Glenn Edward Wisdom v. Faith Wisdom (Hyler) ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia
GLENN EDWARD WISDOM
MEMORANDUM OPINION * BY
v. Record No. 0368-97-3 JUDGE NELSON T. OVERTON
JANUARY 13, 1998
FAITH WISDOM (HYLER)
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
William N. Alexander, II, Judge
Robert P. Dwoskin for appellant.
Stacey W. Moreau (Williams, Stilwell,
Morrison, Williams and Light, on brief), for
appellee.
Glenn Wisdom (husband) appeals a qualified domestic
relations order (QDRO), entered pursuant to Code
§ 20-107.3(K)(4), interpreting his divorce decree to create a
property right in his military retirement pension in favor of
Faith Wisdom (Hyler) (wife). Husband contends on appeal that 1)
the QDRO effected a substantive change to the decree, which is
barred by Rule 1:1 and 2) even if it wasn't a substantive change,
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the trial court's interpretation of the decree is plainly wrong.
Because we find that the QDRO was not a substantive change and
the trial court's interpretation of the decree is supported by
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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Husband also included in the "Questions Presented" portion
of his brief the issue of whether the wife's action was "time
barred." Because he failed to brief either the facts or the law
regarding this issue, we will not consider it on appeal. Rule
5A:20.
both law and fact, we affirm the decision.
On January 2, 1992 the circuit court entered a divorce
decree incorporating the couple's separation agreement which set
forth a payment scheme by which husband would pay wife fifty
percent of husband's military retirement pension starting
December 31, 1993. The language of the agreement, however, did
not specifically label this split as either spousal support or a
property division. On March 18, 1996 wife filed a petition to
reopen the decree and requested a QDRO issue enforcing the
agreement because husband had not made the agreed payments.
Husband argued in the trial court that because wife had remarried
and the payments were spousal support, he was relieved from
further obligation by Code § 20-109 which requires cessation of
spousal support payments upon remarriage of the recipient spouse.
The trial court found the agreement to unambiguously reflect the
intent of the parties to create a property division and issued a
QDRO requiring husband to make the appropriate payments. Husband
appealed arguing that the order effected an impermissible
substantive change and even if it did not, the trial court's
interpretation of the agreement was incorrect.
We address each argument in turn. Husband is correct that
Rule 1:1 prohibits "all final judgments, orders, and decrees"
from being modified after 21 days. However, because husband's
divorce decree also divided his pension, Code § 20-107.3(K)(4)
allows courts to issue qualified domestic relations orders to
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"effectuate the expressed intent of the [decree]." The QDRO may
not "modify a final divorce decree simply to adjust its terms in
light of the parties' changed circumstances" but must be
"consistent with the substantive provisions of the original
decree." Caudle v. Caudle, 18 Va. App. 795, 798, 447 S.E.2d 247,
249 (1994); see also Fahey v. Fahey, 24 Va. App. 254, 256-57, 481
S.E.2d 496, 497 (1997) (en banc).
It is clear that orders which alter critical terms of the
contract, such as timing or amount of payments, exceed the
authority granted under Code § 20-107.3(K)(4). See, e.g., Fahey,
24 Va. App. at 256, 481 S.E.2d at 497 (dividing the actual value
of a Keogh account rather than the agreed value was a substantive
change); Decker v. Decker, 22 Va. App. 486, 495, 471 S.E.2d 775,
779 (1996) (reducing spousal support by amount of mortgage
payments on recipient spouse's house was a substantive change).
In the instant case, however, the QDRO did not alter any
critical, substantive provision. It merely clarified the
intention of the parties at the time they agreed to the divorce.
While we recognize that this interpretation will determine
whether husband must continue to make payments, the substantive
terms of their agreement will not have changed by one iota.
Therefore, the trial court's decision to reopen the decree to
interpret its meaning was proper. See Smith v. Smith, 3 Va. App.
510, 513, 351 S.E.2d 593, 595 (1986).
We also conclude that the trial court's interpretation was
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correct. "On review, we are not bound by the trial court's
construction of the contract provision here in issue. We have an
equal opportunity to consider the words within the four corners
of the disputed provisions." Wilson v. Holyfield, 227 Va. 184,
187, 313 S.E.2d 396, 398 (1984) (citations omitted). "When the
terms of a disputed provision are clear and definite, it is
axiomatic that they are to be applied according to their ordinary
meaning." Smith, 3 Va. App. at 514, 351 S.E.2d at 595.
Here, the language of the document as well as common sense
supports the conclusion that the parties intended to create a
property division rather than support payments. When describing
the payment scheme, the parties used the word "divide," which is
language used to describe property, not payments. Additionally,
spousal support payments are usually expressed in terms of hard
dollar amounts, rather than as a percentage of a fixed amount,
such as a pension check. Further, in Paragraph 9 of the
agreement, wife waived all claims to spousal support. Husband
would have us interpret the agreement to provide for both spousal
support and the immediate waiver of that support. We refuse to
make such a ludicrous conclusion. Indeed, a logical reading of
the agreement indicates that wife traded spousal support in
exchange for a fifty percent interest in husband's pension.
Because we hold that the trial court properly issued the
QDRO to effect the intent of the parties and that intent was to
create a property interest in favor of wife equal to fifty
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percent of husband's pension, we affirm the decision of the trial
court.
Affirmed.
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