Robert M. McCombs v Rosemary M. McCombs

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COURT OF APPEALS OF VIRGINIA

Present: Judge Bray, Senior Judges Baker and Overton
Argued at Norfolk, Virginia

ROBERT M. McCOMBS
MEMORANDUM OPINION —
Vv. Record No. 0341-98-1 PER CURIAM
FEBRUARY 2, 1999
ROSEMARY M. McCOMBS

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Reeves W. Mahoney (Timothy M. Richardson;
Huff, Poole & Mahoney, P.C., on briefs), for
appellant.

Kenneth W. Stolle (Bennett & Stolle, P.C., on
brief), for appellee.

Relying upon the terms of a "Stipulation Agreement" with his
former wife, Rosemary M. McCombs (wife), Robert M. McCombs
(husband) moved the trial court to deny wife earnings which
accrued on her undistributed share of husband's "retirement
accounts" after the agreed valuation date. The court determined
that the agreement allotted wife a settled share of the subject
accounts "based on a valuation date of January 1, 1994,""

together with "the dividends and any interest on [wife's] portion

“Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.

“Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

‘Contrary to the recitation in the disputed order, the
agreement provides, "as valued on January 1, 1994."

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. . . [which] shall accrue from [that date] forward." 	Husband
appeals, contending that the ruling departs from the terms of the
agreement. 	We agree, and reverse the order.
When called upon to construe property settlement agreements,
"our threshold inquiry is whether their terms are ambiguous."
Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986).
"[A]mbiguity exists when [the] language admits of being
understood in more than one way or refers to two or more things
at the same time." 	Id. (citations omitted). 	Although the
parties to an agreement "may advance different interpretations of
the provisions . . ., this 'does not necessarily imply the
existence of ambiguity where there otherwise is none.'" 	Douglas
v. Hammett, 28 Va. App. 517, 523, 507 S.E.2d 98, 101 (1998)
(citation omitted).
Absent ambiguity, the rights of the parties are determined
by the language of the agreement, applied consistent with
"ordinary meaning" and without judicial revision. 	Smith, 3 Va.
App. at 514, 351 S.E.2d at 595. 	The "meaning and effect" of an
unambiguous agreement "are questions of law to be determined by
the court," and "we are not bound by [a] trial court's
construction of . . . contract provisions . . . in issue."
Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799
(1985).
Here, at the outset, we find no ambiguity in those
provisions of the agreement in issue. 	The language expressly

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provides for the transfer of "[f]ifty percent (50%) of husband's
retirement accounts . . . as valued on January 1, 1994," to
wife.2 "[S]egregat[ion] in a separate account . . . for wife"
was to occur "as soon as possible after entry of a final divorce
decree and . . . [Q.D.R.O.] prepared by wife's counsel." 	Such
language clearly manifests the intent of the parties that wife
later receive one-half of the aggregate value of the subject
accounts as determined on January 1, 1994, a date which preceded
the agreement by nearly two years, without mention of
subsequently accrued earnings.
The parties, therefore, did not contemplate the inclusion of
dividends and interest on wife's share. 	They simply agreed upon
an uncomplicated formula which permitted each to
contemporaneously and precisely determine their respective
benefits and burdens relative to the accounts, thereby promoting
a mutually acceptable and expeditious resolution of differences.
Accordingly, we reverse the disputed order and remand the
proceedings to the trial court for further disposition consistent
2 Retirement Accounts: As an obligation which
shall not be dischargeable in bankruptcy,
Wife shall receive Fifty percent (50%) of
Husband's retirement accounts at Eastern
Virginia Medical School . . . as valued on
January 1, 1994 which shall be "rolled over"
or separated or segregated into a separate
account or accounts for Wife as soon as
possible after entry of a final divorce
decree and a Qualified Domestic Relations
Order ("Q.R.D.O.") prepared by Wife's counsel
and endorsed by Husband's counsel.

with this opinion.

Reversed and remanded.