Stacy v. Stacy

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey,
McClanahan, Haley, Petty, Beales and Powell
Argued at Richmond, Virginia

DEBORAH ANN STACY
OPINION BY
v. Record No. 0863-07-3 JUDGE ELIZABETH A. McCLANAHAN
DECEMBER 9, 2008
WILLIAM LESLIE STACY

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge

Robert J. Breimann (Street Law Firm, on briefs), for appellant.

Gerald L. Gray (Gerald Gray Law Firm, on brief), for appellee.

Deborah Ann Stacy (wife) appeals the trial court’s order terminating, pursuant to Code

§ 20-109(A), the obligation of William Leslie Stacy (husband) to make payments on a mortgage

on the former marital home under the terms of the parties’ property settlement agreement (PSA).

Wife contends the court erred in finding the payments constituted spousal support under the PSA

and, therefore, had no authority under Code § 20-109(A) to terminate husband’s mortgage

payment obligation. Wife also claims she is entitled under the PSA to an award of attorney’s

fees and costs for this appeal and the proceedings below.

A panel majority of this Court affirmed the decision of the trial court. We granted a

petition for rehearing en banc and stayed the mandate of the panel decision. Upon rehearing en

banc, we reverse the trial court and remand for the trial court’s consideration of wife’s request

for attorney’s fees and costs under the PSA.
 I. BACKGROUND

Husband and wife divorced in 2001 after entering into a PSA, wherein the parties

expressly “waive[d]” spousal support. The parties also agreed that wife would receive the

marital home and husband would be solely responsible for payment of the “remaining mortgage

indebtedness” on the home. The trial court approved the parties’ PSA and incorporated it by

reference into the final decree of divorce. Upon entry of the final decree, husband, pursuant to

the PSA, transferred his interest in the marital home to wife and “refinanced the [b]ank mortgage

obligation into a [p]romissory [n]ote solely in his name.” 1

In 2006, husband, citing Code § 20-109, filed a petition seeking to terminate his

mortgage payment obligation under the PSA based on the claim wife had been cohabitating with

an individual in a relationship analogous to marriage for several years. Under Code

§ 20-109(A), spousal support is subject to termination under certain circumstances, including the

payee’s cohabitation analogous to marriage for a year or more. 2 In response, wife stipulated to

1
Parties’ written statement of facts, paragraph 4, filed pursuant to Rule 5A:8.
2
Code § 20-109(A) provides as follows:
Upon petition of either party the court may increase,
decrease, or terminate the amount or duration of any spousal
support and maintenance that may thereafter accrue, whether
previously or hereafter awarded, as the circumstances may make
proper. Upon order of the court based upon clear and convincing
evidence that the spouse receiving support has been habitually
cohabiting with another person in a relationship analogous to a
marriage for one year or more commencing on or after July 1,
1997, the court shall terminate spousal support and maintenance
unless (i) otherwise provided by stipulation or contract or (ii) the
spouse receiving support proves by a preponderance of the
evidence that termination of such support would be
unconscionable. The provisions of this subsection shall apply to
all orders and decrees for spousal support, regardless of the date of
the suit for initial setting of support, the date of entry of any such
order or decree, or the date of any petition for modification of
support.

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her involvement in the alleged relationship for more than a year. She argued, however, that

under the express terms of the PSA husband’s mortgage payment obligation was not spousal

support; rather, it was part of the parties’ equitable distribution, thus negating Code

§ 20-109(A)’s applicability and the court’s authority to terminate the obligation.

Neither party argued that the PSA was ambiguous, and the trial court found the PSA was

unambiguous. 3 The court then “classifie[d]” husband’s third party mortgage payments as

spousal support, and thereby terminated the obligation to the bank (a non-party) pursuant to

Code § 20-109(A) on cohabitation grounds. In doing so, the court relied on language in

paragraph 9 of the PSA in which the parties stipulated that, while husband’s mortgage payments

“were not direct support payments being made to wife,” they were “in the nature of support,” and

therefore “non-dischargeable” by husband in any bankruptcy proceeding. 4

II. ANALYSIS

A. Termination of Husband’s Mortgage Payment Obligation

Wife argues the trial court erred in “re-writ[ing]” the parties’ PSA when it characterized

husband’s third party mortgage payments as “spousal support,” contrary to the express terms of

the PSA, and in terminating the obligation under Code § 20-109(A) based on that erroneous

interpretation. We agree.

The trial court’s interpretation of the PSA is an issue of law that we review de novo.

Palmer & Palmer Co., LLC v. Waterfront Marine Constr., Inc., 276 Va. 285, 289, 662 S.E.2d 77,

3
“A contract is not ambiguous merely because the parties disagree as to the meaning of
the terms used.” Plunkett v. Plunkett, 271 Va. 162, 168, 624 S.E.2d 39, 42 (2006) (citations and
internal quotation marks omitted).
4
As explained, infra, under bankruptcy law, an obligation “in the nature of support”
benefiting an ex-spouse is non-dischargeable; however, it may be deemed as such even if the
obligation is not found to be spousal support under state law.

-3-
80 (2008) (citation omitted); Henderlite v. Henderlite, 3 Va. App. 539, 541, 351 S.E.2d 913,

913-14 (1987); see Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 631, 561

S.E.2d 663, 667 (2002) (an appellate court has ‘“an equal opportunity to consider the words of

the contract within the four corners of the instrument itself’” (quoting Wilson v. Holyfield, 227

Va. 184, 188, 313 S.E.2d 396, 398 (1984)).

Code § 20-109(A) is subject to the statutory proviso, under subsection C, that no order

“shall be entered except in accordance with [the PSA].” Code § 20-109(C). “[T]his requires the

trial judge to examine the parties’ agreement to ascertain whether the relief sought by the moving

party is encompassed within the terms of the agreement.” Rutledge v. Rutledge, 45 Va. App. 56,

63, 608 S.E.2d 504, 508 (2005) (citing White v. White, 257 Va. 139, 144-45, 509 S.E.2d 323,

326 (1999)). Accordingly, a PSA is governed by the same rules of construction applied to other

contracts. Plunkett v. Plunkett, 271 Va. 162, 166, 624 S.E.2d 39, 41 (2006); White, 257 Va. at

144, 509 S.E.2d at 325; Irwin v. Irwin, 47 Va. App. 287, 292-93, 623 S.E.2d 438, 441 (2005).

When applying these rules, the court’s function is to

“construe the contract made by the parties, not to make a contract
for them. The question for the court is what did the parties agree
to as evidenced by their contract. The guiding light in the
construction of a contract is the intention of the parties as
expressed by them in the words they have used, and courts are
bound to say that the parties intended what the written instrument
plainly declares.”

Irwin, 47 Va. App. at 293, 623 S.E.2d at 441 (quoting Wilson, 227 Va. at 187, 313 S.E.2d at

398). That is, “[w]hen a contract is clear and unambiguous, it is the court’s duty to interpret the

contract, as written.” Palmer & Palmer Co., 276 Va. at 289, 662 S.E.2d at 80 (citation omitted);

see PMA Capital Ins. Co. v. US Airways, Inc., 271 Va. 352, 360-61, 626 S.E.2d 369, 374 (2006)

(reversing trial court on contract interpretation after concluding the court “essentially re-wrote

the [contract] and made a new contract” in derogation of its “plain language”).

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 Applying these principles, our Supreme Court and this Court have rejected arguments

that mortgage payments constituted spousal support under the respective settlement agreements

at issue. In White, 257 Va. 139, 509 S.E.2d 325, an agreement of the husband to pay the

mortgage on the marital home conveyed to the wife was ratified by the trial court and

incorporated into the parties’ final divorce decree. The decree stated that “‘[Mr. White] entered

into [the] agreement . . . with respect to maintenance and support.’” Id. at 142, 509 S.E.2d at

324. Three years after the divorce, Ms. White sold the home, at which time the balance due on

the mortgage was paid from the proceeds of the sale. Though Mr. White made the payments to

the mortgagee bank as called for under the agreement until the time of sale of the home,

Ms. White filed a complaint seeking an order requiring Mr. White to show cause why he should

not be held in contempt for failure to then make payments to her in the amount of the mortgage

payments. Id. The trial court ruled in Ms. White’s favor on her petition, holding that the

agreement to pay the mortgage constituted a lump sum award to her payable in installments as

“maintenance and support” under the terms of the divorce decree. Id. at 143, 509 S.E.2d at 325.

The Supreme Court reversed the trial court’s decision, ruling as follows:

The agreement clearly obligates Mr. White to pay the
$30,000 mortgage on the house . . . to [the] Bank in 120 monthly
installments. It contains no provision for Mr. White to make any
payments to Mrs. White. Moreover, and of particular significance
in this case, nothing within the express terms of the agreement
evinces any intent of the parties that Mr. White’s obligation would
survive the satisfaction of the mortgage debt, regardless of the
manner in which that debt was extinguished.
Accordingly, we hold that the agreement obligated
Mr. White to make payments on the mortgage on the marital home
so long as that debt existed, but did not obligate him to pay a fixed
sum to the wife in installments with interest, as she alleged in her
bill of complaint and as the trial court subsequently found in the
show cause hearing.

-5-
Id. at 145, 509 S.E.2d at 326. The Court concluded that “[t]he language of the final decree of

divorce referencing the agreement as ‘an agreement . . . with respect to maintenance and support’

could not, and did not, alter the intent of the parties as expressed in the agreement.” Id.

(emphasis added).

Similarly, in Owney v. Owney, 8 Va. App. 255, 260, 379 S.E.2d 745, 748 (1989), this

Court held that the trial court erred in “characteriz[ing]” as “spousal support” the husband’s

obligation, under the parties’ property settlement agreement, to make mortgage payments on the

marital home. Like the instant case, the parties’ agreement in Owney required that husband

convey his interest in the marital residence to wife and that he assume the mortgage payments on

the first deed of trust held by the mortgagee bank. The agreement also “specifically release[d]

the husband and wife ‘of any claim either might have for alimony or support.’” Id. After

husband defaulted on the mortgage, wife paid off the obligation and petitioned the trial court to

require husband to make the payments to her as spousal support under the parties’ PSA. The

trial court granted wife’s petition as requested. Id. at 257-58, 379 S.E.2d at 747. On appeal, we

reversed the trial court and remanded the case for further consideration of husband’s continuing

liability on the mortgage obligation, if any. In doing so, however, we concluded that the trial

court’s characterization of husband’s third party debt obligation as spousal support, and its award

of those debt payments to wife as support, “controvene[d] the plain language of the [parties’]

agreement.” Id. at 260, 379 S.E.2d at 748.

Here, the parties expressly waived spousal support in paragraph 8 of the PSA, which

provides in its entirety as follows: “8. SPOUSAL SUPPORT: Each party hereby waives any

present or future right to receive any support or maintenance from the other.”

With regard to husband’s mortgage obligation, paragraph 4 of the PSA (under the

heading “DEBTS”) specifically provides, in relevant part, that husband “shall be responsible for

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the payment of . . . [t]he remaining mortgage indebtedness [on the marital residence]”; husband

“shall be solely responsible” for this debt; and husband “shall indemnify and hold the [w]ife

harmless from any and all . . . claims or demands, including, but not limited to, attorney’s fees”

regarding this debt. In conjunction with these provisions, husband further agreed, in paragraph

19, to convey to wife all of his rights, title and interest in the marital residence. Accordingly,

upon entry of the final divorce decree, which incorporated the PSA, husband deeded his

undivided interest in the marital residence to wife, and then refinanced the bank’s mortgage on

the property with a promissory note solely in his name.

Consistent with paragraph 4’s indemnification and hold harmless provisions in favor of

wife regarding husband’s assumption of the mortgage debt, paragraph 5 (under the heading

“CREDIT OF PARTIES”) provides, in part, that “[n]either party shall at any time hereafter . . .

contract any debts, charges or liabilities of any nature whatsoever for which the other party shall

or may become liable to answer.” Furthermore, “[e]ach party covenants and agrees to save and

keep the other party free and harmless from any and all debts, charges and liabilities which may

hereinafter be incurred or contracted by such party.”

Challenging the import of these plainly stated provisions, husband contends the language

in paragraph 9 5 of the PSA characterizing his mortgage payment obligation as “in the nature of

5
Paragraph 9 (under the heading “PAYMENTS IN THE NATURE OF SUPPORT”)
provides, in its entirety, as follows:

Nothwithstanding the provision set forth in [p]aragraph 8, above,
the [h]usband agrees that all of the payments that he is assuming by virtue
of this [a]greement are being made to benefit the [w]ife, and are, therefore,
payments being made “in the nature of support” on the [w]ife’s behalf.
Although they are not direct support payments being made to the [w]ife,
the parties acknowledge and agree that they are, nevertheless, of the type
and nature of payment which would be deemed to be non-dischargeable
by the [h]usband in any proceeding, because of their direct benefit to the
[w]ife. Should the [h]usband ever attempt to discharge these obligations
-7-
support” renders “ineffective” the parties’ express waiver of spousal support in paragraph 8, and

makes the obligation subject to termination under Code § 20-109(A). Settled principles of

contract construction, however, dictate that such was not the parties’ contractual intent.

In giving effect to the intention of the parties “as expressed by them in the words they

have used,” Irwin, 47 Va. App. at 293, 623 S.E.2d at 441 (citation and internal quotation marks

omitted), we are not to treat any word or clause in the PSA “‘as meaningless if a reasonable

meaning can be given to it, and there is a presumption that the parties have not used words

needlessly,’” Dominion Sav. Bank, FSB v. Costello, 257 Va. 413, 417, 512 S.E.2d 564, 567

(1999) (quoting D.C. McClain, Inc. v. Arlington Co., 249 Va. 131, 135-36, 452 S.E.2d 659, 662

(1995)). At the same time, we must construe the contract as a whole. Quadros & Assocs., P.C.

v. City of Hampton, 268 Va. 50, 55, 597 S.E.2d 90, 93 (2004) (citations omitted). In other

words, “the meaning of a contract ‘is to be gathered from all its associated parts assembled as a

unitary expression of the agreement of the parties.’” Sully Station II Community Ass’n, Inc. v.

Dye, 259 Va. 282, 284, 525 S.E.2d 555, 556 (2000) (quoting Berry v. Klinger, 225 Va. 201, 208,

300 S.E.2d 792, 796 (1983)); see Virginian Ry. Co. v. Hood, 152 Va. 254, 258, 146 S.E. 284,

285 (1929) (explaining that a contract’s provisions “are to be harmonized when possible” and

“effect . . . given to every stipulation when it can reasonably be done”).

in such a way as would result in them being imposed upon the [w]ife, not
only does he agree that he shall continue to be liable for them to the
creditor, but he also acknowledges that the [c]ourt may directly impose
any such discharged obligations upon him as support, whether spousal or
child, regardless of any prior waivers, and even if to do so exceeds any
presumptive amounts established by the legislature, to the [w]ife directly,
and also that he will be responsible for the [w]ife’s attorney fees and
[c]ourt costs related to any proceeding which may arise relative to the
matters contained in these [p]aragraphs.

(Emphasis added.)
-8-
 When all of the provisions of the PSA are considered as a whole and read in context, with

reasonable meaning given to each provision, it is evident that paragraph 9 was written with a

certainty intended to accomplish one purpose only: to ensure, to the extent possible, that should

husband ever elect in the future to file a petition for bankruptcy, the mortgage obligation being

assumed by him would not be dischargeable in the bankruptcy proceeding. This prohibition was

made possible because, under bankruptcy law, an obligation found to be “in the nature of

support” is a non-dischargeable debt under 11 U.S.C. § 523(a)(5). See, e.g., Brunson v. Austin

(In re Austin), 271 B.R. 97 (Bankr. E.D. Va. 2001) (explaining multi-factor test for determining

whether a particular obligation is “in the nature of support” under 11 U.S.C. § 523(a)(5)).

Therefore, when placing this prohibition in paragraph 9 immediately after the parties’ express

and definitive waiver of any right to demand or receive spousal support from the other, the

parties surely had no intent to render paragraph 8 meaningless and create an obligation of

spousal support. As used in the PSA, the phrase “in the nature of support” was technical

language from the Bankruptcy Code and limited to its bankruptcy context. Husband’s third party

debt obligation was thus never spousal support as contemplated by Code § 20-109. To hold

otherwise would amount to “alter[ing] the intent of the parties as expressed in [their] agreement.”

White, 257 Va. at 145, 509 S.E.2d at 326. The obligation can still be viewed, however, as “in

the nature of support” so as to render it non-dischargeable under bankruptcy law. “‘[A] debt

could be in the “nature of support” under [11 U.S.C. §] 523(a)(5) even though it would not

legally qualify as alimony or support under state law.’” In re Gianakas, 917 F.2d 759, 762 (3rd

Cir. 1990) (quoting In re Yeates, 807 F.2d 874, 878 (10th Cir. 1986)).

The trial court thus erred in treating husband’s mortgage payment obligation as spousal

support under Code § 20-109, and terminating it on cohabitation grounds. Under the plainly

stated terms of the parties’ PSA, it was an unconditional third party obligation incurred by

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husband as part of the parties’ equitable distribution—with spousal support having been

expressly waived. As such, the trial court had no authority to terminate the obligation.

B. Attorney’s Fees and Costs Pursuant to the PSA

Wife also argues she is entitled under the PSA to an award of attorney’s fees and costs

for this appeal and the proceedings below. Paragraph 24 of the PSA states: “The parties agree

that if one party incurs any expenses in the enforcement of any of the provisions of this

[a]greement, the other shall be responsible for, and shall pay forthwith, any and all expenses

incurred, including, but not limited to, reasonable attorney’s fees.” In ruling in husband’s favor,

the trial court did not award attorney’s fees to wife. Because we reverse the judgment of the trial

court and rule in wife’s favor, we remand the case to the trial court for consideration of wife’s

request for attorney’s fees and costs under the PSA. See Rutledge, 45 Va. App. at 62, 608

S.E.2d at 507 (contractual provisions for attorney fees in PSA are enforceable in same manner as

any other terms); Sanford v. Sanford, 19 Va. App. 241, 249-50, 450 S.E.2d 185, 190 (1994)

(remanding case for award of attorney fees to wife under PSA for enforcement action); see

generally Ulloa v. QSP, Inc., 271 Va. 72, 81-83, 624 S.E.2d 43, 49-50 (2006) (analyzing award

of attorney fees under employment contract).

III. CONCLUSION

For these reasons, we reverse the trial court’s order terminating husband’s mortgage

payment obligation and remand for consideration of wife’s request for attorney’s fees and costs

for this appeal and the proceedings below pursuant to paragraph 24 of the PSA.

Reversed and remanded.

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VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 20th day of May, 2008.

Deborah Ann Stacy, Appellant,

against Record No. 0863-07-3
Circuit Court No. 4-06

William Leslie Stacy, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On May 6, 2008 came the appellant, by counsel, and filed a petition requesting that the

Court set aside the judgment rendered herein on April 22, 2008, and grant a rehearing en banc on

the issues raised in the petition.

On consideration whereof, the petition for rehearing en banc is granted with regard to the

issues raised therein, the mandate entered herein on April 22, 2008 is stayed pending the decision

of the Court en banc, and the appeal is reinstated on the docket of this Court.

Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is

established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the

date of entry of this order; appellee shall file an appellee’s brief upon rehearing en banc within

14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon

rehearing en banc within 14 days of the date on which the appellee’s brief is filed. The appellant

shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion

previously rendered by the
Court in this matter. It is further ordered that the appellant shall file twelve additional copies of

the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 COURT OF APPEALS OF VIRGINIA

Present: Judges McClanahan, Petty and Beales
Argued at Salem, Virginia

DEBORAH ANN STACY
MEMORANDUM OPINION * BY
v. Record No. 0863-07-3 JUDGE WILLIAM G. PETTY
APRIL 22, 2008
WILLIAM LESLIE STACY

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge

Robert J. Breimann (Street Law Firm, on briefs), for appellant.

Gerald L. Gray (Gerald Gray Law Firm, on brief), for appellee.

Deborah Ann Stacy (wife) appeals a final order of the trial court that terminated the

obligation of William Leslie Stacy (husband) to make mortgage payments pursuant to a property

settlement agreement.

On appeal, she presents the following questions: (1) whether the trial court had the authority

to amend or alter the parties’ property settlement agreement (the “agreement”) after it had been

incorporated into the final decree of divorce; (2) whether the trial court erred in construing the

mortgage payments by husband to be alimony or spousal support subject to termination under Code

§ 20-109 6 ; and (3) whether the trial court erred in failing to award wife an interest in husband’s

pension after “amending” the parties’ agreement.

For reasons set forth below, we affirm.

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
6
In wife’s brief, she presented four questions. Questions two and three essentially
presented the same issue. Therefore, we only set forth the issue once as issue two.
 I. BACKGROUND

In January 2001, the trial court entered a final decree of divorce that ratified, confirmed,

approved, and incorporated by reference the parties’ agreement. 7 The agreement gave wife the

marital residence, and Paragraph 4 of the agreement, entitled “Debts,” obligated husband to

continue paying the mortgage payments. According to Paragraph 8 of the agreement, entitled

“Spousal Support,” the parties waived “any present or future right to receive any support or

maintenance from the other.”

Despite the parties’ purported waiver of spousal support, Paragraph 9 of the agreement was

entitled “Payments in the Nature of Support.” It reads as follows:

Notwithstanding the provision set forth in Paragraph 8, above, the
[h]usband agrees that all of the payments that he is assuming by
virtue of this Agreement are being made to benefit the [w]ife, and
are, therefore, payments being made “in the nature of support” on the
[w]ife’s behalf. Although they are not direct support payments being
made to the [w]ife, the parties acknowledge and agree that they are,
nevertheless, of the type and nature of payment which would be
deemed to be non-dischargeable by the [h]usband in any
[b]ankruptcy proceeding, because of their direct benefit to the [w]ife.
Should the [h]usband ever attempt to discharge these obligations in
such a way as would result in them being imposed upon the [w]ife,
not only does he agree that he shall continue to be liable for them to
the creditor, but he also acknowledges that the Court may directly
impose any such discharged obligations upon him as support,
whether spousal or child, regardless of any prior waivers, and even if
to do so exceeds any presumptive amounts established by the
legislature, to the [w]ife directly, and also that he will be responsible
for the [w]ife’s attorney[’s] fees and [c]ourt costs related to any
proceeding which may arise relative to the matters contained in these
proceedings.

In August 2001, wife began living with a man to whom she was not married. Wife admits

that they have cohabited since that time and continue to cohabit in a relationship analogous to

marriage. On January 5, 2006, husband filed a petition to terminate his obligation to make monthly

7
The parties executed the agreement on April 29, 1999.

-2-
mortgage payments pursuant to Code § 20-109(A). On February 20, 2007, the trial court issued a

letter opinion granting husband’s petition to terminate payment of the mortgage obligation pursuant

to Code § 20-109(A). 8 It is from this decision that wife appeals.

II. ANALYSIS

A. Termination of Payments

In its letter opinion, the trial court stated that “neither party argue[d] that the PSA [was]

ambiguous. Finding the PSA is unambiguous the Court has construed the PSA accordingly.”

Thereafter, the trial court accepted husband’s interpretation of the agreement. On appeal, wife

asserts that the trial court erred when it accepted husband’s argument and terminated husband’s duty

to make the mortgage payments because it “‘re-wrote’ the parties’ agreement so as to construe a

mortgage obligation payable by [husband], and recharacterized that note obligation as one of

spousal support or spousal maintenance.”

On appeal, both parties still maintain that the agreement is unambiguous. Husband argues

that despite the waiver of spousal support in Paragraph 8, the language in Paragraph 9 supersedes

that waiver. Therefore, he contends, because all payments by husband are “in the nature of support”

they are subject to termination under Code § 20-109(A). Wife, however, claims that the language

contained in the agreement supports her position that the parties mutually waived all rights to

receive support from one another. Wife asserts that the trial court’s acceptance of husband’s

argument was unreasonable and that the plain meaning of the agreement is only susceptible to

the interpretation that supports her argument and, of necessity, excludes the interpretation argued

by husband and accepted by the trial court.

8
The trial court applied Code § 20-109(A), as amended by the General Assembly in
2001, even though the parties signed the agreement in April 1999.

-3-
 The legal principles governing this case are well established. Although “Code

§ 20-109(A) empowers trial courts to modify a spousal support award, . . . Code § 20-109(C)

expressly limits the court’s authority, . . . according to the terms of a stipulation or contract

signed by the parties.” Blackburn v. Michael, 30 Va. App. 95, 100, 515 S.E.2d 780, 783 (1999).

Likewise, our Supreme Court has held that, when the parties’ agreement has been affirmed,

ratified, and incorporated into the final divorce decree, “‘[Code] § 20-109 restricts the court’s

jurisdiction over awarding “alimony, suit money, or counsel fee” to the terms of the contract.’”

Thomas v. Thomas, 216 Va. 741, 743, 222 S.E.2d 557, 559 (1976) (quoting McLoughlin v.

McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970)). “As these cases hold, the statutory

language of Code § 20-109(C) restricts the judge to decreeing according to the terms of the

agreement.” Rutledge v. Rutledge, 45 Va. App. 56, 61-62, 608 S.E.2d 504, 507 (2005) (internal

quotation marks and citations omitted).

However, in cases involving cohabitation, remarriage, or death, the stipulation or

agreement must expressly preclude termination of the contractual duty of spousal support on

these grounds. Newman v. Newman, 42 Va. App. 557, 570, 593 S.E.2d 533, 540 (2004). If the

agreement fails to expressly preclude termination, the contractual obligation may be terminated.

See Hardesty v. Hardesty, 40 Va. App. 663, 581 S.E.2d 213 (2003) (en banc).

In determining the nature of the payments at issue we are mindful that marital property

settlement agreements are “contracts subject to the same rules of formation, validity, and

interpretation as other contracts.” Bergman v. Bergman, 25 Va. App. 204, 211, 487 S.E.2d 264,

267 (1997) (citing Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986)). “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 (citations

-4-
omitted). “Where there is no ambiguity in the terms of a contract, we must construe it as written,

and we are not at liberty to search for the meaning of the provisions beyond the

pertinent instrument itself.” Id. at 514, 314 S.E.2d at 596 (citations omitted). 9

However, whether a writing is ambiguous is a matter of law, not fact, and subject to our

de novo review. Bergman, 25 Va. App. at 211, 487 S.E.2d at 267 (citing Langman v. Alumni

Ass’n of the Univ. of Virginia, 247 Va. 491, 498, 442 S.E.2d. 669, 674 (1994)). An agreement is

ambiguous when it is objectively reasonable to understand the language in the contract “in more

than one way” or to decide that it “refers to two or more things at once.” Pocahontas Mining

L.L.C. v. Jewell Ridge Coal Corp., 263 Va. 169, 173, 556 S.E.2d 769, 771 (2002). We should

not conclude that a contract is ambiguous “simply because the parties to the contract disagree

about the meaning of its language.” Id. Rather, the task of the reviewing court is “to determine

. . . whether both [of the competing interpretations], though contradictory, are nonetheless

reasonable.” Vilseck v. Vilseck, 45 Va. App. 581, 589, 612 S.E.2d 746, 749-50 (2005).

Finally, on appeal, “[t]he trial court’s judgment is presumed to be correct, and the burden

is on the appellant to present us a sufficient record from which we can determine whether the

lower court has erred.” Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848, 852 (1992)

(citations and internal quotation marks omitted).

9
While the dissent correctly notes that we interpret an unambiguous contract based on
the “words of the contract [contained] within the four corners of the instrument itself,”
Brizzolara v. Sherwood Mem’l Park, Inc., 274 Va. 164, 180, 645 S.E.2d 508, 514 (2007), the
dissent goes on to base its interpretation of the PSA on matters outside those four corners,
drawing inferences from facts contained in the written statement of facts, such as husband’s
refinancing of the mortgage.
Had the trial court determined that the PSA was ambiguous, such extrinsic evidence
indicative of the parties’ intent would have been necessary to the resolution of this case. See
Plunkett v. Plunkett, 271 Va. 162, 169, 624 S.E.2d 39, 43 (2006); cf. Cave Hill Corp v. Hiers,
264 Va. 640, 646, 570 S.E.2d 790, 794 (2002) (extrinsic evidence of parties’ “understanding” of
a contract is inadmissible when the contract is unambiguous). However, the trial court held that
the PSA is unambiguous – a holding that wife does not challenge on appeal. Hence, we
constrain ourselves to examining only the terms of the PSA itself in deciding this case.
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 We find wife’s argument that the agreement can only be read in the manner she proposes

to be unpersuasive. Our review of the language of the agreement leads us to conclude that the

agreement may reasonably be read to support either the interpretation proposed by wife or that

proposed by husband. Paragraph 9 is ambiguous and internally inconsistent with the remainder

of the agreement. The husband’s obligation to continue making mortgage payments, imposed

under a section of the agreement entitled “Debt,” would normally be construed as the equitable

distribution of the marital property, not spousal support. See Code § 20-107.3(E); cf. Oweny v.

Oweny, 8 Va. App. 255, 260, 379 S.E.2d 745, 748 (1989) (reversing when the trial court, relying

on extrinsic evidence of the parties’ intent, characterized mortgage payments as spousal support

in a manner “plainly inconsistent with the contract”). However, Paragraph 9 states that

“[n]otwithstanding . . . Paragraph 8,” the payments are “in the nature of support on behalf of the

wife.” While Paragraph 9 also contains language discussing how these payments should be

construed in the event of a bankruptcy filing by the husband, it does not expressly limit its

application to that contingency. Thus, we conclude the agreement can reasonably be understood

in more than one way. Pocahontas Mining, 263 Va. at 173, 556 S.E.2d at 771.

Having concluded that the agreement is ambiguous, we cannot hold that the trial court

erred in adopting the interpretation it did. 10 On its face, the agreement is equally susceptible to

either of two interpretations. Thus, the conclusion of the trial court that Paragraph 9 converted

all payments under the agreement to spousal support cannot be said to be incorrect; it is just as

10
The dissent characterizes our holding as “accept[ing] the trial court’s construction of
the agreement . . . .” Instead, our holding is quite narrow: we merely hold that, viewing the
language of the PSA, we cannot say that wife’s interpretion of the contract is any more
reasonable than husband’s, which was adopted by the trial court. Accordingly, wife has not met
her burden on appeal of establishing that the trial court’s ruling was in error.

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plausible a conclusion as the alternative. Wife, therefore, has failed to carry her burden to

establish that the trial court erred. 11

Because we conclude that the trial court did not err in construing the mortgage payments

to be spousal support, we must further conclude that the trial court was correct when it

terminated these payments pursuant to Code § 20-109(A).

B. Husband’s Pension

Lastly, wife asserts the trial court erred in failing to award wife an interest in husband’s

pension after modifying the parties’ agreement. On appeal, wife contends “for reasons unknown,

the [trial court] failed to address [her] request.” Because the trial court never ruled on this issue

below, we cannot do so for the first time on appeal. The purpose of the contemporaneous

objection rule is to “afford the trial court the ability to address an issue. If that opportunity is not

presented to the trial court, there is no ruling by the trial court on the issue, and thus no basis for

review or action by this Court on appeal.” Riverside Hospital, Inc. v. Johnson, 272 Va. 518, 526,

636 S.E.2d 416, 420 (2006); see also Riner v. Commonwealth, 268 Va. 296, 325, 601 S.E.2d

555, 571-72 (2004) (holding that failure to request a ruling from the trial court, by itself, waives

the issue on appeal).

III. CONCLUSION

We affirm the trial court’s interpretation of the parties’ agreement.

Affirmed.

11
Because the trial court accepted the parties’ agreement that the PSA was unambiguous,
it did not hear any evidence regarding the intent of the parties. In addition, wife did not argue
either before the trial court or on appeal that the trial court should consider such evidence in the
event it found the agreement to be ambiguous. Therefore, we are precluded from considering the
intent of the parties in construing the contract. Vilseck, 45 Va. App. at 588-91, 612 S.E.2d at
749.

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McClanahan, J., dissenting.

Under Code § 20-109, spousal support is subject to termination by a trial court under

certain circumstances, including the payee’s cohabitation analogous to marriage. Here, however,

the parties, William Leslie Stacy (husband) and Deborah Ann Stacy (wife), expressly waived in

their property settlement agreement (“PSA”) “any present or future right to receive any [spousal]

support or maintenance from the other.” Husband’s obligation was, instead, an unconditional

obligation to pay a debt owed to a third party, i.e., the mortgagee of the marital residence. Thus,

upon entry of the parties’ final decree of divorce, which incorporated the PSA, husband

“refinanced the [b]ank mortgage obligation into a [p]romissory [n]ote solely in his name.” 12

(Emphasis added.) The parties did not characterize this third party obligation as spousal support

in the PSA (which would have been inconsistent with their clear waiver of support in paragraph

8). Rather, the parties characterized the mortgage obligation, pursuant to principles of

bankruptcy law, as “non-dischargeable” debt. The parties further stipulated that husband’s

satisfaction of the obligation was “not direct support payments” to wife, but merely “‘in the

nature of support.’” 13 This characterization of the obligation is not internally inconsistent with

the remainder of the agreement. It is, in fact, further evidence that the mortgage payment was

not spousal support but a continuing and unconditional third party obligation of husband. See

Owney v. Owney, 8 Va. App. 255, 260, 379 S.E.2d 745, 748 (1989) (holding trial court erred in

12
Parties’ written statement of facts, paragraph 4, filed pursuant to Rule 5A:8. Contrary
to the majority’s assertion, this factual statement is necessarily relevant because it was this third
party debt obligation that the trial court terminated—the very ruling that is the issue in this case.
This factual statement, however, is not critical to my reading of the PSA within its “four
corners.” The statement simply documents husband’s action taken pursuant to the explicit terms
of the agreement upon its execution.
13
As explained, supra, under bankruptcy law, obligations “in the nature of support” are
non-dischargeable, and may be deemed as such even if the obligation is not found to be spousal
support under state law.

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treating husband’s third party debt obligation as spousal support under property settlement

agreement).

Accordingly, I would hold that, as both parties assert, the agreement is not ambiguous;

husband’s third party debt obligation is not spousal support under Code § 20-109, and the trial

court thus had no authority, as a matter of law, to terminate this obligation—a debt husband

owed to an entity that is not even a party to this action. See Brizzolara v. Sherwood Memorial

Park, Inc., 274 Va. 164, 180, 645 S.E.2d 508, 514 (2007) (“Where the judgment of the trial court

is based upon its interpretation of written documents, we review the issue de novo because we

have an equal opportunity to consider the words of the contract within the four corners of the

instrument itself.” (citations, internal quotation marks, and internal brackets omitted)). 14

Therefore, I respectfully dissent.

In Owney, 8 Va. App. at 260, 379 S.E.2d at 748, this Court held that the trial court erred

in “characteriz[ing]” as “spousal support” the husband’s obligation, under the parties’ property

settlement agreement, to make mortgage payments on the marital residence. Like the instant

case, the parties’ agreement in Owney required that husband convey his interest in the marital

residence to wife and that he assume the mortgage payments on the first deed of trust held by the

Farmers Home Administration. The agreement also “specifically release[d] the husband and

wife ‘of any claim either might have for alimony or support.’” Id. In reversing the trial court,

we concluded that the trial court’s characterization of husband’s third party debt obligation as

spousal support, and award of those debt payments to wife as support, “controvene[d] the plain

language of the agreement.” Id.

14
See also Virginia Elec. & Power Co. v. Northern Virginia Reg’l Park Auth., 270 Va.
309, 315, 618 S.E.2d 323, 326 (2005) (“Whether a [contract] is ambiguous is a question of law
. . . . As such, we review the judgment of the trial court de novo.” (citations omitted)); Perel v.
Brannan, 267 Va. 691, 698, 594 S.E.2d 899, 903 (2004) (“[W]e review the trial court’s
interpretation of covenants and other written documents de novo.”).
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 In the instant case, paragraph 4 of the parties’ PSA (under the heading “Debts”)

specifically provides, in relevant part, that husband “shall be responsible for the payment of . . .

[t]he remaining mortgage indebtedness [on the marital residence]”; husband “shall be solely

responsible” for this debt; and husband “shall indemnify and hold the [w]ife harmless from any

and all . . . claims or demands, including, but not limited to, attorney’s fees” regarding this debt.

In conjunction with these provisions, husband further agrees, in paragraph 19, to convey to wife

all of his rights, title and interest in the marital residence. Accordingly, upon entry of the final

divorce decree, which incorporated the PSA, husband deeded his undivided interest in the

marital residence to wife, and then refinanced the bank’s mortgage on the property with a

promissory note solely in his name.

Consistent with husband’s indemnification and hold harmless provisions in favor of wife

regarding his assumption of the mortgage debt in paragraph 4, paragraph 5 (under the heading

“Credit of Parties”) provides, in part, that “[n]either party shall at any time hereafter . . . contract

any debts, charges or liabilities of any nature whatsoever for which the other party shall or may

become liable to answer.” Furthermore, “[e]ach party covenants and agrees to save and keep the

other party free and harmless from any and all debts, charges and liabilities which may

hereinafter be incurred or contracted by such party.” As explained above, husband refinanced

the bank mortgage obligation into a promissory note solely in his name after the PSA was

executed and incorporated into the final decree of divorce.

The majority recognizes that, but for paragraph 9 of the PSA, 15 husband’s above-stated

third party debt obligation, governed by paragraphs 4 and 5, “would normally be construed as

15
Paragraph 9 (under the heading “Payments in the Nature of Support”) provides, in its
entirety, as follows:

Nothwithstanding the provision set forth in [p]aragraph 8, above,
the [h]usband agrees that all of the payments that he is assuming by virtue
- 10 -
equitable distribution of the marital property, not spousal support.” This interpretation, the

majority further acknowledges, is “reinforced by the provision waiving spousal support” in

paragraph 8, which (under the heading “Spousal Support”) provides in unequivocal terms:

“Each party hereby waives any present or future right to receive any support or maintenance

from the other.” But then, without due regard to context, the majority concludes that the parties’

characterization of husband’s debt obligation as “‘in the nature of support,’” set forth in

paragraph 9, is ambiguous, accepts the trial court’s construction of the agreement, and thus

affirms the trial court in holding that the parties intended the husband’s debt obligation to be

spousal support for purposes of Code § 20-109. In doing so, the majority implicitly holds, as

husband argues, that the parties’ waiver of marital support in paragraph 8 is rendered

meaningless by the language in paragraph 9. Well-established principles regarding construction

of contracts, however, which provide the necessary framework for a correct reading of the PSA,

dictate that such was not the parties’ intent.

of this [a]greement are being made to benefit the [w]ife, and are, therefore,
payments being made “in the nature of support” on the [w]ife’s behalf.
Although they are not direct support payments being made to the [w]ife,
the parties acknowledge and agree that they are, nevertheless, of the type
and nature of payment which would be deemed to be non-dischargeable
by the [h]usband in any proceeding, because of their direct benefit to the
[w]ife. Should the [h]usband ever attempt to discharge these obligations
in such a way as would result in them being imposed upon the [w]ife, not
only does he agree that he shall continue to be liable for them to the
creditor, but he also acknowledges that the [c]ourt may directly impose
any such discharged obligations upon him as support, whether spousal or
child, regardless of any prior waivers, and even if to do so exceeds any
presumptive amounts established by the legislature, to the [w]ife directly,
and also that he will be responsible for the [w]ife’s attorney fees and
[c]ourt costs related to any proceeding which may arise relative to the
matters contained in these [p]aragaphs.

(Emphasis added.)

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 The PSA is subject to the same rules of construction as other contracts. Irwin v. Irwin, 47

Va. App. 287, 292-93, 623 S.E.2d 438, 441 (2005) (citation omitted). Our purpose in construing

the agreement is, therefore, to effectuate the “intention of the parties as expressed by them in the

words they have used.” Quadros & Assocs., P.C. v. City of Hampton, 268 Va. 50, 54, 597

S.E.2d 90, 93 (2004) (citations and internal quotation marks omitted). We are not to treat any

word or clause “‘as meaningless if a reasonable meaning can be given to it, and there is a

presumption that the parties have not used words needlessly.’” Dominion Savings Bank v.

Costello, 257 Va. 413, 417, 512 S.E.2d 564, 567 (1999) (quoting D.C. McClain, Inc. v.

Arlington Co., 249 Va. 131, 135-36, 452 S.E.2d 659, 662 (1995)). At the same time, we must

construe the contract as a whole. Quadros & Assocs., 268 Va. at 55, 597 S.E.2d at 93 (citations

omitted). In other words, “the meaning of a contract ‘is to be gathered from all its associated

parts assembled as a unitary expression of the agreement of the parties.’” Sully Station II

Community Assoc., Inc. v. Dye, 259 Va. 282, 284, 525 S.E.2d 555, 556 (2000) (quoting Berry v.

Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983)); see Virginian Railway Co., 152 Va.

254, 258, 146 S.E. 284, 285 (1929) (explaining that a contract’s provisions “are to be

harmonized when possible” and “effect . . . given to every stipulation when it can reasonably be

done”).

When all of the provisions of the PSA are considered as a whole and read in context, with

reasonable meaning given to each provision, it is evident that paragraph 9 was written with a

certainty intended to accomplish one purpose only: to ensure, to the extent possible, that should

husband ever elect in the future to file a petition for bankruptcy, the mortgage obligation being

assumed by him would not be dischargeable in the bankruptcy proceeding. This prohibition was

made possible because, under bankruptcy law, an obligation found to be “in the nature of

support” is a non-dischargeable debt under 11 U.S.C. § 523(a)(5). See, e.g., In re Austin, 271

- 12 -
B.R. 97 (Bankr. E.D. Va. 2001) (explaining multi-factor test for determining whether a particular

obligation is “in the nature of support” under 11 U.S.C. § 523(a)(5)); see also Marvin v. Marvin,

__ Va. App. __, __ S.E.2d __ (Apr. 22, 2008) (holding that attorney’s fees awarded in

conjunction with enforcement of child support were “in the nature of support” and thus

non-dischargeable under 11 U.S.C. § 523(a)(5)). Therefore, when placing this prohibition in

paragraph 9 immediately after the parties’ express and definitive waiver of any right to demand

or receive spousal support from the other, the parties surely had no intent to render paragraph 8

meaningless and create an obligation of spousal support. The fact, however, that husband’s third

party debt obligation was never spousal support as contemplated by Code § 20-109 does not

negate the fact that the obligation could be viewed as “in the nature of support” so as to render

the obligation non-dischargeable under bankruptcy law. “‘[A] debt could be in the “nature of

support” under [11 U.S.C. §] 523(a)(5) even though it would not legally qualify as alimony or

support under state law.’” In re Gianakas, 917 F.2d 759, 762 (3rd Cir. 1990) (quoting In re

Yeates, 807 F.2d 874, 878 (10th Cir. 1986)).

Apart from considerations of bankruptcy law, I find no authority for a trial court to

convert a third party debt obligation to spousal support, which debt obligation was owed to an

entity that is not even a party to the action, and then terminate the obligation on the purported

authority of Code § 20-109. In short, because husband’s third party debt obligation was not

spousal support, Code § 20-109 provided no basis to terminate it. Cf. Hardesty v. Hardesty, 40

Va. App. 663, 581 S.E.2d 213 (2003) (en banc) (holding Code § 20-109 required termination of

former wife’s spousal support under the parties’ property settlement agreement upon her

remarriage, where former husband was, in fact, making spousal support payments to former

wife, as contemplated under the statute).

For these reasons, I would reverse the decision of the trial court, and, therefore, dissent.

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