Glenn Edward Wisdom v. Faith Wisdom (Hyler)

• Court: Court of Appeals of Virginia
• Decided: January 13, 1998
• Docket: 0368973
• Status: Unpublished

Opinion

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, 1 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. 1 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

2 "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

3 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

4 percent of husband's pension, we affirm the decision of the trial

court.

Affirmed.