Thomas Allsbury v. Bettina Allsbury, n/k/a Robinson

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia

THOMAS C. ALLSBURY
OPINION BY
v. Record No. 2061-99-4 JUDGE ROBERT P. FRANK
SEPTEMBER 5, 2000
BETTINA ALLSBURY, N/K/A
BETTINA ROBINSON

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge Designate
Dennis Smith, Judge

John S. Petrillo (Schwartz & Ellis, Ltd., on
brief), for appellant.

Susan Massie Hicks (Steve W. Grist; Hicks &
Havrilak, P.C., on brief), for appellee.

Thomas C. Allsbury (husband) appeals an order of the trial

court holding that Bettina Allsbury's (wife) share of his State

Department pension did not terminate upon her remarriage prior

to the age of fifty-five. On appeal, husband contends 22 U.S.C.

§ 4054 disqualifies wife from receiving a share of the benefits

because she remarried prior to attaining the age of fifty-five.

Wife cross-appeals, contending the trial court erred in not

awarding her attorney's fees when she expended attorney's fees

in enforcing the Property Settlement Agreement. We hold that

the trial court did not err and affirm the trial court's

judgment.
 I. BACKGROUND

The parties married on July 18, 1987, and were divorced by

a final decree of the Fairfax County Circuit Court, which was

entered on April 3, 1998. Before and during the majority of the

years the parties were married, husband was employed by the

United States State Department and was entitled to retirement

benefits under the Foreign Service Retirement & Disability

System ("FSRDS").

On December 29, 1997, the parties entered into a Property

Settlement Agreement ("Agreement"), which was affirmed,

ratified, and incorporated into their final decree of divorce.

After the entry of the parties' final decree of divorce, wife

remarried. She was under fifty-five years of age at the time of

her remarriage.

Paragraph 13(C)of the Agreement provides, in part:

The Husband, Thomas C. Allsbury, is entitled
to certain benefits under the Foreign
Service Retirement and Disability System
("FSRDS"), 22 U.S.C.A. § 4044 et seq. The
Wife, Bettina Allsbury, shall receive
fifty-percent (50%) of the marital portion
of the Husband's FSRDS annuity or lump-sum
credit; such payments shall be paid directly
from the FSRDS if, as and when received by
the Husband. The marital portion shall be
defined as that portion of the Husband's
FSRDS retirement benefits accrued by Husband
from the date of the parties' marriage
through the date of the Husband's
termination of foreign service employment,
so that the Wife's portion is:

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Creditable months of FSRDS service from (Adjusted FSRDS
date of marriage to date of termination monthly pension
of foreign service employment x 50% or lump-sum
Total creditable months of FSRDS service annuity)

Paragraph 13(D) of the Agreement provides:

The Husband agrees that the Wife shall be
entitled to the foregoing FSRDS annuity or
lump-sum payment regardless of her marital
status to the extent allowable under federal
law. Husband agrees that if he remarries,
these benefits will be in no way diminished.

Paragraph 13(F) of the Agreement provides:

The Husband agrees that he will not merge
his benefits under the FSRDS with any other
pension, nor will he take any action so as
to defeat or reduce Wife's benefits.
Husband shall indemnify the Wife against any
breach by him hereof, and agrees to hold her
harmless against such breach. Thus, the
payments contemplated herein shall be made
to the Wife by the Husband if the Husband
takes any action to reduce, merge or defeat
Wife's interest in his FSRDS pension, at the
same rate and amount which would have been
paid to Wife in absence of such a breach.

Wife, by counsel, noticed husband for a hearing on March

12, 1999, for the entry of a Qualified Domestic Relations Order

to divide the aforementioned retirement benefits. The hearing

took place on April 2, 1999. Husband objected to entry of the

Qualified Domestic Relations Order.

The trial court ruled that, as a matter of law, the

language of the parties' Agreement was sufficient to waive the

federal law that would have disqualified wife, upon her

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remarriage before the age of fifty-five, from receiving a

portion of husband's foreign service retirement benefits.

Thereafter, wife filed a motion for attorney's fees. The

trial court denied the motion on July 16, 1999, on the ground

that the court was interpreting the Agreement, not enforcing it,

and that husband's position on the interpretation was

reasonable.

II. ANALYSIS

Husband contends that the phrase, "to the extent allowable

under federal law," required the trial court to terminate wife's

entitlement to pension benefits because federal law would

terminate said benefits upon her remarriage before the age of

fifty-five. Further, husband contends that paragraph 13(D) of

the Agreement does not expressly manifest an intention to waive

federal law that would otherwise disqualify wife from receiving

any portion of husband's retirement benefits.

The FSRDS provides, "A former spouse shall not be qualified

for an annuity under this subsection if before the commencement

of that annuity the former spouse remarries before becoming 60

years of age." 1 22 U.S.C. § 4054(a)(2). This provision is

frequently referred to as the "marriage disqualifier." However,

the FSRDS establishes that the parties may vary the amount of

the Foreign Service Retirement benefits payable to a former

1
As of January 1, 1987, Congress reduced the marriage
disqualifier to fifty-five years of age. See 22 U.S.C. § 4068.

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spouse when "expressly provided by any spousal agreement or

court order." 22 U.S.C. § 4054(a)(1). Furthermore, the FSRDS

provides that a former spouse's entitlement to any annuity or to

any lump-sum credit "shall be determined in accordance with that

spousal agreement or court order, if and to the extent expressly

provided for in the terms of that spousal agreement or court

order." 22 U.S.C. § 4060(b)(1)(A). The FSRDS allows the

parties to expressly agree to vary a former spouse's entitlement

to a share of an annuitant's Foreign Service Retirement

benefits.

The narrow issue in this case is whether paragraph 13(D) of

the Agreement waives the FSRDS's "marriage disqualifier"

provision.

Husband correctly notes that a spousal agreement or court

order has the legal effect of altering a former spouse's

entitlement under 22 U.S.C. § 4054 only "if and to the extent

expressly provided for in the terms of that spousal agreement or

court order." Id. Husband contends the Agreement does not

alter wife's entitlement and explicitly states that her

entitlement is governed, and specifically precluded, by federal

law. As federal law does not permit a former spouse to receive

retirement benefits should that spouse remarry before the age of

fifty-five, husband concludes the phrase in the parties'

Agreement "to the extent allowable under federal law" precludes

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wife from receiving benefits upon her remarriage before the age

of fifty-five.

"Property settlement and support agreements are subject to

the same rules of construction and interpretation applicable to

contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180,

355 S.E.2d 342, 346 (1987) (citation omitted). When the sole

issue is the meaning and effect of the terms of the contract,

the issue "is a question of law which can readily be ascertained

by this court." Id. (citation omitted).

[B]ecause a separation agreement is a
contract and must be construed as
such . . . the intent of the parties as
expressed in the contract controls. Where
the agreement is plain and unambiguous in
its terms, the rights of the parties are to
be determined from the terms of the
agreement.

Gayler v. Gayler, 20 Va. App. 83, 86, 455 S.E.2d 278, 280 (1995)

(citations omitted). An ambiguity exists when language admits

"of being understood in more than one way, or of referring to

two or more things at the same time." Berry v. Klinger, 225 Va.

201, 207, 300 S.E.2d 792, 796 (1983) (citation omitted).

The court must give effect to all of
the language of a contract if its parts can
be read together without conflict. Where
possible, meaning must be given to every
clause. The contract must be read as a
single document. Its meaning is to be
gathered from all its associated parts
assembled as the unitary expression of the
agreement of the parties. However
inartfully it may have been drawn, the court

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 cannot make a new contract for the parties,
but must construe its language as written.

Id. at 208, 300 S.E.2d at 796 (citation omitted).

Husband cites Wilson v. Collins, 27 Va. App. 411, 499

S.E.2d 560 (1998), to support his position. The issue in Wilson

is the same as we address in the instant case. In Wilson, we

found no waiver of the "marriage disqualifier":

We hold that the language of paragraph
fourteen of the agreement and paragraph
seven of the amendment does not constitute
an express negation of the "remarriage
clause" of 22 U.S.C. § 4054(a)(2). The only
issues expressly addressed in these
paragraphs are (1) the percentage of wife's
share of husband's annuity upon his
retirement or earlier separation from the
foreign service, (2) wife's entitlement to a
separate "survivor annuity," and (3)
husband's duty to perfect wife's entitlement
by filing the required paperwork. Neither
paragraph includes any reference to 22
U.S.C. § 4054(a)(2) or the issue of whether
wife's entitlement to a share of husband's
retirement annuity is contingent upon her
remaining unmarried. Although each
paragraph states that wife "shall receive"
the enumerated benefits, the intent of the
parties to extend wife's statutory
entitlement beyond the subsequent occurrence
of her remarriage before the age of sixty
can only, at most, be implied from this
language. Because the intent of the parties
to abrogate the effect of 22 U.S.C.
§ 4054(a)(2) is not manifest from the terms
of their agreement, that code section
applies to wife.

Id. at 422, 499 S.E.2d at 565 (citation omitted).

Unlike Wilson, the parties in this case created a

comprehensive Agreement that ensured wife her share of

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retirement benefits. They created a formula to derive wife's

percentage share. They agreed to this entitlement regardless of

wife's marital status. They addressed every situation where

husband might attempt to defeat or reduce wife's benefits.

Husband agreed to indemnify the wife if he took such action.

Reading the Agreement as a whole, it is obvious that the parties

agreed for wife to receive the pension benefits no matter what

occurred, including remarriage.

Husband's argument that the phrase, "to the extent

allowable under federal law," defeats the benefit is repugnant

to the scheme of the Agreement. At oral argument, husband

contended the words "marital status" referred to wife's present

marital status, not her status upon remarriage. We find no

merit in the position. Further, this argument is inconsistent

with the argument offered in husband's brief.

We are obligated to interpret the phrase, "to the extent

allowable under federal law," to be consistent with the entire

Agreement. We, therefore, conclude that the phrase does not

modify "marital status" but means to the extent the parties can

waive the marriage disqualifier provision of federal law.

We, therefore, conclude, pursuant to federal law, the

parties expressly waived the marriage disqualifier.

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 III. ATTORNEY'S FEES

Wife contends that because she was forced to enforce the

terms of the Agreement, the trial court was obligated to award

attorney fees under § 25(C) of the Agreement, which states:

Should a party breach any of the provisions
of this agreement, such party shall be
liable to the other party for all of his or
her reasonable legal fees and all reasonable
costs necessary to enforce this agreement,
and if any court proceedings arise from any
alleged breach, the prevailing party shall
be entitled to have the other party pay his
or her reasonable legal fees and all
reasonable costs.

Yet, Section 25(D) of the Agreement states that where the

parties cannot agree on disputed matters, the trial court has

the power to award counsel fees and costs against a party who

the court finds acted unreasonably. The trial court, in denying

an award of attorney's fees, found husband's action reasonable

in challenging the waiver of the marriage disqualifer.

An award of attorney's fees rests within the sound

discretion of the trial court. See Coady v. Strategic

Resources, Inc., 258 Va. 12, 18, 515 S.E.2d 273, 276 (1999).

We find the trial court did not abuse its discretion in

refusing to award wife her attorney's fees.

For these reasons, we affirm the judgment of the trial

court.

Affirmed.

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