (in contrast to the detail in the rest of the Agreement) indi cates to this Court that the parties did not in tend for wife to receive a retroactive portion of husband’s Secret Service pensi on, as she claims. Furthermore, we do not find that any other prov ision of the Agreement lacks the most basic details to guide the parties in their execution of it – or to answer the question of whether a right to have or receive something even exists. Even assu ming arguendo that wife is ent itled to the retroactive lump sum that she claims (which we do not f ind), the Agreement simply la cks the most basic details by which a court could order husba nd to comply with the payment of it. Therefore, to find as wife suggests, this Court would esse ntially need to write in the ter ms of the Agreement related to retroactive payment of the Secr et Service pension to wife. As stated above, we cannot read in a requirement that the parties did not include, nor can we add or write in the terms that would create it. Therefore, upon de novo review, we hold that the trial court ru led correctly.

states, “If within the next seve n (7) years as husband’s obliga tions herein continue, wife decides that she no longer desires to r eside in the residence, the parties shall cooperate with one another to list and sell the residence.” (Emphasis added). Thus, the discretion retaine d by the parties is balanced against the explicit re quirement that the parties shal l cooperate with one another in fulfilling Paragraph 22’s requirements. In contrast, Paragraph28 does not contain similar language, which is indicative th at the parties did not intend t o leave key provisions of its execution largely to the p arties’ discretion.- 11 - III. CONCLUSION In summary, it is clear from th e Agreement’s language, properly examined in the context of the entire Agreement, that th e Agreement required the paymen t of spousal support for ten years – to be followed by monthl y payments to wife of one-half of the marital portion of husband’s Secret Service pensi on. In short, wife was entitled to one-half of the marital share of husband’s Secret Service pension payments once the spousal supp ort payments had ceased. This conclusion is supported by examining Paragraph 28’s language in light of the Agreement’s other provisions, including Parag raph 24, to which Paragraph 28 refer s. These various other provisions of the Agreement show t hat the parties used signific ant detail when creating other required payments by husband, such as husband’s payment of spou sal support to wife or husband’s payment of the colle ge tuition of wife’s daughters. In contrast, Paragraph 28 lacks any comparable level of detail f rom which we could reasonably c onclude that wife is owed a retroactive lump sum (or a serie s of payments) of some amount o f husband’s Secret Service pension from the ten years dur ing which he was already paying s pousal support. Therefore, for all these reasons, we affirm the trial court’s interpretation o f Paragraph 28 of the parties’ Agreement. Husband requests the payment of his attorney’s fees and costs i ncurred in defense of this appeal. The parties’ PSA governs whether attorn ey’s fees and c osts that are incurred in defending that Agreement are asse ssed against the other party. 6 Because husband is successful

6 Paragraph 12 of the Agreement states: The parties agree that if one pa rty incurs any expenses in the enforcement of any of the provisi ons of this Agreement, the oth er will be responsible for all reas onable court costs and attorney ’s fees and other expenses incurred i n such enforcement as may be determined by a court of competent jurisdiction. Any such costs, fees and expenses incurred by a par ty in the successful defense of any action for enforcement of any of the agreements, provisions or- 12 - on appeal in defending wife’s assi gnment of error related to th e circuit court’s ruling, Paragraph 12 of the PSA clearly directs that all his reasonable court cos ts and attorney’s f ees related to this appeal shall be paid by wife. We make that award to him and re mand to the circuit court for a hearing to determine the amount of reasonable attorney’s fees a nd court costs incurred by husband on appeal. See Sanford v. Sanford, 19 Va. App. 241, 24 9-50, 450 S.E.2d 185, 190 (1994) (ordering a party to pay his form er spouse’s attorney’s fees re lated to an appeal in which the former spouse prevailed, as provided in the parties’ separation agreem ent). Affirmed and remanded.

covenants of this Agreement shall be borne by the party seeking to enforce compliance. These costs, fees and expenses shall include, but not be limited to, actual atto rney’s fees, court reporter f ees, filing fees, service of process f ees, any other fees, costs or expenses reasonably related to such litigation . . . . (Emphasis added).