Linda S. Miller v. Chester E. Miller

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Beales
Argued at Alexandria, Virginia

CHESTER E. MILLER

v. Record No. 2223-06-4
MEMORANDUM OPINION* BY
LINDA S. MILLER JUDGE RANDOLPH A. BEALES
SEPTEMBER 11, 2007
LINDA S. MILLER

v. Record No. 2354-06-4

CHESTER E. MILLER

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge

Catherine S. Croft (Farrell & Croft, P.C., on briefs), for Chester E.
Miller.

Elizabeth Munro von Keller (Arthur Von Keller IV, on briefs), for
Linda S. Miller.

Chester E. Miller (husband) appeals from a final decree of divorce from Linda S. Miller

(wife) entered by the Prince William County Circuit Court on August 16, 2006, and from the

accompanying Court Order Acceptable for Processing (COAP) that the trial court entered on the

same day as the final decree. Wife also appeals from the final decree. We have consolidated their

appeals and address their contentions here.

Husband argues that the trial court erred in finding the antenuptial agreement between the

parties was ambiguous and accepting parol evidence on the intentions of the parties. He argues this

error was compounded when the court interpreted the antenuptial agreement as allowing distribution

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
of his pension and allowing an award of spousal support to wife. He also claims the trial court erred

when it included language in the COAP allowing wife to transfer her interest in the pension to an

alternate payee should she predecease husband. In her appeal, wife argues that the trial court erred

in finding the antenuptial agreement remained valid, even though the court also found the parties

mutually intended to revoke the agreement. Wife claims she relied to her detriment on the

revocation of the agreement. For the reasons noted herein, we affirm the trial court’s rulings.

I. Background

Prior to their marriage in 1987, the parties signed an antenuptial agreement in wife’s

home country of Canada, but stipulated that the laws of the Commonwealth of Virginia would

govern their contract. Several months after the birth of their first child in 1988, the parties

agreed that they no longer needed the antenuptial agreement and threw the only known copy of it

into a fire. After the parties separated in 2004, wife discovered that her mother had another copy

of the antenuptial agreement. The parties agree that this newly discovered document is an exact

copy of the original agreement.

Paragraph 1 of the antenuptial agreement sets the term of the contract at “199 years from

the date hereof or until the parties herein shall mutually agree to its termination.” Paragraph 2 of

the agreement states:

Each party shall during his or her lifetime keep and retain sole
ownership, control and enjoyment of all property, real and personal
now owned or hereafter acquired by him or her, free and clear of
any claim by the other. Complete lists of [husband’s] and [wife’s]
personal property are attached as Exhibits A and B respectively.1

1
The exhibits list several items of personal property, specific retirement accounts, and
proceeds from the sales of their separate homes. The parties agree that these listed values
constitute separate property and do not argue on appeal that the trial court erred in distributing
these amounts.

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In paragraph 9, the agreement states:

In the event of dissolution of the contemplated marriage between
[wife] and [husband], these sums ([wife $10,032.00 Canadian and
[husband] $48,876.00 American) shall be returned free and clear in
whole or proportionately prior to any equitable distribution of
marital property, after calculating the amounts in a common
currency at the rate of exchange at the time of calculation.

Paragraph 10 provides, “This agreement contains the entire understanding of the parties. There

are no representations, warranties, promises, covenants or undertakings, oral or otherwise, other

than those expressly set forth herein.” The agreement does not contain a section of definitions

and does not define marital property or separate property. The agreement does not mention

spousal support or alimony.

The trial court found that, although the parties mutually intended to revoke the

antenuptial agreement when they threw it into the fire, the agreement was still binding because

the revocation was not in writing as required by Code § 20-153. The Court then found the

antenuptial agreement was ambiguous and accepted parol evidence.

Wife testified that the pensions existing at the time of the marriage were separate

property under the agreement, but she did not intend to waive any rights to future accruals of

pensions when she signed the agreement. She also testified that the agreement was not intended

to prevent her from developing an interest in property acquired during the marriage, and she did

not think her husband interpreted the agreement that way until divorce proceedings started. The

agreement, according to wife’s testimony, was intended only to protect the parties’ interests in

the property that they owned prior to the marriage and did not address any other issues.

During initial questioning by his counsel, husband essentially agreed that the antenuptial

agreement covered only property existing when the parties were wed. Husband later said he

thought all the property that he bought during the marriage would be his separate property. The

trial court found the agreement was not intended to cover property acquired during the marriage,
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but instead was designed to protect the assets that the parties owned before the marriage. The

trial court also found the agreement did not address spousal support.

As part of the equitable distribution award, the trial court awarded a portion of husband’s

Federal Employees Retirement System (FERS) pension, acquired after the marriage, to wife.

The COAP entered for submission to the federal government included a provision that allowed

wife, in the event of her death, to award her share of the pension to the parties’ children.

Husband was ordered to pay $1,300 per month in spousal support to wife for four years,

then $500 per month for an additional four and a half years.

II. Analysis

A. Enforcement of the Antenuptial Agreement

Wife argues that the parties effectively revoked the antenuptial agreement. Alternatively,

she argues that equitable estoppel prevented husband from asking the trial court to enforce the

agreement. Husband argues that they did not revoke the agreement and estoppel does not apply.

At the time that the parties signed the antenuptial agreement (and still today) Code

§ 20-153 stated: “After marriage, a premarital agreement may be amended or revoked only by a

written agreement signed by the parties.” Wife acknowledges that the parties did not revoke the

agreement in writing. However, she contends Code § 20-150(8) permits parties to contract

regarding “[a]ny other matter, including their personal rights and obligations, not in violation of

public policy or a statute imposing a criminal penalty.” She argues that the parties included in

their agreement a provision allowing the parties to “mutually agree to its termination” and,

thereby, they contracted to permit revocation of the antenuptial agreement without another

written agreement. Alternatively, wife argues that she relied to her detriment on the

representation of husband that the agreement was revoked, so husband should be estopped from

arguing for enforcement of the antenuptial agreement.

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 The issues presented here involve questions of both law and fact. We defer to the trial

court’s decisions on questions of fact, such as whether the parties intended to revoke the

agreement, but review de novo questions of law, such as the interpretation of the code sections

governing antenuptial agreements. See Gaffney v. Gaffney, 45 Va. App. 655, 665, 613 S.E.2d

471, 476 (2005).

1. Revocation of an Antenuptial Agreement

Code § 20-153 clearly and specifically states that “[a]fter marriage, a premarital

agreement may be amended or revoked only by a written agreement signed by the parties.”

(Emphasis added.) As Virginia law governs the antenuptial agreement here, this statute’s

mandates are part of that contract. See Harbor Gate Owners’ Ass’n v. Berg, 232 Va. 98, 106,

348 S.E.2d 252, 257 (1986) (“Where a written contract is silent on a matter controlled by statute,

the statutory requirement becomes an unwritten term of the contract implied in law.”). As the

parties did not execute a signed, written document revoking the 1987 agreement, that original

agreement remained in effect.

Wife acknowledges that Code § 20-153 generally applies to all antenuptial agreements.

However, she argues that, as permitted by Code § 20-150(8), the parties included in Paragraph 1

of the antenuptial agreement an enforceable provision that allowed the parties to “mutually agree

to its termination” without a writing. We disagree.

Code § 20-150 lists the matters that parties may address in antenuptial agreements.

Subsection 8 allows such agreements to address “[a]ny other matter, including their personal

rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.”

We find that this subsection does not permit parties to include provisions in abrogation of

requirements of Code § 20-153.

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 First, Code § 20-153 specifically states that premarital agreements can only be revoked in

writing. This statute includes no exceptions. We “must accept its plain meaning.” Perez v.

Capital One Bank, 258 Va. 612, 616, 522 S.E.2d 874, 876 (1999). Given this specific wording,

in contrast to the general wording of Code § 20-150(8), we find the specific wording of Code

§ 20-153 must control and parties may not deviate from its restrictions.

Second, Paragraph 1 of the parties’ agreement did not specifically authorize a method of

revocation other than in writing. It simply says that they can mutually agree to revoke the

agreement. Paragraph 1 addresses when the parties can revoke the agreement, but it does not

address how the parties can effect and memorialize their revocation other than as required by

Code § 20-153. Cf. Hardesty v. Hardesty, 40 Va. App. 663, 581 S.E.2d 213 (2003) (en banc)

(finding an agreement must specifically and clearly state the intention of the parties to abrogate

the specific dictates of the Code regarding termination of spousal support).

The trial court found “the parties clearly . . . had an intent to revoke [the agreement], but

they did not effectively do that.” The trial court did not err in reaching this conclusion.

2. Estoppel

Wife argues that, if the agreement was not effectively revoked, equitable estoppel should

preclude husband from arguing for enforcement of the agreement.2

The principle of equitable estoppel applies to antenuptial agreements. Code § 20-152

(“[The] equitable defenses limiting the time for enforcement, including laches and estoppel, are

available to either party.”). “[T]he party who relies upon estoppel must prove each element by

clear, precise, and unequivocal evidence. Because the doctrine of estoppel prevents the showing

2
The trial court made no explicit findings on this issue, as wife admits in her reply brief.
However, wife made this argument to the trial court, and the court then found the agreement was
enforceable. We therefore presume that the trial court found equitable estoppel did not prevent
enforcement of the agreement.

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of the truth, it is applied rarely and only from necessity.” Princess Anne Hills v. Susan Constant

Real Estate, 243 Va. 53, 59, 413 S.E.2d 599, 603 (1992) (citations omitted).

“Elements necessary to establish equitable estoppel, absent a showing of fraud and

deception, are a representation, reliance, a change of position, and detriment.” T. v. T., 216 Va.

867, 872-73, 224 S.E.2d 148, 152 (1976); see Webb v. Webb, 16 Va. App. 486, 494-95, 431

S.E.2d 55, 61 (1993) (noting that the elements of estoppel are a representation, reliance, change

of position, and detriment). The parties agree that these elements control here, but disagree on

whether the evidence was sufficient to establish these elements. As this is an evidentiary

question, this Court reviews the record in the light most favorable to husband, who prevailed on

this issue before the trial court. See id. at 491, 431 S.E.2d at 59; Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

The parties believed they had destroyed the only copy of their antenuptial agreement and

thereby revoked it. Wife and husband both made this representation, either mutually or at wife’s

instigation. Husband did not induce wife with his representations – in fact, she suggested that

they throw the document into the fire. The evidence more strongly suggests she represented to

him that the agreement was revoked. We see little evidence of a representation by husband to

wife.

In addition to representation, a party who argues for estoppel must prove that she made a

change or stopped acting based on the representation. See Emrich v. Emrich, 9 Va. App. 288,

293-94, 387 S.E.2d 274, 276-77 (1989) (finding the trial court erred when it refused to allow

wife to file a late answer to husband’s petition for divorce, as husband had represented to wife

that she did not need to answer the petition because they were reconciled, he had moved in with

her, and he told her that he was withdrawing the petition). Nothing in this record suggests wife

took any action or stopped any action in reliance on her belief that the contract no longer existed.

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 Wife argues on appeal that she would not have agreed to refinance the home if she had

known that the agreement was still valid. However, she did not testify to that fact. Wife did

testify that she would not have married husband and moved to Virginia if the antenuptial

agreement had meant she “would acquire absolutely no interest in any asset.” She testified that

the home was refinanced “six or seven” times, and she said the funds generated by these

refinancings were used to pay off debt. However, she did not testify that she agreed to refinance

the home because the parties threw the agreement into the fire. No other evidence was presented

that she agreed to refinance the house because she thought the antenuptial agreement was

revoked.3 On appeal, wife does not reference any place in the trial record where she presented

evidence to prove reliance.

We find the evidence was insufficient to support wife’s claim that husband was estopped

from enforcing the antenuptial agreement. The trial court did not err in failing to apply equitable

estoppel here.

B. Interpretation of the Antenuptial Agreement4

The standard for review of antenuptial agreements is well established:

“Antenuptial agreements, like marital property settlements, are
contracts subject to the rules of construction applicable to contracts

3
Wife’s attorney did argue to the trial court that wife only agreed to the refinancings
because she believed the agreement was revoked, but counsel’s argument does not constitute
evidence. See Cook v. Hayden, 183 Va. 203, 226, 31 S.E.2d 625, 634 (1944) (noting that a trial
court properly did not consider counsel’s representations as evidence); McCoy v.
Commonwealth, 125 Va. 771, 778, 99 S.E. 644, 646 (1919) (finding that counsel’s argument to a
jury was “unsupported by any evidence” and, therefore, improper). On appeal, wife’s attorney
argued that wife would have returned to the workforce, and suggests that she would not have had
a second child, if she believed that the antenuptial agreement was still in effect. Again, wife did
not provide any testimony regarding how her belief that the agreement was revoked changed her
behavior, and an attorney’s representations on appeal do not provide an adequate substitute for
evidence presented to a trial court.
4
Neither party argues that the agreement is ambiguous regarding pre-marital property,
and the issues on appeal do not relate to division of those assets.

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 generally, including the application of the plain meaning of
unambiguous contractual terms.” Pysell v. Keck, 263 Va. 457,
460, 559 S.E.2d 677, 678 (2002). “When a written marital
agreement is presented, a court applies the same rules of formation,
validity and interpretation used in contract law, except where
specified by the Code.” Shenk v. Shenk, 39 Va. App. 161, 170,
571 S.E.2d 896, 901 (2002) (internal citations and quotations
omitted).

King v. King, 40 Va. App. 200, 206, 578 S.E.2d 806, 809 (2003). On appeal, we review de novo

a trial court’s rulings on the ambiguity of a contract, but, if reached, we defer to the factual

findings of the trial court regarding the intentions of the parties. Vilseck v. Vilseck, 45 Va. App.

581, 588 n.3, 612 S.E.2d 746, 749 n.3 (2005) (“Absent the necessity to consider extrinsic

evidence, ‘appellate courts review trial court interpretations of contractual texts de novo because

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

provision.’ Smith [v. Smith], 43 Va. App. [279,] 288 n.2, 597 S.E.2d [250,] 255 n.2 [(2004)]

(citations and internal quotation marks omitted).”). After reviewing the text of the agreement,

we find the trial court did not err in finding that the contract was ambiguous nor in concluding

that the contract did not address the division of property acquired during the marriage.

“We adhere to the ‘plain meaning’ rule in Virginia: ‘Where an agreement is complete on

its face, is plain and unambiguous in its terms, the court is not at liberty to search for its meaning

beyond the instrument itself.’” Berry v. Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983)

(quoting Globe Iron Constr. Co. v. First Nat’l Bank of Boston, 205 Va. 841, 848, 140 S.E.2d

629, 633 (1965)). “A contract term is not ambiguous merely because the parties disagree as to

the term’s meaning.” Bergman v. Bergman, 25 Va. App. 204, 211, 487 S.E.2d 264, 267 (1997).

However, when a contract is ambiguous, the Court will look to
parol evidence in order to determine the intent of the parties.
Aetna Cas. and Sur. Co. v. Fireguard Corp., 249 Va. 209, 215, 455
S.E.2d 229, 232 (1995). Contract language is ambiguous when “it
may be understood in more than one way or when it refers to two

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 or more things at the same time.” Granite State Ins. Co. v.
Bottoms, 243 Va. 228, 234, 415 S.E.2d 131, 134 (1992).

Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 632, 561 S.E.2d 663, 667 (2002).

Paragraph 2 of the antenuptial agreement states:

Each party shall during his or her lifetime keep and retain sole
ownership, control and enjoyment of all property, real and personal
now owned or hereafter acquired by him or her, free and clear of
any claim by the other. Complete lists of [husband’s] and [wife’s]
personal property are attached as Exhibits A and B respectively.

Paragraph 9 of the antenuptial agreement provides that, in the event of a divorce,

these sums ([wife] $10,032.00 Canadian and [husband] $48,876.00
American) shall be returned free and clear in whole or
proportionately prior to any equitable distribution of marital
property, after calculating the amounts in a common currency at
the rate of exchange at the time of calculation.

The amounts in Paragraph 9 correspond to amounts listed in Exhibits A and B. No paragraph in

the agreement defines separate property or marital property, nor does any paragraph designate

income as separate, as opposed to marital, property. Paragraph 10 states, “This agreement

contains the entire understanding of the parties. There are no representations, warranties,

promises, covenants or undertakings, oral or otherwise, other than those expressly set forth

herein.” The agreement does not mention spousal support or alimony.

Husband argues that Paragraph 2 clearly states that any property acquired during the

marriage shall be treated as separate property unless titled in the name of both parties.

Therefore, he claims, the only property subject to equitable distribution is the marital home,

which is jointly titled. He also argues, as the antenuptial agreement defines income as separate

property and does not specifically mention spousal support, the agreement clearly precludes an

award of spousal support. We disagree with husband’s interpretation of the antenuptial

agreement.

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 1. Property Division

Paragraph 2 says that the parties “keep and retain sole ownership” of property that either

one of them owned when the agreement was signed and of property acquired “hereafter.”

(Emphasis added.) Husband argues this paragraph means that any property that either party

acquired during the marriage is presumedly separate property, not subject to equitable

distribution. We disagree.

As the agreement does not define its terms, we must turn to the generally accepted

definitions in Virginia, the law governing this contract. Virginia law starts with the well-settled

presumption that property acquired during a marriage is acquired by both parties and is marital

property. Smith, 43 Va. App. at 286-87, 597 S.E.2d at 254; Rahbaran v. Rahbaran, 26 Va. App.

195, 209, 494 S.E.2d 135, 141 (1997); see Code § 20-107.3(A). Therefore, generally, property

acquired during the marriage is not the “sole” property of one spouse, so neither spouse can

“keep or retain sole ownership,” even if all purchases are financed with the salary of one spouse.

As this Court explained in Robinson v. Robinson, 46 Va. App. 652, 670 n.17, 621 S.E.2d 147,

156 n.17 (2005) (en banc):

In most cases, the money earned by the parties during the marriage
constitutes marital property, and the assets purchased with that
income are also marital property. See Code § 20-107.3(A)(2)
(defining “marital property” as, inter alia, all property “acquired
by each party during the marriage which is not separate property”).
Regardless of whether the wife worked outside the home, she
would therefore be entitled to a share of those assets. See Code
§ 20-107.3(E).

However, spouses can acquire separate or “sole” property after marriage, for example, through

inheritance or a gift from a third party. See Code § 20-107.3(A)(1); Robinson, 46 Va. App. at

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663, 621 S.E.2d at 153 (noting that the income from husband’s trust, which he inherited from his

mother, was separate property).5

The antenuptial agreement does not change these basic definitions, although husband

argues otherwise. In Vilseck, 45 Va. App. 581, 612 S.E.2d 746, Mr. Vilseck also argued that his

antenuptial agreement defined all property as separate property, and, therefore, none of the

property was subject to equitable distribution. The agreement in Vilseck defined “separate

property” as “all real and personal property of each of the parties and all rights and interests in

such property of whatever kind and wherever located, regardless of whether such property is

now owned or hereafter acquired.” Id. at 585, 612 S.E.2d at 748. Contrast King v. King, 40

Va. App. 200, 578 S.E.2d 806 (2003) (noting the agreement specifically defined “separate” and

specifically defined future income as separate property). This Court explained in Vilseck:

In this case, we find the plain meaning of the agreement is not
nearly as plain as either party asserts. To begin with, the definition
of “Separate Property” in paragraph 2(B) does not say (as Vilseck
translates it to say) that all property separately acquired and titled
during marriage must necessarily be placed outside the reach of the
equitable distribution statute. The actual text says considerably
less than that. To be sure, the ostensible definition involves
somewhat of a tautology, for it states “the term ‘Separate Property’
shall mean all real and personal property of each of the parties” --
which is little more than saying separate property is property of
each separate party.

True enough, the “property of each” tautology needs no
explanation for property owned separately prior to the marriage.
Her car is hers, his boat is his, and so on. After marriage, however,
it is not so easy to distinguish between the two. But that is exactly
what the remainder of the sentence requires, for it adds the
possibility that, whatever contractual “Separate Property” may be,
it can be property either “now owned or hereafter acquired.”

5
Husband argues that Code § 20-148, because it includes “income” in the definition of
“property,” requires that courts interpret the term “property” in antenuptial agreements as
synonymous with “separate property.” However, Code § 20-148 does not define separate
property, but instead defines only the term “property” generally. Under Virginia law, “property”
can refer to either marital or separate property. Code § 20-107.3. Therefore, Code § 20-148
does not control the determination of whether income is separate or marital.
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 On brief, Vilseck fills in this ambiguity with the caveat that
contractual “Separate Property” acquired during marriage applies
only to property separately acquired and titled. At oral argument,
Vilseck added that fungible salary income from his medical
practice, though not subject to a document of title, would be
“Separate Property” as soon as he placed it in his separate
checking account. That assertion, which we need not dwell on,
merely begs the question. Suffice it to say, nothing in the
contractual text states that separately titled property has a
contractual immunity from equitable distribution.

Vilseck, 45 Va. App. at 589-90, 612 S.E.2d at 750.

As in Vilseck, the agreement here does not adequately define which property is excluded

from equitable distribution. Husband argues that the agreement clearly gives him all the

property he bought during the marriage, but the document does not contain a definition

supporting this interpretation of the contract. The agreement does not contain a provision

defining “sole” or separate property as any property that is not jointly titled. Therefore,

husband’s interpretation of the contract’s language is not grounded in the four corners of the

agreement.

The only clear provisions in this document relate to the property listed in Appendix A

and Appendix B. As the parties were expecting to commingle their separate funds to purchase

the marital home, which could have converted those separate assets into marital property, the

agreement protected the parties’ rights to those separate assets. See Code § 20-107.3(A)(3).

Regarding property acquired after the marriage, the agreement is not clear. The trial court did

not err in finding the agreement inconsistent and needing interpretation. Therefore, the parol

evidence was properly admitted and considered.

Wife testified the agreement was “just to protect what he was bringing in and what I was

bringing in.” She also testified that she did not believe the agreement waived any interest in

pensions or retirement accounts that husband might earn through his future employment.

Husband’s testimony initially suggested he also thought that the agreement covered only
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pre-marital property, plus any separate property acquired after marriage, e.g., through inheritance

or gift. The trial court found husband’s later testimony, which contradicted his initial testimony,

was not credible and concluded that the agreement addressed only the assets existing prior to the

marriage. We must defer to these findings. See Strickland v. Barnes, 209 Va. 438, 445, 164

S.E.2d 768, 773 (1968) (“‘Where . . . the meaning of a writing is uncertain or ambiguous and

parol evidence is introduced in aid of its interpretation, the question of its meaning should be left

to the . . . [trier of fact]’.” (quoting Portsmouth Gas Co. v. Shebar, 209 Va. 250, 258, 163 S.E.2d

205, 211 (1968))).

The trial court did not err in accepting parol evidence nor in determining that the

antenuptial agreement addressed only the division of pre-marital assets.

2. Spousal Support

Husband also argues that, as the agreement does not mention spousal support, the

agreement clearly precludes an award of support to wife. He contends that Paragraph 2 and the

preamble support this interpretation of the antenuptial agreement.

The preamble says that the parties

desire to fix and determine by antenuptial agreement the rights and
claims that will accrue to each of them in the estate and property of
the other by reason of marriage, and to accept the provisions of this
agreement in lieu of and in full discharge, settlement, and
satisfaction of all such rights and claims.

The preamble does not clearly say that it addresses all rights and claims, but “all such rights and

claims.” The only rights or claims mentioned in the agreement are pre-existing property rights,

not the entitlement to spousal support. Although preambles can assist a court in its review of a

contract, preambles such as the one here are not helpful and are not binding. See Vilseck, 45

Va. App. at 589 n.4, 612 S.E.2d at 749 n.4. The agreement does not address all of the possible

rights of spouses under Virginia law, only issues related to pre-marital property.

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 At best, the agreement is silent regarding spousal support. The issue is not addressed

within the four corners of the document. Paragraph 10 explicitly states that “[t]here are no

representations, warranties, promises, covenants, or undertakings” other than the express

provisions in the agreement. Therefore, only the explicit provisions found in the antenuptial

contract are part of the agreement, and the parties do not have any other issues on which they

agreed to contract. As the Supreme Court explained in Davis v. Davis, 239 Va. 657, 661, 391

S.E.2d 255, 257 (1990),6

Had the parties intended their contract to apply to their
spousal-support rights, they could have included express covenants
to that effect. They did not, and we must construe and apply the
contract as it was written. Accordingly, we hold that the
antenuptial agreement did not contemplate surrender of the parties’
respective rights to claim and to prove entitlement to spousal
support . . . .

Given the inexact language and the failure to mention spousal support, the antenuptial agreement

here is, at best, ambiguous on the issue of support. The trial court correctly accepted parol

evidence on this issue.

The parol evidence, as discussed supra, indicated that the parties intended to address only

their pre-existing property, not property acquired after the marriage or entitlements to spousal

support. The trial court heard this evidence and reached the conclusion that the agreement did

not address spousal support. The trial court did not abuse its discretion in reaching this

6
Husband argues that Davis is not applicable here because the Davis agreement was
executed in 1982, prior to the effective date of the Virginia Premarital Agreement Act. Code
§ 20-147 (“This chapter shall apply to any premarital agreement executed on or after July 1,
1986.”). He contends that the definition of “property” in Code § 20-148, which includes
“income,” nullifies the analysis in Davis as it relates to agreements executed after July 1, 1986.
However, this statutory definition does not define spousal support as property, only income. The
definition is consistent with the finding in Davis that “the right to spousal support is not a
property interest, and it does not accrue by operation of law but only upon proof of entitlement.”
239 Va. at 661, 391 S.E.2d at 257. Virginia law still treats property interests and spousal support
entitlements separately. See Code §§ 20-107.1, 20-107.3. Therefore, we find Davis is applicable
here.
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conclusion and, therefore, did not err in awarding spousal support. See Strickland, 209 Va. at

445, 164 S.E.2d at 773.

C. The COAP

Husband argues that the trial court erred when it included in the COAP a provision

allowing wife’s share of the FERS pension go to the parties’ children upon her death.7 He claims

such a provision is an impermissible extension of the court’s power to distribute assets as limited

by Code § 20-107.3(C) and (G).

Husband does not argue that the Office of Personnel Management (OPM)8 will reject any

COAP containing this provision. In fact, provisions that assign pension benefits to the parties’

children are specifically permitted under the federal regulations. See 5 C.F.R. 838.237(b) (a

COAP is acceptable if it directs OPM “to pay, after the death of the former spouse, the former

spouse’s share of the employee annuity to . . . (4) One or more of the retiree’s children . . .”).

Husband admitted such provisions are acceptable to the federal government in a memorandum of

law that he filed with the trial court.

Code § 20-107.3(C) states, in pertinent part, that “[e]xcept as provided in subsection G,

the court shall have no authority to order the division or transfer of separate property or marital

property which is not jointly owned.” Subsection (G) addresses pensions specifically:

In addition to the monetary award made pursuant to subsection D,
and upon consideration of the factors set forth in subsection E:

1. The court may direct payment of a percentage of the marital
share of any pension, profit-sharing or deferred compensation plan
or retirement benefits, whether vested or nonvested, which

7
If this provision is not included in the COAP, then the money reverts to husband on
wife’s death. See 5 C.F.R. 838.237(a) (“Unless the [COAP] expressly provides otherwise, the
former spouse’s share of an employee annuity terminates on the last day of the month before the
death of the former spouse, and the former spouse’s share of employee annuity reverts to the
retiree.”).
8
OPM oversees and administers FERS pension plans. 5 C.F.R. § 838.101.
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 constitutes marital property and whether payable in a lump sum or
over a period of time. The court may order direct payment of such
percentage of the marital share by direct assignment to a party
from the employer trustee, plan administrator or other holder of the
benefits. However, the court shall only direct that payment be
made as such benefits are payable. No such payment shall exceed
50 percent of the marital share of the cash benefits actually
received by the party against whom such award is made. “Marital
share” means that portion of the total interest, the right to which
was earned during the marriage and before the last separation of
the parties, if at such time or thereafter at least one of the parties
intended that the separation be permanent.

2. To the extent permitted by federal or other applicable law, the
court may order a party to designate a spouse or former spouse as
irrevocable beneficiary during the lifetime of the beneficiary of all
or a portion of any survivor benefit or annuity plan of whatsoever
nature, but not to include a life insurance policy. The court, in its
discretion, shall determine as between the parties, who shall bear
the costs of maintaining such plan.

The COAP says: “In the event the [wife] predeceases [husband], the [wife] shall be

entitled to direct that her share of the annuity, which is her property, shall be paid to the

surviving children of the marriage in equal shares and she does hereby so direct.” This language

does not “order the division or transfer” of anything. Instead, this language acknowledges that,

as the trial court has ordered the division of the pension as allowed under Code § 20-107.3(G),

wife has certain entitlements given to her under the federal regulations.

The trial court did not “order” that wife be entitled to direct the survival benefit of her

portion of the pension – the order simply acknowledged this fact. The trial court also did not

“order” that wife designate the children as her beneficiaries – the order simply acknowledged the

fact that wife directed the OPM to so designate her portion of the pension. As this portion of the

pension belongs to wife, she is entitled to do with it as she pleases, within the regulations of the

pension plan. The trial court did not inappropriately exercise any judicial authority when it

included this sentence in the COAP.

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 III. Conclusion

The trial court did not err in finding the parties failed to effectively revoke their

antenuptial agreement. Given the wording of that agreement, the trial court appropriately

considered parol evidence and did not abuse its discretion in finding that the agreement dealt

only with the pre-marital assets of the parties. The trial court did not err in awarding spousal

support or in entering the COAP. The decision of the trial court is affirmed, and we deny each

party’s request for attorney’s fees incurred in their appeals.

Affirmed.

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Benton, J., concurring, in part, and dissenting, in part.

I dissent only from that portion of the opinion styled “The COAP.” I, otherwise, concur

in the opinion.

Code § 20-107.3 provides in pertinent part as follows:

The court may direct payment of a percentage of the marital
share of any pension, profit-sharing or deferred compensation plan
or retirement benefits, whether vested or nonvested, which
constitutes marital property and whether payable in a lump sum or
over a period of time. The court may order direct payment of such
percentage of the marital share by direct assignment to a party
from the employer trustee, plan administrator or other holder of the
benefits. However, the court shall only direct that payment be
made as such benefits are payable.

Code § 20-107.3(G)(1).

By order of August 16, 2006, the trial judge ordered the Federal Employees Retirement

System as follows:

In the event the Former Spouse predeceases the Employee, the
Former Spouse shall be entitled to direct that her share of the
annuity, which is her property, shall be paid to the surviving
children of the marriage in equal shares and she does hereby so
direct.9

9
The order also provides as follows:

The United States Office of Personnel Management is directed
to pay the Former Spouse’s share, as set forth above, directly to the
Former Spouse at the same time and in the same manner as
payments are made to the Employee. FERS shall commence
payment directly to the Former Spouse of her share of said
benefits, as and when paid to the Employee, and payments shall
continue thereafter for as long as the Employee has the right to
receive said annuity or until the death of either party.

(Emphasis added).

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I agree with the husband that this order exceeds the judge’s statutory authority. The Supreme

Court has “stated repeatedly that jurisdiction in divorce suits is purely statutory.” Lapidus v.

Lapidus, 226 Va. 575, 578, 311 S.E.2d 786, 788 (1984).

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